Common use of ERISA Representations and Warranties Clause in Contracts

ERISA Representations and Warranties. Grantor hereby represents, warrants and agrees that as of the date hereof, either (a) investors in or owners of the Grantor which are (i) employee benefit plans as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) plans defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended, and (iii) entities the assets of which are deemed to include plan assets pursuant to U.S. Department of Labor Regulation Section 2510.3-101 (the “Plan Asset Regulation”) (collectively, “Benefit Plan Investors”) in the aggregate do not hold twenty-five percent (25%) or more (directly or indirectly) of the value of any class of equity interest in [DEED TO SECURE DEBT AND SECURITY AGREEMENT] ING Xx. 00000 xxx Xxxxxxx, xx (x) the equity interests held by Benefit Plan Investors are publicly-offered securities (within the meaning of Department of Labor Regulation 2510.3-101(b)(2)). For purposes of this determination, the value of any equity interests held by a person (other than a Benefit Plan Investor) who has discretionary authority or control with respect to the assets of the Grantor or any person who provides investment advice for a fee (direct or indirect) with respect to such assets, or an affiliate (as defined in U.S. Department of Labor Regulation Section 2510.2-101(f)(3)) of such person, shall be disregarded. Grantor further represents, warrants and agrees that at all times during the term of the Loan Grantor shall not be deemed to include plan assets. If at any time during the entire term of the Loan any of the investors in or owners of Grantor shall include a Benefit Plan Investor, and the Plan Asset Regulation is implicated, Grantor shall as soon as reasonably possible following an investment by such Benefit Plan Investor provide Grantee with an opinion of counsel reasonably satisfactory to Grantee indicating that the assets of Grantor are not deemed to include plan assets pursuant to the Plan Asset Regulation. In lieu of such opinion, the Grantee may in its sole discretion accept such other assurances from Grantor as are necessary to satisfy Grantee in its sole discretion that the assets of Grantor are not deemed to include plan assets pursuant to the Plan Asset Regulation. Grantor further represents, warrants and agrees that, during the term of the Loan, a governmental plan, within the meaning of Section 3(32) of ERISA (a “Governmental Plan”), shall become an investor in or owner of Grantor, only if a determination has been made that such Governmental Plan’s investment in or ownership of Grantor should not constitute a nonexempt prohibited transaction under any applicable state law (for purposes of this Paragraph, a “Prohibited Transaction”) that (i) applies to the Governmental Plan and (ii) is similar to the prohibited transaction rules under Section 406 of ERISA. If such Governmental Plan’s investment in or ownership of Grantor nevertheless results in a nonexempt Prohibited Transaction that subjects Grantee to liability for such Prohibited Transaction, Grantor will promptly take appropriate action to correct such Prohibited Transaction and will reimburse Grantee for any penalty or tax Grantee is required to pay in connection therewith. Notwithstanding the foregoing, the breach by Grantor of the foregoing representation and warranty will not be an “Event of Default” under the Loan Documents unless such Governmental Plan’s investment in or ownership of Grantor is deemed by the applicable governmental authority to be a “Prohibited Transaction” that actually subjects Grantee to liability as a direct result thereof and Grantor shall have failed to correct the same pursuant to the terms of this Paragraph. Grantor understands that the representations and warranties herein are a material inducement to Grantee to make the Loan, without which Grantee would be unwilling to make the Loan.

ERISA Representations and Warranties. Grantor hereby represents, warrants and agrees that as of the date hereof, either (a) investors in or owners of the Grantor which are (i) employee benefit plans as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) plans defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended, and (iii) entities the assets of which are deemed to include plan assets pursuant to U.S. Department of Labor Regulation Section 2510.3-101 (the “Plan Asset Regulation”) (collectively, “Benefit Plan Investors”) in the aggregate do not hold twenty-five percent (25%) or more (directly or indirectly) of the value of any class of equity interest in [DEED TO SECURE DEBT AND SECURITY AGREEMENT] ING Xx. 00000 xxx Xxxxxxxthe Grantor, xx or (xb) the equity interests held by Benefit Plan Investors are publicly-offered securities (within the meaning of Department of Labor Regulation 2510.3-101(b)(2)). For purposes of this determination, the value of any equity interests held by a person (other than a Benefit Plan Investor) who has discretionary authority or control with respect to the assets of the Grantor or any person who provides investment advice for a fee (direct or indirect) with respect to such assets, or an affiliate (as defined in U.S. Department of Labor Regulation Section 2510.2-101(f)(3)) of such person, shall be disregarded. Grantor further represents, warrants and agrees that at all times during the term of the Loan Grantor shall not be deemed to include plan assets. If at any time during the entire term of the Loan any of the investors in or owners of Grantor shall include a Benefit Plan Investor, and the Plan Asset Regulation is implicated, Grantor shall as soon as reasonably possible following an investment by such Benefit Plan Investor provide Grantee Beneficiary with an opinion of counsel reasonably satisfactory to Grantee Beneficiary indicating that the assets of Grantor are not deemed to include plan assets pursuant to the Plan Asset Regulation. In lieu of such opinion, the Grantee Beneficiary may in its sole discretion accept such other assurances from Grantor as are necessary to satisfy Grantee Beneficiary in its sole discretion that the assets of Grantor are not deemed to include plan assets pursuant to the Plan Asset Regulation. Grantor further represents, warrants and agrees that, during the term of the Loan, a governmental plan, within the meaning of Section 3(32) of ERISA (a “Governmental Plan”), shall become an investor in or owner of Grantor, only if a determination has been made that such Governmental Plan’s investment in or ownership of Grantor should not constitute a nonexempt prohibited transaction under any applicable state law (for purposes of this Paragraph, a “Prohibited Transaction”) that (i) applies to the Governmental Plan and (ii) is similar to the prohibited transaction rules under Section 406 of ERISA. If such Governmental Plan’s investment in or ownership of Grantor nevertheless results in a nonexempt Prohibited Transaction that subjects Grantee Beneficiary to liability for such Prohibited Transaction, Grantor will promptly take appropriate action to correct such Prohibited Transaction and will reimburse Grantee Beneficiary for any penalty or tax Grantee Beneficiary is required to pay in connection therewith. Notwithstanding the foregoing, the breach by Grantor of the foregoing representation and warranty will not be an “Event of Default” under the Loan Documents unless such Governmental Plan’s investment in or ownership of Grantor is deemed by the applicable governmental authority to be a “Prohibited Transaction” that actually subjects Grantee Beneficiary to liability as a direct result thereof and Grantor shall have failed to correct the same pursuant to the terms of this Paragraph. Grantor understands that the representations and warranties herein are a material inducement to Grantee Beneficiary to make the Loan, without which Grantee Beneficiary would be unwilling to make the Loan.

ERISA Representations and Warranties. Grantor Mortgagor hereby represents, warrants and agrees that as of the date hereof, either (a) investors in or owners of the Grantor Mortgagor which are (i) employee benefit plans as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) plans defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended, and (iii) entities the assets of which are deemed to include plan assets pursuant to U.S. Department of Labor Regulation Section 2510.3-101 (the “Plan Asset Regulation”) (collectively, “Benefit Plan Investors”) in the aggregate do not hold twenty-five percent (25%) or more (directly or indirectly) of the value of any class of equity interest in [DEED TO SECURE DEBT AND SECURITY AGREEMENT] ING Xx. 00000 xxx Xxxxxxxthe Mortgagor, xx or (xb) the equity interests held by Benefit Plan Investors are publicly-offered securities (within the meaning of Department of Labor Regulation 2510.3-101(b)(2)). For purposes of this determination, the value of any equity interests held by a person (other than a Benefit Plan Investor) who has discretionary authority or control with respect to the assets of the Grantor Mortgagor or any person who provides investment advice for a fee (direct or indirect) with respect to such assets, or an affiliate (as defined in U.S. Department of Labor Regulation Section 2510.2-101(f)(3)) of such person, shall be disregarded. Grantor Mortgagor further represents, warrants and agrees that at all times during the term of the Loan Grantor Affiliate Loans Mortgagor shall not be deemed to include plan assets. If at any time during the entire term of the Loan Affiliate Loans any of the investors in or owners of Grantor Mortgagor shall include a Benefit Plan Investor, and the Plan Asset Regulation is implicated, Grantor Mortgagor shall as soon as reasonably possible following an investment by such Benefit Plan Investor provide Grantee Mortgagee with an opinion of counsel reasonably satisfactory to Grantee Mortgagee indicating that the assets of Grantor Mortgagor are not deemed to include plan assets pursuant to the Plan Asset Regulation. In lieu of such opinion, the Grantee Mortgagee may in its sole discretion accept such other assurances from Grantor Mortgagor as are necessary to satisfy Grantee Mortgagee in its sole discretion that the assets of Grantor Mortgagor are not deemed to include plan assets pursuant to the Plan Asset Regulation. Grantor Mortgagor further represents, warrants and agrees that, during the term of the LoanAffiliate Loans, a governmental plan, within the meaning of Section 3(32) of ERISA (a “Governmental Plan”), shall become an investor in or owner of GrantorMortgagor, only if a determination has been made that such Governmental Plan’s investment in or ownership of Grantor Mortgagor should not constitute a nonexempt prohibited transaction under any applicable state law (for purposes of this Paragraph, a “Prohibited Transaction”) that (i) applies to the Governmental Plan and (ii) is similar to the prohibited transaction rules under Section 406 of ERISA. If such Governmental Plan’s investment in or ownership of Grantor Mortgagor nevertheless results in a nonexempt Prohibited Transaction that subjects Grantee Mortgagee to liability for such Prohibited Transaction, Grantor Mortgagor will promptly take appropriate action to correct such Prohibited Transaction and will reimburse Grantee Mortgagee for any penalty or tax Grantee Mortgagee is required to pay in connection therewith. Notwithstanding the foregoing, the breach by Grantor Mortgagor of the foregoing representation and warranty will not be an “Event of Default” under the Loan Documents unless such Governmental Plan’s investment in or ownership of Grantor Mortgagor is deemed by the applicable governmental authority to be a “Prohibited Transaction” that actually subjects Grantee Mortgagee to liability as a direct result thereof and Grantor Mortgagor shall have failed to correct the same pursuant to the terms of this Paragraph. Grantor Mortgagor understands that the representations and warranties herein are a material inducement to Grantee Mortgagee to make the LoanAffiliate Loans, without which Grantee Mortgagee would be unwilling to make the LoanAffiliate Loans.

ERISA Representations and Warranties. Grantor Mortgagor hereby represents, warrants and agrees that as of the date hereof, either (a) investors in or owners of the Grantor Mortgagor which are (i) employee benefit plans as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) plans defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended, and (iii) entities the assets of which are deemed to include plan assets pursuant to U.S. Department of Labor Regulation Section 2510.3-101 (the “Plan Asset Regulation”) (collectively, “Benefit Plan Investors”) in the aggregate do not hold twenty-five percent (25%) or more (directly or indirectly) of the value of any class of equity interest in [DEED TO SECURE DEBT AND SECURITY AGREEMENT] ING Xx. 00000 xxx Xxxxxxxthe Mortgagor, xx or (xb) the equity interests held by Benefit Plan Investors are publicly-offered securities (within the meaning of Department of Labor Regulation 2510.3-101(b)(2)). For purposes of this determination, the value of any equity interests held by a person (other than a Benefit Plan Investor) who has discretionary authority or control with respect to the assets of the Grantor Mortgagor or any person who provides investment advice for a fee (direct or indirect) with respect to such assets, or an affiliate (as defined in U.S. Department of Labor Regulation Section 2510.2-101(f)(3)) of such person, shall be disregarded. Grantor Mortgagor further represents, warrants and agrees that at all times during the term of the Loan Grantor Mortgagor shall not be deemed to include plan assets. If at any time during the entire term of the Loan any of the investors in or owners of Grantor Mortgagor shall include a Benefit Plan Investor, and the Plan Asset Regulation is implicated, Grantor Mortgagor shall as soon as reasonably possible following an investment by such Benefit Plan Investor provide Grantee Mortgagee with an opinion of counsel reasonably satisfactory to Grantee Mortgagee indicating that the assets of Grantor Mortgagor are not deemed to include plan assets pursuant to the Plan Asset Regulation. In lieu of such opinion, the Grantee Mortgagee may in its sole discretion accept such other assurances from Grantor Mortgagor as are necessary to satisfy Grantee Mortgagee in its sole discretion that the assets of Grantor Mortgagor are not deemed to include plan assets pursuant to the Plan Asset Regulation. Grantor Mortgagor further represents, warrants and agrees that, during the term of the Loan, a governmental plan, within the meaning of Section 3(32) of ERISA (a “Governmental Plan”), shall become an investor in or owner of GrantorMortgagor, only if a determination has been made that such Governmental Plan’s investment in or ownership of Grantor Mortgagor should not constitute a nonexempt prohibited transaction under any applicable state law (for purposes of this Paragraph, a “Prohibited Transaction”) that (i) applies to the Governmental Plan and (ii) is similar to the prohibited transaction rules under Section 406 of ERISA. If such Governmental Plan’s investment in or ownership of Grantor Mortgagor nevertheless results in a nonexempt Prohibited Transaction that subjects Grantee Mortgagee to liability for such Prohibited Transaction, Grantor Mortgagor will promptly take appropriate action to correct such Prohibited Transaction and will reimburse Grantee Mortgagee for any penalty or tax Grantee Mortgagee is required to pay in connection therewith. Notwithstanding the foregoing, the breach by Grantor Mortgagor of the foregoing representation and warranty will not be an “Event of Default” under the Loan Documents unless such Governmental Plan’s investment in or ownership of Grantor Mortgagor is deemed by the applicable governmental authority to be a “Prohibited Transaction” that actually subjects Grantee Mortgagee to liability as a direct result thereof and Grantor Mortgagor shall have failed to correct the same pursuant to the terms of this Paragraph. Grantor Mortgagor understands that the representations and warranties herein are a material inducement to Grantee Mortgagee to make the Loan, without which Grantee Mortgagee would be unwilling to make the Loan.