ERISA. (i) 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 5.1(h); (ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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; (iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
Appears in 16 contracts
Samples: Credit Agreement (Cooper River Properties LLC), Credit Agreement (Cooper River Properties LLC), Credit Agreement (Cooper River Properties LLC)
ERISA. Except as set forth in Schedule 5.16, neither the Corporation nor any entity required to be aggregated with the Corporation under Sections 414(b), (c), (m) or (n) of the Code (as hereinafter defined), sponsors, maintains, has any obligation to contribute to, has any liability under, or is otherwise a party to, any Benefit Plan. For purposes of this Agreement, “Benefit Plan” shall mean any plan, fund, program, policy, arrangement or contract, whether formal or informal, which is in the nature of (i) Neither any qualified or non-qualified employee pension benefit plan (as defined in Section 3(2) of the Borrower nor any ERISA Affiliate maintains Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower an employee welfare benefit plan (as defined in section 3(1) of ERISA). With respect to each Benefit Plan listed in Schedule 5.16, to the extent applicable:
(a) Each such Benefit Plan has been maintained and each ERISA Affiliate is operated in all material respects in compliance with its terms and with all applicable provisions of ERISA ERISA, the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations all statutes, orders, rules, regulations, and published interpretations thereunder with respect other authority which are applicable to all Employee such Benefit Plans except for Plan;
(b) All contributions required by law to have been made under each such Benefit Plan (without regard to any required amendments for which the remedial amendment period as defined in waivers granted under Section 401(b) 412 of the Code has not yet expired. Code) to any fund or trust established thereunder in connection therewith have been made by the due date thereof:
(c) Each Employee such Benefit Plan that is intended to be qualified qualify under Section 401(a) of the Code has been determined is the subject of a favorable unrevoked determination letter issued by the Internal Revenue Service as to its qualified status under the Code, which determination letter may still be so qualifiedrelied upon as to such tax qualified status, and each trust related to no circumstances have occurred that would adversely affect the tax qualified status of any such plan has been determined to be exempt under Section 501(a) of the Code. 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;
(iiid) No Pension The actuarial present value of all accrued benefits under each such Benefit Plan subject to Title IV of ERISA did not, as of the Borrower has been terminatedlatest valuation date of such Benefit Plan, and to exceed the knowledge then current value of the Borrower no Pension assets of such Benefit Plan allocable to such accrued benefits, all as based upon the actuarial assumptions and methods currently used for such Benefit Plan;
(e) None of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (such Benefit Plans that are “employee welfare benefit plans” as defined in Section 412 3(1) of the Code) been incurred (without regard to ERISA provides for continuing benefits or coverage for any waiver granted under Section 412 participant or beneficiary of the Code)any participant after such participant’s termination of employment, nor has any funding waiver from the Internal Revenue Service 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 except as required by applicable law; and
(f) Neither the Corporation nor any trade or business (whether or not incorporated) under common control with the Corporation within the meaning of Section 412 of the Code, Section 302 4001 of ERISA has, or the terms of at any Pension Plan prior time has had, any obligation to the due dates of such contributions under contribute to any “multiemployer plan” as defined in Section 412 of the Code or Section 302 3(37) 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;.
Appears in 13 contracts
Samples: Series B 2 Convertible Preferred Stock and Warrant Purchase Agreement, License Agreement (Radius Health, Inc.), Series a 1 Convertible Preferred Stock Purchase Agreement (Radius Health, Inc.)
ERISA. (iThe present value of all vested benefits under each “employee pension benefit plan” as such term is defined in Section 3(2) Neither the Borrower nor any ERISA Affiliate maintains or contributes toof ERISA, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate a Multiemployer Plan, that is in material compliance with all applicable provisions subject to Title IV of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred sponsored or maintained 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;
(iii) No Pension Plan of the Borrower has been terminated, and or to which the knowledge Borrower or any ERISA Affiliate of the Borrower no contributes or has an obligation to contribute, or has any liability (each, a “Pension Plan”), does not exceed by a material amount the value of the assets of the Pension Plan allocable to such vested benefits (based on the value of such assets as of the last annual valuation date for the Pension Plan) determined in accordance with the assumptions used for funding such Pension Plan pursuant to Sections 412 and 430 of the Code for the applicable plan year. No prohibited transactions (within the meaning of ERISA Section 406(a) or (b) or Code Section 4975, for which an exemption is not available or has not previously been obtained from the United States Department of Labor), failure by the Borrower to meet the minimum funding standard set forth in Section 302(a) of ERISA and Section 412(a) of the Code, withdrawal by the Borrower or any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency of the Borrower from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a “substantial employer” (as defined in Section 412 4001(a)(2) of the Code) been incurred (without regard to any waiver granted under Section 412 of the CodeERISA), nor has any funding waiver from the Internal Revenue Service been received or requested Reportable Events have occurred with respect to any Pension Plan, nor has which either individually or in the Borrower or any ERISA Affiliate failed aggregate is reasonably expect to make any contributions or result in a material liability to pay any amounts due and owing as required by Section 412 the Borrower. No notice of the Code, Section 302 of ERISA or the terms of any intent to terminate a Pension Plan prior to has been filed by the due dates of such contributions plan administrator under Section 412 of the Code or Section 302 4041 of ERISA, nor has there any Pension Plan been any event requiring any disclosure terminated under Section 4041(c)(3)(C) 4041 of ERISA, in either event, that is reasonably expected to result in a material liability to the Borrower. The Pension Benefit Guaranty Corporation has not instituted proceedings to terminate or 4063(a) appointed a trustee to administer a Pension Plan under Section 4042 of ERISA, and no event has occurred or condition exists which constitutes grounds under Section 4042 of ERISA with respect for the termination of, or the appointment of a trustee to administer, any Pension Plan;.
Appears in 10 contracts
Samples: Loan and Servicing Agreement (Star Mountain Lower Middle-Market Capital Corp), Loan and Servicing Agreement (Star Mountain Lower Middle-Market Capital Corp), Loan and Servicing Agreement (Star Mountain Lower Middle-Market Capital Corp)
ERISA. (iThe present value of all vested benefits under each “employee pension benefit plan” as such term is defined in Section 3(2) Neither the Borrower nor any ERISA Affiliate maintains or contributes toof ERISA, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate a Multiemployer Plan, that is in material compliance with all applicable provisions subject to Title IV of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred sponsored or maintained 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;
(iii) No Pension Plan of the Borrower has been terminated, and or to which the knowledge Borrower or any ERISA Affiliate of the Borrower no contributes or has an obligation to contribute, or has any liability (each, a “Pension Plan”), does not exceed the value of the assets of the Pension Plan allocable to such vested benefits (based on the value of such assets as of the last annual valuation date for the Pension Plan) determined in accordance with the assumptions used for funding such Pension Plan pursuant to Sections 412 and 430 of the Code for the applicable plan year. No prohibited transactions (within the meaning of ERISA Section 406(a) or (b) or Code Section 4975, for which an exemption is not available or has not previously been obtained from the United States Department of Labor), failure by the Borrower to meet the minimum funding standard set forth in Section 302(a) of ERISA and Section 412(a) of the Code, withdrawal by the Borrower or any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency of the Borrower from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a “substantial employer” (as defined in Section 412 4001(a)(2) of the Code) been incurred (without regard to any waiver granted under Section 412 of the CodeERISA), nor has any funding waiver from the Internal Revenue Service been received or requested Reportable Events have occurred with respect to any Pension Plan, nor has the Borrower or any ERISA Affiliate failed . No notice of intent to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any terminate a Pension Plan prior to has been filed by the due dates of such contributions plan administrator under Section 412 of the Code or Section 302 4041 of ERISA, nor has there any Pension Plan been any event requiring any disclosure terminated under Section 4041(c)(3)(C) 4041 of ERISA, nor has the Pension Benefit Guaranty Corporation instituted proceedings to terminate or 4063(a) appointed a trustee to administer a Pension Plan under Section 4042 of ERISA, and no event has occurred or condition exists which constitutes grounds under Section 4042 of ERISA with respect for the termination of, or the appointment of a trustee to administer, any Pension Plan;.
Appears in 8 contracts
Samples: Loan and Servicing Agreement (SLR Investment Corp.), Loan and Servicing Agreement (SLR Investment Corp.), Ninth Amendment to the Loan and Servicing Agreement (SLR Senior Investment Corp.)
ERISA. (iThe present value of all vested benefits under each “employee pension benefit plan” as such term is defined in Section 3(2) Neither of ERISA, other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower nor Servicer or any ERISA Affiliate maintains of the Servicer or to which the Servicer or any ERISA Affiliate of the Servicer contributes toor has an obligation to contribute, or has any obligation underliability (each, any Employee Benefit Plans other than those identified a “Servicer Pension Plan”) does not exceed the value of the assets of the Servicer Pension Plan allocable to such vested benefits (based on Schedule 5.1(hthe value of such assets as of the last annual valuation date for the Servicer Pension Plan) determined in accordance with the assumptions used for funding such Servicer Pension Plan pursuant to Sections 412 and 430 of the Code for the applicable plan year. No prohibited transactions (within the meaning of ERISA Section 406(a) or (b) or Code Section 4975, for which an exemption is not available or has not previously been obtained from the United States Department of Labor);
(ii, failure by the Servicer to meet the minimum funding standard set forth in Section 302(a) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a412(a) of the Code. No liability has been incurred , withdrawal by the Borrower Servicer or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No of the Servicer from a Servicer Pension Plan subject to Section 4063 of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency during a plan year in which it was a “substantial employer” (as defined in Section 412 4001(a)(2) of the CodeERISA) been incurred (without regard to any waiver granted or cessation of operations that is treated as such a withdrawal under Section 412 4062(e) of the Code)ERISA, nor has any funding waiver from the Internal Revenue Service been received or requested Reportable Events have occurred with respect to any Servicer Pension Plan, nor has the Borrower or any ERISA Affiliate failed . No notice of intent to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any terminate a Servicer Pension Plan prior to has been filed by the due dates of such contributions plan administrator under Section 412 of the Code or Section 302 4041 of ERISA, nor has there any Servicer Pension Plan been any event requiring any disclosure terminated under Section 4041(c)(3)(C) 4041 of ERISA, nor has the Pension Benefit Guaranty Corporation instituted proceedings to terminate or 4063(a) appointed a trustee to administer a Servicer Pension Plan under Section 4042 of ERISA, and no event has occurred or condition exists which constitutes grounds under Section 4042 of ERISA with respect for the termination of, or the appointment of a trustee to administer, any Servicer Pension Plan;.
Appears in 8 contracts
Samples: Loan and Servicing Agreement (SLR Investment Corp.), Loan and Servicing Agreement (SLR Investment Corp.), Ninth Amendment to the Loan and Servicing Agreement (SLR Senior Investment Corp.)
ERISA. Except as set forth on Schedule 6.01(i), (i) Neither each Loan Party and each Employee Plan and Pension Plan is in compliance with all Requirements of Law in all material respects, including ERISA, the Borrower nor any ERISA Affiliate maintains or contributes toInternal Revenue Code and the Patient Protection and Affordable Care Act of 2010, or has any obligation underas amended by the Health Care and Education Reconciliation Act of 2010, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each no ERISA Affiliate Event has occurred nor is in material compliance with all applicable provisions of ERISA and the regulations and published interpretations thereunder reasonably expected to occur with respect to all any Employee Benefit Plans except for Plan, Pension Plan or Multiemployer Plan, (iii) copies of each agreement entered into with the PBGC, the U.S. Department of Labor or the Internal Revenue Service with respect to any required amendments for which Employee Plan or Pension Plan have been delivered to the remedial amendment period as defined in Section 401(bAgents, and (iv) of the Code has not yet expired. Each each Employee Benefit Plan and Pension Plan that is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has been determined by the Internal Revenue Service to be so qualified, qualified under Section 401(a) of the Internal Revenue Code and each the trust related to such plan has been determined to be thereto is exempt from federal income tax under Section 501(a) of the Internal Revenue Code. No liability has been incurred by the Borrower Loan Party or any of its ERISA Affiliate Affiliates has incurred any material liability to the PBGC which remains unsatisfied outstanding other than the payment of premiums, and there are no premium payments which have become due and which are unpaid with respect to a Pension Plan. There are no pending or, to the best knowledge of any Loan Party, threatened material claims, actions, proceedings or lawsuits (other than claims for benefits in the ordinary course) asserted or instituted against (A) any taxes Employee Plan, Pension Plan, or penalties their respective assets, (B) any fiduciary with respect to any Employee Benefit Plan or Pension Plan, or (C) any Multiemployer Loan Party or any of its ERISA Affiliates with respect to any Employee Plan or Pension Plan;
(iii) No Pension Plan . Except as required by Section 4980B of the Borrower has been terminatedInternal Revenue Code, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency Loan Party maintains an employee welfare benefit plan (as defined in Section 412 3(1) of ERISA) that provides health benefits (through the Codepurchase of insurance or otherwise) been incurred (without regard to for any waiver granted under Section 412 retired or former employee of the Code), nor any Loan Party or has any funding waiver from the Internal Revenue Service been received or requested with respect obligation to provide any Pension Plan, nor has the Borrower or such benefits for any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 current employee after such employee’s termination of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;employment.
Appears in 8 contracts
Samples: Senior Secured Superpriority Priming Debtor in Possession Financing Agreement (AgileThought, Inc.), Financing Agreement (AgileThought, Inc.), Financing Agreement (AgileThought, Inc.)
ERISA. Borrower shall not: (ia) Neither the Borrower nor engage in or permit any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
transaction which could result in a “prohibited transaction” (ii) The Borrower and each ERISA Affiliate as such term is in material compliance with all applicable provisions of 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(b406 of ERISA) or in the imposition of an excise tax pursuant to Section 4975 of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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 Borrower Benefit Plan Plan; (b) engage in or permit any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency transaction or other event which could result in a “reportable event” (as such term is defined in Section 412 4043 of ERISA) for any Borrower Pension Plan; (c) fail to make full payment when due of all amounts which, under the provisions of any Borrower Benefit Plan, Borrower is required to pay as contributions thereto; (d) permit to exist any “accumulated funding deficiency” (as such term is defined in Section 302 of ERISA) as of the Codeend of any Fiscal Year, in excess of five percent (5.0%) been incurred of net worth (without regard to any waiver granted under Section 412 determined in accordance with GAAP) of the Code)Borrower and its Consolidated Subsidiaries, nor has any funding waiver from the Internal Revenue Service been received whether or requested not waived, with respect to any Borrower Pension Plan, nor has the Borrower or any ERISA Affiliate failed ; (e) fail to make any contributions payments to any Multiemployer Plan that Borrower may be required to make under any agreement relating to such Multiemployer Plan or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA law pertaining thereto; or the terms of (f) terminate any Borrower Pension Plan prior in a manner which could result in the imposition of a lien on any property of Borrower pursuant to Section 4068 of ERISA. Borrower shall not terminate any Borrower Pension Plan so as to result in any liability to the due dates of such contributions under Section 412 of the Code or Section 302 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;PBGC.
Appears in 8 contracts
Samples: Credit Agreement (CHS Inc), Credit Agreement (CHS Inc), Credit Agreement (CHS Inc)
ERISA. (i) Neither the Borrower nor the REIT shall permit any ERISA Affiliate maintains Affiliates to do any of the following to the extent that such act or contributes tofailure to act would result in the aggregate, after taking into account any other such acts or failure to act, in a Material Adverse Effect on Borrower or the REIT:
(a) Engage, or knowingly permit an ERISA Affiliate to engage, in any prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Internal Revenue Code which is not exempt under Section 407 or 408 of ERISA or Section 4975(d) of the Internal Revenue Code for which a class exemption is not available or a private exemption has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h)not been previously obtained from the DOL;
(iib) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of ERISA and the regulations and published interpretations thereunder with respect Permit 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has exist any accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code), whether or not waived;
(c) been incurred (without regard Fail, or permit an ERISA Affiliate to fail, to pay timely required contributions or annual installments due with respect to any waiver granted waived funding deficiency to any Plan if such failure could result in the imposition of a Lien or otherwise would have a Material Adverse Effect on Borrower or the REIT;
(d) Terminate, or permit an ERISA Affiliate to terminate, any Benefit Plan which would result in any liability of Borrower or an ERISA Affiliate under Title IV of ERISA or the REIT; or
(e) Fail, or permit any ERISA Affiliate to fail, to pay any required installment under section (m) of Section 412 of the Internal Revenue Code or any other payment required under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received Code on or requested with respect to any Pension Planbefore the due date for such installment or other payment, nor has if such failure could result in the imposition of a Lien or otherwise would have a Material Adverse Effect on Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;REIT.
Appears in 7 contracts
Samples: Term Loan Agreement (Chelsea Property Group Inc), Credit Agreement (Chelsea Property Group Inc), Credit Agreement (CPG Partners Lp)
ERISA. (i) 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 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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 expiredexpired 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 Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the CodeCode 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 PlanPlan except for a liability that could not reasonably be expected to have a Material Adverse Effect;
(iiiii) No Pension Plan As of the Borrower has been terminatedClosing Date, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iii) 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: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(iv) No Termination Event with respect to the Borrower or any ERISA Affiliate has occurred or is reasonably expected to occur; and
(v) 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.
Appears in 6 contracts
Samples: Loan Agreement (Medcath Corp), Loan Agreement (Medcath Corp), Loan Agreement (Medcath Corp)
ERISA. (iThe present value of all vested benefits under each “employee pension benefit plan”, as such term is defined in Section 3(2) Neither the Borrower nor any ERISA Affiliate maintains or contributes toof ERISA, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate a Multiemployer Plan, that is in material compliance with all applicable provisions subject to Title IV of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred sponsored or maintained by the Borrower or any ERISA Affiliate of the Borrower, or to which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan the Borrower or any Multiemployer Plan;
(iii) No Pension Plan ERISA Affiliate of the Borrower contributes or has been terminatedan obligation to contribute, and to or has any liability (each, a “Pension Plan”), does not exceed the knowledge value of the Borrower no assets of the Pension Plan allocable to such vested benefits (based on the value of any such assets as of the last annual valuation date for such Pension Plan) determined in accordance with the assumptions used for funding such Pension Plan pursuant to Sections 412 and 430 of the Code for the applicable plan year. No prohibited transactions (within the meaning of Section 406(a) or (b) of ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in or Section 412 4975 of the Code) for which an exemption is not available or has not previously been incurred (without regard obtained from the United States Department of Labor, failure to any waiver granted under meet the minimum funding standard set forth in Section 412 302(a) of ERISA and Section 412(a) of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested Code with respect to any Pension Plan, nor has withdrawal from a Pension Plan subject to Section 4063 of ERISA during a plan year in which the Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the CodeBorrower was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA), or a cessation of operations that is treated as such a withdrawal under Section 302 4062(e) of ERISA ERISA, or the terms of Reportable Events have occurred with respect to any Pension Plan prior that, in the aggregate, could subject the Borrower to the due dates any material Tax penalty or other liability. No notice of such contributions intent to terminate a Pension Plan has been filed under Section 412 of the Code or Section 302 4041 of ERISA, nor has there any Pension Plan been any event requiring any disclosure terminated under Section 4041(c)(3)(C) 4041 of ERISA, nor has the Pension Benefit Guaranty Corporation instituted proceedings to terminate, or 4063(a) appoint a trustee to administer a Pension Plan under Section 4042 of ERISA with respect and no event has occurred or condition exists that constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan;.
Appears in 6 contracts
Samples: Loan and Servicing Agreement (Ares Capital Corp), Omnibus Amendment (Ares Capital Corp), Loan and Servicing Agreement (Ares Capital Corp)
ERISA. (i) 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 5.1(h);
(iia) The Borrower and each ERISA Affiliate is have complied in all material respects with ERISA and, where applicable, the Code regarding each Plan.
(b) Each Plan and each Welfare Plan is, and has been, maintained in substantial compliance with all applicable provisions ERISA and, where applicable, the Code.
(c) No act, omission or transaction has occurred which could reasonably be expected to result in imposition on the Borrower or any ERISA Affiliate (whether directly or indirectly) of (i) either a civil penalty assessed pursuant to Section 502(c), (i), (l) or (m) of ERISA and the regulations and published interpretations thereunder with respect or a tax imposed pursuant to all Employee Benefit Plans except for any required amendments for which the remedial amendment period as defined in Section 401(b) Chapter 43 of Subtitle D of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified or (ii) breach of fiduciary duty liability damages under Section 401(a409 of ERISA.
(d) of the Code No Plan (other than a defined contribution plan) or any trust created under any such Plan has been determined by terminated within the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Codepreceding six calendar years. No liability has been incurred to the PBGC (other than for the payment of current premiums which are not past due) by the Borrower or any ERISA Affiliate which remains unsatisfied for has been or is expected by the Borrower or any taxes or penalties ERISA Affiliate to be incurred with respect to any Employee Benefit Plan. No ERISA Event with respect to any Plan or any (other than a Multiemployer Plan;) has occurred.
(iiie) No Pension Plan Full payment when due has been made of all amounts which the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of or any ERISA Affiliate has been terminatedis required under the terms of each Plan and each Welfare Plan or applicable law to have paid as contributions to such Plan or Welfare Plan, nor has any and no accumulated funding deficiency (as defined in Section 412 302 of the Code) been incurred (without regard to any waiver granted under ERISA and Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received whether or requested not waived, exists with respect to any Pension Plan.
(f) The actuarial present value of the benefit liabilities under each Plan which is subject to Title IV of ERISA does not, nor has as of the end of the Borrower's most recently ended fiscal year, exceed the current value of the assets (computed on a plan termination basis in accordance with Title IV of ERISA) of such Plan allocable to such benefit liabilities. The term "actuarial present value of the benefit liabilities" shall have the meaning specified in Section 4041 of ERISA.
(g) None of the Borrower or any ERISA Affiliate failed sponsors, maintains, or contributes to make an employee welfare benefit plan, as defined in Section 3(1) of ERISA, including, without limitation, any contributions such plan maintained to provide benefits to former employees of such entities, that may not be terminated by the Borrower or any ERISA Affiliate in its sole discretion at any time without any liability that could reasonably be expected to pay any amounts due and owing as required by Section 412 have a Material Adverse Affect.
(h) None of the CodeBorrower or any ERISA Affiliate sponsors, Section 302 maintains or contributes to, or has at any time in the preceding six calendar years, sponsored, maintained or contributed to, any Multiemployer Plan.
(i) None of the Borrower or any ERISA or the terms of any Pension Plan prior Affiliate is required to the due dates of such contributions provide security under Section 412 401(a)(29) of the Code or Section 302 due to a Plan amendment that results in an increase in current liabilities 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 the Plan;.
Appears in 6 contracts
Samples: Credit Agreement (Wca Waste Corp), Second Lien Credit Agreement (Wca Waste Corp), Credit Agreement (Wca Waste Corp)
ERISA. (ia) Neither the Borrower nor any ERISA Affiliate maintains or member of its Controlled Group contributes to, or has to any obligation under, any Employee Benefit Plans Plan other than those identified on set forth in Schedule 5.1(h);4.16.
(iib) The Borrower and each ERISA Affiliate Each Plan is in compliance in all material compliance respects with all the applicable provisions of ERISA ERISA, the Code and the any other applicable Federal or state law and rules and regulations and published interpretations thereunder with promulgated thereunder. With respect to each Plan (other than a Multiemployer Plan) all Employee Benefit Plans except for material reports required under ERISA or any required amendments for which the remedial amendment period as defined in Section 401(b) of the Code has not yet expired. Each Employee Benefit Plan that is intended other applicable law or regulation to be qualified under Section 401(a) filed with the relevant Governmental Authority, the failure of the Code has been determined by the Internal Revenue Service which to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) file could reasonably result in liability of the Code. 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;member of its Controlled Group in excess of $500,000 have been duly filed and all such reports are true and correct in all material respects as of the date given.
(iiic) No Pension Except as set forth in Schedule 4.16, no Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, terminated nor has any accumulated funding deficiency (as defined in Section 412 412(a) of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), ) nor has any funding waiver from the Internal Revenue Service IRS been received or requested with respect to any Pension Plan, nor has requested.
(d) Neither the Borrower or nor any ERISA Affiliate member of its Controlled Group has failed to make any contributions contribution or to pay any amounts amount due and or owing as required by Section 412 of the Code, Code or Section 302 of ERISA or the terms of any Pension such Plan prior to the due dates of such contributions date (including permissible extensions thereof) under Section 412 of the Code or and Section 302 of ERISA, nor .
(e) There has there been no ERISA Event or any event requiring any disclosure under Section 4041(c)(3)(C), 4068(f), 4063(a) or 4063(a4043(b) of ERISA with respect to any Pension Plan or trust of the Borrower or any member of its Controlled Group.
(f) Except as set forth in Schedule 4.16, the value of the assets of each Plan (other than a Multiemployer Plan;) equalled or exceeded the present value of the benefit liabilities, as defined in Title IV of ERISA, of each such Plan as of the most recent valuation date using Plan actuarial assumptions at such date.
(g) There are no pending claims, lawsuits or actions (other than routine claims for benefits in the ordinary course) asserted or instituted against, and neither the Borrower nor any member of its Controlled Group has knowledge of any threatened litigation or claims against, (i) the assets of any Plan or trust or against any fiduciary of a Plan with respect to the operation of such Plan which has any reasonable likelihood of having a Material Adverse Effect or (ii) the assets of any employee welfare benefit plan maintained by the Borrower or any member of its Controlled Group within the meaning of Section 3(1) of ERISA or against any fiduciary thereof with respect to the operation of any such Plan which has any reasonable likelihood of having a Material Adverse Effect.
(h) Neither the Borrower nor any member of its Controlled Group has engaged in any prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, in connection with any Plan.
(i) Neither the Borrower nor any member of its Controlled Group (i) has incurred or reasonably expects to incur (A) any liability under Title IV of ERISA (other than premiums due under Section 4007 of ERISA to the PBGC) or (B) any withdrawal liability (and no event has occurred which with the giving of notice under Section 4219 of ERISA would result in such liability) under Section 4201 of ERISA as a result of a complete or partial withdrawal (within the meaning of Section 4203 or 4205 of ERISA) from a Multiemployer Plan or (C) any liability under Section 4062 of ERISA to the PBGC or to a trustee appointed under Section 4042 of ERISA, or (ii) has withdrawn from any Multiemployer Plan.
(j) Neither the Borrower nor any member of its Controlled Group nor any organization to which the Borrower or any member of its Controlled Group is a successor or parent corporation within the meaning of Section 4069(b) of ERISA has engaged in a transaction within the meaning of Section 4069 of ERISA.
(k) Except as set forth in Schedule 4.16, neither the Borrower nor any member of its Controlled Group maintains or has established any welfare benefit plan within the meaning of Section 3(1) of ERISA which provides for (i) continuing benefits or coverage for any participant or any beneficiary of any participant after such participant's termination of employment except as may be required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA") and the regulations thereunder, and at the expense of the participant or the beneficiary of the participant, or (ii) retiree medical liabilities. The Borrower and each member of its Controlled Group which maintains a welfare benefit plan within the meaning of Section 3(1) of ERISA has complied with any applicable notice and continuation requirements of COBRA and the regulations thereunder, except where the failure to so comply could not result in the loss of a tax deduction or imposition of a tax or other penalty on the Borrower or any member of its Controlled Group.
Appears in 6 contracts
Samples: Credit Agreement (Tyson Foods Inc), Credit Agreement (Tyson Foods Inc), 364 Day Credit Agreement (Tyson Foods Inc)
ERISA. (ia) 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 5.1(h);There are no Multiemployer Plans.
(iib) The Borrower Each Plan and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is related trust intended to be qualified qualify under Code Section 401(a) of the Code 401 or 501 has been determined by the Internal Revenue Service 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. 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;
(iii) No Pension Plan of the Borrower has been terminated, qualified and to the best knowledge of the Borrower no Pension Plan nothing has occurred which would cause the loss of such qualification.
(c) None of the Borrower, any of its Subsidiaries or any ERISA Affiliate has been terminatedAffiliate, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the Borrower or any ERISA Affiliate failed to make any contributions contribution or to pay any amounts amount due and owing as required by Section 412 of the Code, Code or Section 302 of ERISA or the terms of any such plan, and all required contributions and benefits have been paid in accordance with the provisions of each such plan.
(d) There are no pending or, to the knowledge of the Borrower, threatened claims, actions or proceedings (other than claims for benefits in the normal course), relating to any Plan other than those that in the aggregate, if adversely determined, would have no Material Adverse Effect.
(e) No Pension Plan prior has any unfunded accrued benefit liabilities, as determined by using reasonable actuarial assumptions utilized by such plan's actuary for funding purposes. Within the last five years none of the Borrower, any of its Subsidiaries or any ERISA Affiliate has caused a Pension Plan with any such liabilities to be transferred outside of its "controlled group" (within the due dates meaning of Section 4001(a)(14) of ERISA).
(f) No Plan provides for continuing health, disability, accident or death benefits or coverage for any participant or his or her beneficiary after such contributions under participant's termination of employment (except as may be required by Section 412 4980B of the Code and at the sole expense of the participant or Section 302 the beneficiary) which would result in the aggregate under all Plans in a liability in an amount which would have a Material Adverse Effect.
(g) None of ERISA, nor has there been the assets of any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of the Loan Parties are subject to Title I of ERISA with respect to because they consist of "plan assets" within the meaning of DOL Regulation Section 2510.3-101 by reason of an equity investment in any Pension Plan;of the Loan Parties.
Appears in 5 contracts
Samples: Credit Agreement (Felcor Hotel Asset Co LLC), Revolving Credit Agreement (Felcor Suite Hotels Inc), Credit Agreement (Felcor Lodging Trust Inc)
ERISA. (ia) Neither Schedule 4.13 to the Borrower nor any ERISA Affiliate maintains Disclosure Letter is a complete and accurate list of all Pension Plans maintained or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred sponsored by the Borrower or any ERISA Affiliate or to which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 contributes as required by Section 412 of the CodeClosing Date;
(b) except as could not reasonably be expected to result in a Material Adverse Effect, Section 302 of the Borrower and its ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) Affiliates are in compliance with all applicable provisions and requirements of ERISA with respect to each Plan, and have performed all their obligations under each Plan;
(c) except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Event has occurred or is reasonably expected to occur;
(d) except as could not reasonably be expected to result in a Material Adverse Effect, the Borrower and each of its ERISA Affiliates have met all applicable requirements under the ERISA Funding Rules with respect to each Pension Plan, and no waiver of the minimum funding standards under the ERISA Funding Rules has been applied for or obtained;
(e) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is at least 60%, and neither the Borrower nor any of its ERISA Affiliates knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage to fall below 60% as of the most recent valuation date;
(f) no Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of the Borrower or any of its ERISA Affiliates except to the extent required under Section 4980B of the Code, and except to the extent such benefit could not reasonably be expected to result in a Material Adverse Effect;
(g) assuming the assets of the Lenders do not constitute “plan assets” within the meaning of the United States Department of Labor Regulations set forth in 29 C.F.R §2510.3-101 as modified by ERISA Section 3(42) (the “Plan Assets Regulation”) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder will not involve any transaction that is subject to the prohibitions of Section 406 of ERISA (and not otherwise exempt therefrom) or in connection with which taxes could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code;
(h) except as could not reasonably be expected to result in a Material Adverse Effect, all liabilities under each Plan are (i) funded to at least the minimum level required by law or, if higher, to the level required by the terms governing the Plans, (ii) insured with a reputable insurance company, or (iii) (A) provided for or recognized in the financial statements most recently delivered to the Administrative Agent and the Lenders pursuant hereto or (B) estimated in the formal notes to the financial statements most recently delivered to the Administrative Agent and the Lenders pursuant hereto; and
(i) (i) the Borrower is not and will not be a “plan” within the meaning of Section 4975(e) of the Code; (ii) the assets of the Borrower do not and will not constitute “plan assets” within the meaning of the Plan Assets Regulation; (iii) the Borrower is not and will not be a “governmental plan” within the meaning of Section 3(32) of ERISA; and (iv) transactions by or with the Borrower are not and will not be subject to state statutes applicable to the Borrower regulating investments of fiduciaries with respect to governmental plans.
Appears in 5 contracts
Samples: Credit Agreement (Fastly, Inc.), Credit Agreement (Fastly, Inc.), Senior Secured Credit Facilities Credit Agreement (Nerdwallet, Inc.)
ERISA. (ia) Neither the Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee All Benefit Plans other than those identified on Schedule 5.1(hare listed in Exhibit B, and copies of all documentation relating to such Benefit Plans have been delivered to or made available for review by Purchasers (including copies of written Benefit Plans, written descriptions of oral Benefit Plans, summary plan descriptions, trust agreements, the three most recent annual returns, employee communications, and IRS determination letters);.
(iib) The Borrower Each Benefit Plan has at all times been maintained and each ERISA Affiliate is administered in all material compliance respects in accordance with its terms and with the requirements of all applicable provisions of law, including ERISA and the regulations Code, 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. Each Employee each Benefit Plan that is intended to be qualified qualify under Section section 401(a) of the Code has at all times since its adoption been determined by the Internal Revenue Service to be so qualified, and each trust related to which forms a part of any such plan has at all times since its adoption been determined to be tax-exempt under Section section 501(a) of the Code. .
(c) No Benefit Plan has incurred any "accumulated funding deficiency" within the meaning of section 302 of ERISA or section 412 of the Code, and the "amount of unfunded benefit liabilities" within the meaning of section 4001(a)(18) of ERISA does not exceed zero with respect to any Benefit Plan subject to Title IV of ERISA.
(d) No "reportable event" (within the meaning of section 4043 of ERISA) has occurred with respect to any Benefit Plan or any Plan maintained by an ERISA Affiliate since the effective date of said section 4043 for which notice is not waived under the regulations issued pursuant to said Section 4043.
(e) No Benefit Plan is a multiemployer plan within the meaning of section 3(37) of ERISA.
(f) No direct, contingent or secondary liability has been incurred or is expected to be incurred by the Borrower or Company under Title IV of ERISA to any ERISA Affiliate which remains unsatisfied for any taxes or penalties party with respect to any Employee Benefit Plan, or with respect to any other Plan presently or heretofore maintained or contributed to by any ERISA Affiliate.
(g) Neither the Company nor any ERISA Affiliate has incurred any liability for any tax imposed under section 4971 through 4980B of the Code or civil liability under section 502(i) or (l) of ERISA.
(h) No benefit under any Benefit Plan, including, without limitation, any severance or parachute payment plan or agreement, will be established or become accelerated, vested or payable by reason of any transaction contemplated under this Agreement.
(i) No Benefit Plan provides health or death benefit coverage beyond the termination of an employee's employment, except as required by Part 6 of Subtitle B of Title I of ERISA or section 4980B of the Code or any Multiemployer Plan;State laws requiring continuation of benefits coverage following termination of employment.
(iiij) No Pension Plan suit, action or other litigation (excluding claims for benefits incurred in the ordinary course of plan activities and any other claim which could reasonably be expected to result in a material liability or expense to the Borrower Company) has been terminatedbrought or, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminatedCompany, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received threatened against or requested with respect to any Pension PlanBenefit Plan and there are no facts or circumstances known to the Company that could reasonably be expected to give rise to any such suit, nor action or other litigation.
(k) All contributions to Benefit Plans that were required to be made under such Benefit Plans have been made, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved in accordance with generally accepted accounting principles, all of which accruals under unfunded Benefit Plans are as disclosed in Exhibit B, and the Company has the Borrower or any ERISA Affiliate failed performed all material obligations required to make any contributions or to pay any amounts due be performed under all Benefit Plans.
(l) The execution, delivery and owing as required by Section 412 performance of the CodeStock Purchase Agreements, Section 302 the Series 1 Waiver, the Stockholders' Agreement, the Stockholders' Agreement Amendment, the Registration Rights Agreement and the Registration Rights Amendment and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offer, issue and sale by the Company, and the purchase by the Purchaser of the Shares and the Conversion Shares) will not involve any "prohibited transaction" within the meaning of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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 Benefit Plan;.
Appears in 5 contracts
Samples: Stock Purchase Agreement (Impax Laboratories Inc), Stock Purchase Agreement (Fleming Robert Inc / Da), Stock Purchase Agreement (Fleming Robert Inc / Da)
ERISA. (i) Neither the Borrower nor any ERISA Affiliate maintains or contributes toThe present value of all benefits vested under each “employee pension benefit plan” as such term is defined in Section 3(2) of ERISA, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate a Multiemployer Plan, that is in material compliance with all applicable provisions subject to Title IV of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred sponsored or maintained 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;
(iii) No Pension Plan of the Borrower has been terminated, and or to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has which the Borrower or any ERISA Affiliate failed of the Borrower contributes or has an obligation to make contribute, or has any contributions or liability (each, a “Pension Plan”), does not exceed the value of the assets of the Pension Plan allocable to pay any amounts due such vested benefits (based on the value of such assets as of the last annual valuation date) determined in accordance with the assumptions used for funding such Pension Plan pursuant to Sections 412 and owing as required by Section 412 430 of the Code. No prohibited transactions, failure to meet the minimum funding standard set forth in Section 302 302(a) of ERISA or and Section 412(a) of the terms of Code (with respect to any Pension Plan prior other than a Multiemployer Plan), withdrawals or Reportable Events have occurred with respect to any Pension Plan that, in the due dates aggregate, could subject the Borrower to any material tax, penalty or other liability. No notice of such contributions intent to terminate a Pension Plan has been filed, nor has any Pension Plan been terminated under Section 412 of the Code or Section 302 4041(c) of ERISA, nor has there been any the Pension Benefit Guaranty Corporation instituted proceedings to terminate, or appoint a trustee to administer, a Pension Plan and no event requiring any disclosure has occurred or condition exists that might constitute grounds under Section 4041(c)(3)(C4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan.
(ii) or 4063(aThe Borrower (a) is not a Benefit Plan Investor and (b) is not a “governmental plan” within the meaning of Section 3(32) of ERISA (“Governmental Plan”), and neither the Borrower nor any transactions by or with the Borrower are subject to state statutes or regulations regulating investments of and fiduciary obligations with respect to any Pension Plan;Governmental Plans or to state statutes or regulations that impose prohibitions similar to those contained in Section 406 of ERISA or Section 4975 of the Code (“Similar Law”).
Appears in 4 contracts
Samples: Loan and Servicing Agreement (Oaktree Strategic Credit Fund), Loan and Servicing Agreement (Oaktree Strategic Credit Fund), Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
ERISA. (i) Neither 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 5.1(h7.1(i);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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 described in Section 401(b) of the Code has not yet expiredexpired 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 Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the CodeCode 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 PlanPlan except for a liability that could not reasonably be expected to have a Material Adverse Effect;
(iii) No Pension Plan As of the Borrower has been terminatedClosing Date, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) 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: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) 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.
Appears in 4 contracts
Samples: Credit Agreement (Geo Group Inc), Credit Agreement (Geo Group Inc), Credit Agreement (Wackenhut Corrections Corp)
ERISA. (i) Neither the Borrower nor No Loan Party or any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h7.1(m);.
(ii) The Borrower Each Loan Party and each ERISA Affiliate is in material compliance with all applicable provisions of ERISA ERISA, the Internal Revenue 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 Internal Revenue Code has not yet expiredexpired and except where a failure to so comply could not, individually or in the aggregate, 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 Internal Revenue Service IRS to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the CodeInternal Revenue 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 any Loan Party or any ERISA Affiliate which remains unsatisfied for any taxes or penalties assessed with respect to any Employee Benefit Plan or any Multiemployer Plan;Plan except for a liability that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(iii) No Pension Plan As of the Borrower has been terminatedAgreement Date, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated Pension Plan become subject to funding deficiency (as defined in based upon benefit restrictions under Section 412 436 of the Internal Revenue Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service IRS been received or requested with respect to any Pension Plan, nor has the Borrower any Loan Party or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section Sections 412 or 430 of the Internal Revenue Code, Section 302 of ERISA or the terms of any Pension Plan on or prior to the due dates of such contributions under Section Sections 412 or 430 of the Internal Revenue Code or Section 302 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.
(iv) Except where the failure of any of the following representations to be correct could not, individually or in the aggregate, reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no Loan Party nor any ERISA Affiliate has: (i) 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, (ii) failed to make a required contribution or payment to a Multiemployer Plan, or (iii) failed to make a required installment or other required payment under Sections 412 or 430 of the Internal Revenue Code.
(v) No Termination Event has occurred or is reasonably expected to occur;
(vi) Except where the failure of any of the following representations to be correct could not, individually or in the aggregate, reasonably be expected, individually or in the aggregate, 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 any Loan Party’s knowledge, threatened concerning or involving (i) any employee welfare benefit plan (as defined in Section 3(1) of ERISA) currently maintained or contributed to by any Loan Party or any ERISA Affiliate, (ii) any Pension Plan or (iii) any Multiemployer Plan.
(vii) With respect to any Employee Benefit Plan that is a retiree welfare benefit arrangement, all amounts have been accrued on the applicable Loan Party’s or ERISA Affiliate’s financial statements in accordance with FASB ASC 715. The “benefit obligation” of all Pension Plans does not exceed the “fair market value of plan assets” for such Pension Plans by more than $10,000,000 all as determined by and with such terms defined in accordance with FASB ASC 715.
Appears in 4 contracts
Samples: Fifth Amended and Restated Credit Agreement (LGI Homes, Inc.), Credit Agreement (LGI Homes, Inc.), Second Amendment to Fifth Amended and Restated Credit Agreement (LGI Homes, Inc.)
ERISA. (a) During the twelve-consecutive-month period prior to the date of the execution and delivery of this Agreement, (i) Neither the Borrower nor no steps have been taken to terminate any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
Pension Plan and (ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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 no contribution failure has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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 Pension Plan sufficient to give rise to a Lien under Section 302(f) of ERISA. No condition exists or event or transaction has occurred with respect to any Pension Plan which could result in the incurrence by the Company of any material liability, fine or penalty, other than the obligations of the Company to fund the benefits provided under the Pension Plan.
(b) All contributions (if any) have been made to any Multiemployer Plan that are required to be made by the Company or any other member of the Controlled Group under the terms of the plan or of any collective bargaining agreement or by applicable law; neither the Company nor any member of the Controlled Group has withdrawn or partially withdrawn from any Multiemployer Plan;
(iii) No , incurred any withdrawal liability with respect to any such plan or received notice of any claim or demand for withdrawal liability or partial withdrawal liability from any such plan, and no condition has occurred which, if continued, might result in a withdrawal or partial withdrawal from any such plan; and neither the Company nor any member of the Controlled Group has received any notice that any Multiemployer Pension Plan is in reorganization, that increased contributions may be required to avoid a reduction in plan benefits or the imposition of the Borrower any excise tax, that any such plan is or has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in funded at a rate less than that required under Section 412 of the CodeIRC, that any such plan is or may be terminated, or that any such plan is or may become insolvent.
(c) been incurred The Pension Plans and the trusts maintained pursuant thereto are exempt from federal income taxation under Section 501 of the IRC, and nothing has occurred with respect to the operation of the Pension Plans which could cause the loss of such qualification or exemption or the imposition of any liability, penalty, or tax under ERISA or the IRC.
(d) All contributions required by law or pursuant to the terms of the Plans (without regard to any waiver waivers granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect IRC) to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof (including any valid extension) and no accumulated funding deficiencies exist in any of the Pension Plan, nor has the Borrower or any ERISA Affiliate failed Plans subject to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, IRC.
(e) There is no "amount of unfunded benefit liabilities" as defined in Section 302 4001 (a) (18) of ERISA or in any of the terms respective Pension Plans, which are subject to Title IV of any ERISA. Each of the respective Pension Plans are fully funded in accordance with the actuarial assumptions used by the PBGC to determine the level of funding required in the event of the termination of the Pension Plan prior and all benefit liabilities do not exceed the assets of such Pension Plans.
(f) There have been no "reportable events" as that term is defined in Section 404 of ERISA and the regulations thereunder with respect to the due dates Pension Plans subject to Title IV of such contributions under Section 412 ERISA which would require the giving of the Code notice, or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section Sections 4041(c)(3)(C), 4063(a) or 4063(a4068(f) of ERISA.
(g) There is no material violation of ERISA with respect to the filing of applicable reports, documents, and notice, regarding the Plans with the Secretary of Labor and the Secretary of the Treasury or the furnishing of such documents to the participants or beneficiaries of the Plans.
(h) To the knowledge of the Company, there are no pending actions, claims or lawsuits which have been asserted or instituted against the Plans, the assets of any Pension Plan;of the trusts under such Plans or the plan sponsor or the plan administrator, or against any fiduciary of the Plans with respect to the operation of such Plans (other than routine benefit claims), nor does the Company have knowledge of facts which could form the basis for any such claim or lawsuit.
(i) All amendments and actions required to bring the Plans into conformity in all material respects with all of the applicable provisions of ERISA and other applicable laws have been made or taken except to the extent that such amendments or actions are not required by law, regulation or order pronounced by the IRS, to be made or taken until a date after the applicable Closing Date.
(j) The Plans have been maintained, in all material respects, in accordance with their terms and with all provisions of ERISA (including rules and regulations thereunder) and other applicable Federal and state law, and the Company or "party in interest" or "disqualified person" with respect to the Plans has engaged in a "prohibited transaction" within the meaning of Section 4975 of the IRC or Section 406 of ERISA.
Appears in 4 contracts
Samples: Purchase Agreement (Stein Avy H), Series B Convertible Preferred Stock Purchase Agreement (CTN Media Group Inc), Purchase Agreement (Stein Avy H)
ERISA. (ia) Neither the Borrower nor any ERISA Affiliate maintains Schedule 4.13 sets forth a complete and accurate list of all Pension Plans maintained or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred sponsored by the Borrower or any ERISA Affiliate or to which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 contributes as required by Section 412 of the Code, Section 302 of Closing Date;
(b) the Borrower and its ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) Affiliates are in compliance in all material respects with all applicable provisions and requirements of ERISA with respect to each Plan, and have performed all their obligations under each Plan;
(c) no ERISA Event has occurred or is reasonably expected to occur;
(d) the Borrower and each of its ERISA Affiliates have met all applicable requirements under the ERISA Funding Rules with respect to each Pension Plan, and no waiver of the minimum funding standards under the ERISA Funding Rules has been applied for or obtained;
(e) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is at least 60%, and neither the Borrower nor any of its ERISA Affiliates knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage to fall below 60% as of the most recent valuation date;
(f) except to the extent required under Section 4980B of the Code, or as described on Schedule 4.13, no Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of the Borrower or any of its ERISA Affiliates;
(g) as of the most recent valuation date for any Pension Plan, the amount of outstanding benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities), does not exceed $5,000,000;
(h) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder will not involve any transaction that is subject to the prohibitions of Section 406 of ERISA or in connection with which taxes could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code;
(i) all liabilities under each Plan are (i) funded to at least the minimum level required by law or, if higher, to the level required by the terms governing the Plans, (ii) insured with a reputable insurance company, (iii) provided for or recognized in the financial statements most recently delivered to the Administrative Agent and the Lenders pursuant hereto or (iv) estimated in the formal notes to the financial statements most recently delivered to the Administrative Agent and the Lenders pursuant hereto;
(j) to the knowledge of the Loan Parties, there are no circumstances which may give rise to a liability in relation to any Plan which is not funded, insured, provided for, recognized or estimated in the manner described in clause (g); and
(i) the Borrower is not and will not be a “plan” within the meaning of Section 4975(e) of the Code; (ii) the assets of the Borrower do not and will not constitute “plan assets” within the meaning of the United States Department of Labor Regulations set forth in 29 C.F.R. §2510.3-101; (iii) the Borrower is not and will not be a “governmental plan” within the meaning of Section 3(32) of ERISA; and (iv) transactions by or with the Borrower are not and will not be subject to state statutes applicable to the Borrower regulating investments of fiduciaries with respect to governmental plans.
Appears in 4 contracts
Samples: Credit Agreement (Appian Corp), Credit Agreement (Appian Corp), Credit Agreement (Appian Corp)
ERISA. (ia) Neither the Borrower No Loan Party nor any ERISA Affiliate maintains other Person, including any fiduciary, has engaged in any prohibited transaction (as defined in Section 4975 of the Code or contributes toSection 406 of ERISA) which could subject a Loan Party or any Person to whom any Loan Party may have an obligation to indemnify to any tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA, or has any obligation under, any and each Employee Benefit Plans Plan (other than those identified on Schedule 5.1(h);
(iia Multiemployer Plan) The Borrower has been administered in accordance with its terms and each ERISA Affiliate is in material compliance with all applicable provisions of ERISA and the regulations and published interpretations thereunder with respect Legal Requirements, including any reporting requirements; except in each case where such tax, penalty or compliance failure could not reasonably be expected 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 expiredhave a Material Adverse Effect. Each Employee Benefit Plan (other than a Multiemployer Plan) that is intended to be qualified qualify under Section 401(a) or 401(k) of the Code is the subject of a favorable determination or opinion letter from the IRS as to its tax-qualified status and no event has been determined by occurred that could reasonably be expected to result in the Internal Revenue Service to be so qualifieddisqualification of such Employee Benefit Plan.
(b) Except as disclosed on Schedule 6.8, and each trust related to such plan has been determined to be exempt under Section 501(a) as of the Code. No date hereof, no Loan Party nor member of the Controlled Group maintains, contributes to or has any 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 a Pension Plan or any Multiemployer Plan;
(iii) No Pension Plan that is subject to Title IV of ERISA. There is no Lien outstanding or security interest given by any Loan Party or member of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of Controlled Group in connection with any ERISA Affiliate has been terminated, nor has any Plan. No accumulated funding deficiency (as defined in Section 412 of the Codewhether or not waived) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA, nor ERISA has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA occurred with respect to any Pension Plan;. No Loan Party has any liability for uninsured retiree medical or death benefits (contingent or otherwise) other than as required by Section 4980B of the Code. No part of the funds to be used by a Loan Party in satisfaction of their respective obligations under this Agreement and the other Loan Documents, constitute “plan assets” within the meaning of Department of Labor regulation 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA, of any “employee benefit plan” within the meaning of Section 3(3) of ERISA that is subject to Title I of ERISA, any “plan” within the meaning of Section 4975 of the Code that is subject to Section 4975 of the Code or any entity the underlying assets of which are deemed to include plan assets.
Appears in 4 contracts
Samples: Term Loan Agreement (Wheeler Real Estate Investment Trust, Inc.), Term Loan Agreement (Wheeler Real Estate Investment Trust, Inc.), Term Loan Agreement (Cedar Realty Trust, Inc.)
ERISA. (i) Neither 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 5.1(h6.1(i);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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 expiredexpired 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 Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the CodeCode 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 PlanPlan except for a liability that could not reasonably be expected to have a Material Adverse Effect;
(iii) No Pension Plan As of the Borrower has been terminatedClosing Date, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) 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: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) 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.
Appears in 3 contracts
Samples: Credit Agreement (Lmi Aerospace Inc), Credit Agreement (Lmi Aerospace Inc), Credit Agreement (Compx International Inc)
ERISA. (ia) Neither the Borrower nor any ERISA Affiliate maintains Schedule 4.13 is a complete and accurate list of all Plans maintained or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred sponsored by the Borrower or any ERISA Affiliate or to which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 contributes as required by Section 412 of the Code, Section 302 of Closing Date;
(b) the Borrower and its ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) Affiliates are in compliance in all material respects with all applicable provisions and requirements of ERISA with respect to each Plan, and have performed all their material obligations under each Plan;
(c) no ERISA Event has occurred or is reasonably expected to occur;
(d) the Borrower and each of its ERISA Affiliates have met all applicable requirements under the ERISA Funding Rules with respect to each Pension Plan, and no waiver of the minimum funding standards under the ERISA Funding Rules has been applied for or obtained;
(e) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is at least 60%, and neither the Borrower nor any of its ERISA Affiliates knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage to fall below 60% as of the most recent valuation date;
(f) except to the extent required under Section 4980B of the Code or similar state law, or as described on Schedule 4.13, no Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of the Borrower or any of its ERISA Affiliates;
(g) as of the most recent valuation date for any Pension Plan, the amount of outstanding benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities), does not exceed $100,000;
(h) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder will not involve any transaction that is subject to the prohibitions of Section 406 of ERISA or in connection with which taxes could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code;
(i) all liabilities under each Plan are (i) funded to at least the minimum level required by law or, if higher, to the level required by the terms governing the Plans, (ii) insured with a reputable insurance company, (iii) provided for or recognized in the financial statements most recently delivered to the Administrative Agent and the Lenders pursuant hereto or (iv) estimated in the formal notes to the financial statements most recently delivered to the Administrative Agent and the Lenders pursuant hereto;
(j) there are no circumstances which may give rise to a liability in relation to any Plan which is not funded, insured, provided for, recognized or estimated in the manner described in clause (g); and
(i) the Borrower is not and will not be a “plan” within the meaning of Section 4975(e) of the Code; (ii) the assets of the Borrower do not and will not constitute “plan assets” within the meaning of the United States Department of Labor Regulations set forth in 29 C.F.R. §2510.3-101; (iii) the Borrower is not and will not be a “governmental plan” within the meaning of Section 3(32) of ERISA; and (iv) transactions by or with the Borrower are not and will not be subject to state statutes applicable to the Borrower regulating investments of fiduciaries with respect to governmental plans.
Appears in 3 contracts
Samples: Credit Agreement (XOOM Corp), Credit Agreement (XOOM Corp), Credit Agreement (XOOM Corp)
ERISA. (ia) Neither Schedule 3.14 lists all Plans maintained or contributed to by the Borrower nor Borrower, any Domestic Subsidiary thereof or any ERISA Affiliate maintains Affiliate, and separately identifies the Title IV Plans, Multi-employer Plans, multiple employer plans subject to Section 4064 of ERISA, nonqualified or contributes tounfunded Pension Plans, Welfare Plans and Retiree Welfare Plans. Each Qualified Plan and all amendments thereto for which the remedial amendment period (within the meaning of section 401(b) of the IRC and applicable regulations) has expired are covered by a favorable determination letter or (in the case of a prototype plan) a favorable opinion letter issued by the IRS. Except as disclosed in Schedule 3.14, to the knowledge of the Borrower, the Qualified Plans continue to qualify under Section 401 of the IRC, the trusts created thereunder continue to be exempt from tax under the provisions of IRC Section 501(a), and nothing has any obligation underoccurred which would cause the loss of such qualification or tax-exempt status. Except as disclosed in Schedule 3.14, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and to the knowledge of the Borrower, each ERISA Affiliate Plan is in compliance in all material compliance respects with all the applicable provisions of ERISA and the regulations IRC, including the filing of all reports required under the IRC or ERISA which are true and published interpretations thereunder with respect to all Employee Benefit Plans except for any required amendments for which the remedial amendment period correct as defined in Section 401(b) of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualifieddate filed, and all required contributions and benefits have been paid in accordance with the provisions of each trust related to such plan has been determined to be exempt under Section 501(a) of Plan. Neither the Code. No liability has been incurred by the Borrower or Borrower, any Domestic Subsidiary thereof nor any ERISA Affiliate which remains unsatisfied for any taxes or penalties Affiliate, with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Qualified Plan, nor has the Borrower or any ERISA Affiliate failed to make any contributions contribution or to pay any amounts amount due and owing as required by IRC Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA. Except as set forth on Schedule 3.14, with respect to all Retiree Welfare Plans, the present value of future anticipated expenses pursuant to the latest actuarial projections of liabilities does not exceed $300,000; with respect to Pension Plans, other than Qualified Plans and the unfunded Pension Plans listed in Schedule 3.14, the present value of the liabilities for current participants thereunder using interest assumptions described in IRC Section 411(a)(ii) does not exceed $300,000. Neither the Borrower nor any Domestic Subsidiary thereof or ERISA Affiliate has there been engaged in a prohibited transaction, as defined in IRC Section 4975 or Section 406 of ERISA, in connection with any Plan which would subject the Borrower or any Domestic Subsidiary thereof (after giving effect to any exemption) to a material tax on prohibited transactions imposed by IRC Section 4975 or any other material liability.
(b) Except as set forth in Schedule 3.14: (i) no Title IV Plan has any Unfunded Pension Liability; (ii) no ERISA Event or event requiring any disclosure under described in Section 4041(c)(3)(C) or 4063(a4062(e) of ERISA with respect to any Title IV Plan has occurred or is reasonably expected to occur which in either case would be material; (iii) there are no pending, or to the knowledge of the Borrower, material threatened, claims, actions or lawsuits (other than claims for benefits in the normal course), asserted or instituted against (x) any Plan or its assets, (y) any fiduciary with respect to any Plan or (z) the Borrower, any Domestic Subsidiary thereof or any ERISA Affiliate with respect to any Plan; (iv) neither the Borrower or any Domestic Subsidiary thereof nor any ERISA Affiliate has incurred or reasonably expects to incur any Withdrawal Liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 of ERISA as a result of a complete or partial withdrawal from a Multi-employer Plan; (v) within the last five (5) years neither the Borrower or any Domestic Subsidiary thereof nor any ERISA Affiliate has engaged in a transaction which resulted in a Title IV Plan with Unfunded Pension Plan;Liabilities being transferred outside of the “controlled group” (within the meaning of Section 4001(a)(14) of ERISA) of any such entity; (vi) no Plan which is a Retiree Welfare Plan provides for continuing benefits or coverage for any participant or any beneficiary of a participant after the last day of the month during which such participant’s termination of employment (except as may be required by IRC Section 4980B and at the sole expense of the participant or the beneficiary of the participant); (vii) the Borrower, each Domestic Subsidiary thereof and each ERISA Affiliate have materially complied with the notice and continuation coverage requirements of IRC Section 4980B and the proposed or final regulations thereunder; and (viii) no liability under any Plan has been funded, nor has such obligation been satisfied with, the purchase of a contract from an insurance company that is not rated AAA by Standard & Poor’s Ratings Service and the equivalent by each other nationally recognized rating agency.
Appears in 3 contracts
Samples: Credit Agreement (Synnex Corp), Credit Agreement (Synnex Corp), Credit Agreement (Synnex Corp)
ERISA. (ia) Neither the Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee All Benefit Plans other than those identified on are listed in Schedule 5.1(h4.9(a);, and copies of all documentation relating to such Benefit Plans have been delivered to or made available for review by the Purchasers (including copies of written Benefit Plans, written descriptions of oral Benefit Plans, summary plan descriptions, trust agreements, the three most recent annual returns, employee communications, and IRS determination letters).
(iib) The Borrower Each Benefit Plan has at all times been maintained and each ERISA Affiliate is administered in all material compliance respects in accordance with its terms and with the requirements of all applicable provisions of law, including ERISA and the regulations Code, 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. Each Employee each Benefit Plan that is intended to be qualified qualify under Section 401(a) of the Code has at all times since its adoption been determined by the Internal Revenue Service to be so qualified, and each trust related to which forms a part of any such plan has at all times since its adoption been determined to be tax-exempt under Section 501(a) of the Code. .
(c) 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 has incurred any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any "accumulated funding deficiency (as defined in deficiency" within the meaning of Section 412 302 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received ERISA 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 Section 412 of the Code, and the "amount of unfunded benefit liabilities" within the meaning of Section 302 4001(a)(18) of ERISA does not exceed zero with respect to any Benefit Plan subject to Title IV of ERISA.
(d) No "reportable event" (within the meaning of Section 4043 of ERISA) has occurred with respect to any Benefit Plan or any Plan maintained by an ERISA Affiliate since the effective date of said Section 4043 for which notice is not waived under the regulations issued pursuant to said Section 4043.
(e) No Benefit Plan is a multiemployer plan within the meaning of Section 3(37) of ERISA.
(f) No direct, contingent or secondary liability has been incurred or is expected to be incurred by the Company under Title IV of ERISA to any party with respect to any Benefit Plan, or with respect to any other Plan presently or heretofore maintained or contributed to by any ERISA Affiliate.
(g) Neither the Company nor any ERISA Affiliate has incurred any liability for any tax imposed under Section 4971 through 4980B of the Code or civil liability under Section 502(i) or (l) of ERISA.
(h) No benefit under any Benefit Plan, including, without limitation, any severance or parachute payment plan or agreement, will be established or become accelerated, vested or payable by reason of any transaction contemplated under this Agreement.
(i) No Benefit Plan provides health or death benefit coverage beyond the termination of an employee's employment, except as required by Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or any State laws requiring continuation of benefits coverage following termination of employment.
(j) No suit, action or other litigation (excluding claims for benefits incurred in the ordinary course of plan activities and any other claim which could not reasonably be expected to result in a material liability or expense to the Company) has been brought or, to the knowledge of the Company, threatened against or with respect to any Benefit Plan and there are no facts or circumstances known to the Company that could reasonably be expected to give rise to any such suit, action or other litigation.
(k) All contributions to Benefit Plans that were required to be made under such Benefit Plans have been made, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved in accordance with generally accepted accounting principles, all of which accruals under unfunded Benefit Plans are as disclosed in Schedule 4.9(k), and the Company has performed all material obligations required to be performed under all Benefit Plans.
(l) The execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offer, issue and sale by the Company, and the purchase by any Purchaser of the Shares) will not involve any "prohibited transaction" within the meaning of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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 Benefit Plan;.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Displaytech Inc), Stock Purchase Agreement (Displaytech Inc), Stock Purchase Agreement (Displaytech Inc)
ERISA. (ia) Neither The present value of all benefits vested under all Pension Plans did not, as of the most recent valuation date of such Pension Plans, exceed the value of the assets of the Pension Plans allocable to such vested benefits by an amount which would represent a potential material liability of the Borrower nor any ERISA Affiliate maintains or contributes toaffect materially the ability of the Borrower to perform the Loan Documents.
(b) No Plan or trust created thereunder, or any trustee or administrator thereof, has engaged in a “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) which could subject such Plan or any obligation underother Plan, any Employee Benefit Plans other than those identified trust created thereunder, or any trustee or administrator thereof, or any party dealing with any Plan or any such trust to the tax or penalty on Schedule 5.1(h);prohibited transactions imposed by Section 502 of ERISA or Section 4975 of the Code.
(iic) The Borrower and each ERISA Affiliate is No Pension Plan or trust has been terminated, except in material compliance accordance with all applicable provisions of ERISA the Code, ERISA, and the regulations of the Internal Revenue Service and published interpretations thereunder with respect the PBGC as applicable to all Employee Benefit Plans except for any required amendments for solvent plans in which the remedial amendment period benefits of participants are fully protected. No “reportable event” as defined in Section 401(b) 4043 of the Code ERISA has occurred for which notice has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower waived or any ERISA Affiliate for which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;alternative notice procedures are permitted.
(iiid) No Pension Plan of the Borrower or trust created thereunder has been terminated, and to the knowledge of the Borrower no Pension Plan of incurred any ERISA Affiliate has been terminated, nor has any “accumulated funding deficiency deficiency” (as such term is defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA) whether or not waived, nor since the effective date of ERISA.
(e) The required allocations and contributions to Pension Plans will not violate Section 415 of the Code.
(f) The Borrower has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect no withdrawal liability to any Pension Plan;trust created pursuant to a multi-employer pension or benefit plan nor would it be subject to any such withdrawal liability in excess of Fifty Thousand Dollars ($50,000) if it withdrew from any such plan or if its participation therein were otherwise terminated.
Appears in 3 contracts
Samples: Loan Agreement (Elandia International Inc.), Loan Agreement (Elandia, Inc.), Loan Agreement (Elandia International Inc.)
ERISA. (i) 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 5.1(h);
(iia) The Borrower Parent and each ERISA Affiliate is are in compliance in all material compliance respects with all applicable provisions of 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 Internal Revenue Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Internal Revenue Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Internal Revenue Code. No liability has been incurred by the Borrower Parent or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;.
(iiib) No Material Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Internal Revenue Code) been incurred (without regard to any waiver granted under Section 412 of the Internal Revenue Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Material Pension Plan, nor has the Borrower Parent or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Internal Revenue Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Internal Revenue Code or Section 302 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;.
(c) Neither the Parent nor any ERISA Affiliate has: (i) engaged in a nonexempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue 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 Section 412 of the Internal Revenue Code.
(d) No Termination Event has occurred or is reasonably expected to occur.
(e) No proceeding, claim, lawsuit and/or investigation is existing or, to the best knowledge of the Parent, 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 Parent or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan in which there is a reasonable possibility of an adverse decision and which, if adversely determined, could reasonably be expected to have a Material Adverse Effect.
Appears in 3 contracts
Samples: Credit Agreement (Markel Corp), Credit Agreement (Markel Corp), Credit Agreement (Markel Holdings Inc)
ERISA. (a) Set forth on Schedule 4.18 is a list identifying each "employee benefit plan", as defined in Section 3(3) of ERISA, (i) Neither the Borrower nor which is subject to any ERISA Affiliate maintains or contributes toprovision of ERISA, (ii) which is maintained, administered, or contributed to by the Company or any affiliate of the Company, and (iii) which covers any employee or former employee of the Company or any affiliate of the Company or under which the Company or any affiliate of the Company has any obligation underliability. The Company has delivered or made available to Buyer accurate and complete copies of such plans (and, if applicable, the related trust agreements) and all amendments thereto and written interpretations thereof, together with (i) the three most recent annual reports (Form 5500 including, if applicable, Schedule B thereto) prepared in connection with any such plan and (ii) the most recent actuarial valuation report prepared in connection with any such plan. Such plans are referred to in this Section as the "Employee Benefit Plans". For purposes of this Section only, an "affiliate" of any person means any other person which, together with such person, would be treated as a single employer under Section 414 of the Code. The only Employee Plans other than those which individually or collectively would constitute an "employee pension benefit plan" as defined in Section 3(2) of ERISA are identified as such on Schedule 4.18.
(b) Except as otherwise identified on Schedule 5.1(h4.18, (i) no Employee Plan constitutes a "multiemployer plan", as defined in Section 3(37) of ERISA (for purposes of this Section, a "Multiemployer Plan");
, (ii) The Borrower and each no Employee Plan is maintained in connection with any trust described in Section 501(c)(9) of the Code, (iii) no Employee Plan is subject to Title IV of ERISA Affiliate is in material compliance with all applicable provisions or to the minimum funding standards of ERISA and the regulations Code, and published interpretations thereunder with respect (iv) during the past five years, neither the Company nor any of its affiliates have made or been required to all Employee Benefit Plans except for make contributions to any required amendments for which the remedial amendment period Multiemployer Plan. There are no accumulated funding deficiencies as defined in Section 401(b) 412 of the Code (whether or not waived) with respect to any Employee Plan. The fair market value of the assets held with respect to each Employee Plan which is an employee pension benefit plan, as defined in Section 3(2) of ERISA, exceeds the actuarially determined present value of all benefit liabilities accrued under such Employee Plan (whether or not vested) determined using reasonable actuarial assumptions. Neither the Company nor any affiliate of the Company has not yet expiredincurred any material liability under Title IV of ERISA arising in connection with the termination of, or complete or partial withdrawal from, any plan covered or previously covered by Title IV of ERISA. The Company and all of the affiliates of the Company have paid and discharged promptly when due all liabilities and obligations arising under ERISA or the Code of a character which if unpaid or unperformed might result in the imposition of a lien against any of the assets of the Company or any Subsidiary. Nothing done or omitted to be done and no transaction or holding of any asset under or in connection with any Employee Plan has or will make the Company or any Subsidiary or any director or officer of the Company or any Subsidiary subject to any liability under Title I of ERISA or liable for any Tax pursuant to Section 4975 of the Code that could have a Material Adverse Effect. There are no threatened or pending claims by or on behalf of the Employee Plans, or by any participant therein, alleging a breach or breaches of fiduciary duties or violations of Applicable Laws which could result in liability on the part of the Company, its officers or directors, or such Employee Plans, under ERISA or any other Applicable Law and there is no basis for any such claim.
(c) Each Employee Benefit Plan that which is intended to be qualified under Section 401(a) of the Code is so qualified and has been determined by so qualified since the Internal Revenue Service to be so qualifieddate of its adoption, and each trust related forming a part thereof is exempt from Tax pursuant to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by Set forth on Schedule 4.18 is a list of the Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties most recent IRS determination letters with respect to any such Plans, accurate and complete copies of which letters have been delivered or made available to Buyer. Each Employee Benefit Plan has been maintained in compliance with its terms and with the requirements prescribed by all Applicable Laws, including but not limited to ERISA and the Code, which are applicable to such Employee Plans.
(d) Set forth on Schedule 4.18 is a list of each employment, severance, or other similar contract, arrangement, or policy and each plan or arrangement (written or oral) providing for insurance coverage (including any self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits, retirement benefits, deferred compensation, profit-sharing, bonuses, stock options, stock appreciation rights, or other forms of incentive compensation or post-retirement insurance, compensation, or benefits which (i) is not an Employee Plan, (ii) is entered into, maintained, or contributed to, as the case may be, by the Company or any Multiemployer Plan;
affiliate of the Company, and (iii) No Pension Plan covers any employee or former employee of the Borrower Company or any affiliate of the Company or under which the Company or any affiliate of the Company has any liability. Such contracts, plans, and arrangements as are described in the preceding sentence are referred to for purposes of this Section as the "Benefit Arrangements". Each Benefit Arrangement has been terminatedmaintained in substantial compliance with its terms and with the requirements prescribed by Applicable Laws.
(e) Neither the Company nor any affiliate of the Company has performed any act or failed to perform any act, and there is no contract, agreement, plan, or arrangement covering any employee or former employee of the Company or any affiliate of the Company, that, individually or collectively, could give rise to the knowledge of the Borrower no Pension Plan payment of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in amount that would not be deductible pursuant to the terms of Section 412 of the Code162(a)(1) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 280G of the Code, or could give rise to any penalty or excise Tax pursuant to Section 302 of ERISA 4980B or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 4999 of the Code or Section 302 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;Code.
Appears in 3 contracts
Samples: Purchase Agreement (Alliance Resources PLC), Purchase Agreement (American Rivers Oil Co /De/), Purchase Agreement (Encap Equity 1996 Limited Partnership)
ERISA. (ia) Neither None of the Borrower employee benefit plans maintained at any time by the Company or the trusts (if any) forming part of such plans has engaged in a prohibited transaction which could subject any such employee benefit plan or trust to a material tax or penalty on prohibited transactions imposed under Internal Revenue Code Section 4975 or ERISA.
(b) None of the employee benefit plans maintained at any time by the Company which are employee pension benefit plans and which are subject to Title IV of ERISA or the trusts that are part of such plans has been terminated so as to result in a material liability of the Company under ERISA or the Code, nor has any such employee benefit plan of the Company incurred any material liability to the Pension Benefit Guaranty Corporation, other than for required insurance premiums which have been paid or are not yet due and payable; neither the Company nor any ERISA Affiliate affiliate thereof has withdrawn, in either a complete or partial withdrawal, from any multi-employer Plan resulting in any unpaid withdrawal liability; the Company has made or provided for all contributions to all such employee pension benefit plans which it maintains and which are required by law or contributes such plans as of the end of the most recent fiscal year under each such plan; the Company has not incurred any accumulated funding deficiency with respect to any such plan, subject to Section 412 of the Code, whether or not waived; nor has there been any reportable event, or other event or condition, which presents a material risk of termination of, or liability with respect to, or has any obligation under, any Employee such employee benefit plan by the Pension Benefit Plans other than those identified on Schedule 5.1(h);Guaranty Corporation.
(iic) The Borrower benefit liabilities under the employee pension benefit plans which are subject to Title IV of ERISA, maintained by the Company, do not exceed the current value of the assets of such employee benefit plans allocable to such benefits, determined under the actuarial methods and assumptions that would apply if such plans were terminated in accordance with ERISA and the Code.
(d) To the best of the Company's knowledge, each ERISA Affiliate employee benefit plan maintained by the Company has been administered in accordance with its terms in all material respects and is in compliance in all material compliance respects with all applicable provisions requirements of ERISA (if applicable) and the other applicable laws, 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 expiredrules. Each Employee Benefit Plan employee benefit plan maintained by the Company that is intended to be qualified "qualified" under Section 401(a) of the Code has been determined by received a favorable determination letter of the Internal Revenue Service to be so qualifiedService, which letter remains in effect, and each trust related to such plan nothing has been determined to be exempt under Section 501(a) of occurred since the Code. 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates date of such contributions under Section 412 determination that could adversely affect the qualification of the Code or Section 302 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;such plan.
Appears in 3 contracts
Samples: Merger Agreement (Provant Inc), Merger Agreement (Provant Inc), Merger Agreement (Provant Inc)
ERISA. (ia) Neither the Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee All Benefit Plans other than those identified on are listed in Schedule 5.1(h4.9(a);, and copies of all documentation relating to such Benefit Plans have been delivered to or made available for review by the Purchasers (including copies of written Benefit Plans, written descriptions of oral Benefit Plans, summary plan descriptions, trust agreements, the three most recent annual returns, employee communications, and IRS determination letters).
(iib) The Borrower Each Benefit Plan has at all times been maintained and each ERISA Affiliate is administered in all material compliance respects in accordance with its terms and with the requirements of all applicable provisions of law, including ERISA and the regulations Code, 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. Each Employee each Benefit Plan that is intended to be qualified qualify under Section 401(a) of the Code has at all times since its adoption been determined by the Internal Revenue Service to be so qualified, and each trust related to which forms a part of any such plan has at all times since its adoption been determined to be tax-exempt under Section 501(a) of the Code. .
(c) 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 has incurred any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any "accumulated funding deficiency (as defined in deficiency" within the meaning of Section 412 302 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received ERISA 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 Section 412 of the Code, and the "amount of unfunded benefit liabilities" within the meaning of Section 302 4001(a)(18) of ERISA does not exceed zero with respect to any Benefit Plan subject to Title IV of ERISA.
(d) No "reportable event" (within the meaning of Section 4043 of ERISA) has occurred with respect to any Benefit Plan or any Plan maintained by an ERISA Affiliate since the effective date of said Section 4043 for which notice is not waived under the regulations issued pursuant to said Section 4043.
(e) No Benefit Plan is a multiemployer plan within the meaning of Section 3(37) of ERISA.
(f) No direct, contingent or secondary liability has been incurred or is expected to be incurred by the Company under Title IV of ERISA to any party with respect to any Benefit Plan, or with respect to any other Plan presently or heretofore maintained or contributed to by any ERISA Affiliate.
(g) Neither the Company nor any ERISA Affiliate has incurred any liability for any tax imposed under Section 4971 through 4980B of the Code or civil liability under Section 502(i) or (l) of ERISA.
(h) No benefit under any Benefit Plan, including, without limitation, any severance or parachute payment plan or agreement, will be established or become accelerated, vested or payable by reason of any transaction contemplated under this Agreement.
(i) No Benefit Plan provides health or death benefit coverage beyond the termination of an employee's employment, except as required by Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or any State laws requiring continuation of benefits coverage following termination of employment.
(j) No suit, action or other litigation (excluding claims for benefits incurred in the ordinary course of plan activities and any other claim which could not reasonably be expected to result in a material liability or expense to the Company) has been brought or, to the knowledge of the Company, threatened against or with respect to any Benefit Plan and there are no facts or circumstances known to the Company that could reasonably be expected to give rise to any such suit, action or other litigation.
(k) All contributions to Benefit Plans that were required to be made under such Benefit Plans have been made, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved in accordance with generally accepted accounting principles, all of which accruals under unfunded Benefit Plans are as disclosed in Schedule 4.9(k), and the Company has performed all material obligations required to be performed under all Benefit Plans.
(l) The execution, delivery and performance of this Agreement and the other Restructure Documents, and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offer, issue and sale by the Company, and the purchase by any Purchaser of the Note) will not involve any "prohibited transaction" within the meaning of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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 Benefit Plan;.
Appears in 3 contracts
Samples: Note Purchase Agreement, Note Purchase Agreement (Displaytech Inc), Note Purchase Agreement (Displaytech Inc)
ERISA. No “employee welfare benefit” or “employee pension benefit” plans (i) 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 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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(b3(1) and 3(2), respectively, of ERISA) established or maintained by any Company or its ERISA Affiliates (collectively, the “Plans”), or to which any Company or an ERISA Affiliate contributes, had an accumulated funding deficiency (as such term is defined in Section 302 of ERISA) as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof, and no liability to the Pension Benefit Guaranty Corporation has been, or is expected by such person to be, incurred with respect to any such Plan. As to each Plan which is a defined benefit plan within the meaning of Section 3(35) of ERISA, the Code has value of the assets thereof as of the last day of the most recent Plan fiscal year, as determined by such Plan’s independent actuaries, exceeds the present value, as determined by such actuaries, as of such date of the benefits under such Plan. None of the Plans is a multi-employer plan within the meaning of Section 3(37) of ERISA, and each Company and its ERISA Affiliates have not yet expiredterminated or withdrawn from or are aware of any withdrawal liability (as defined in Section 4201 of ERISA) assessed against any Company or its ERISA Affiliates with respect to, any defined benefit plan or multi-employer plan in which employees of any such person have participated. The Plans have been administered in compliance with their terms and with all filing, reporting, disclosure and other requirements of ERISA, in each case, in all material respects. Each Employee Benefit Plan that (together with its related funding instrument) which is intended to be qualified an employee pension benefit plan is, or upon establishment by any Company, will satisfy the qualification requirements under Section 401(a) 401 of the Internal Revenue Code has 1986 (the “Code”) and the regulations issued thereunder in all material respects, and each such Plan (and its related funding instrument) have been determined or, upon establishment by any Company, will have been the subject of a favorable determination letter issued by the Internal Revenue Service holding that such Plan and funding instrument are so qualified or a favorable opinion letter issued by the Internal Revenue Service if the Plan is operated pursuant to be so qualifieda prototype document. No Company or any of its ERISA Affiliates or any of their respective employees or directors, or any Plan fiduciary of any of the Plans, has engaged in any transaction, including the execution and each trust related to such plan has been determined to be exempt under delivery of this Agreement and the Loan Documents, in violation of Section 501(a406(a) or (b) of the Code. No liability has been incurred by the Borrower ERISA or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency “prohibited transaction” (as defined in Section 412 4975(c)(1) of the Code) been incurred (without regard to any waiver granted for which no exemption exists under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 408(b) of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 4975(d) of the Code or for which no administrative exemption has been granted under Section 302 408(a) of ERISA, nor has there been any event requiring any disclosure under and no “reportable event” (as defined in Section 4041(c)(3)(C) or 4063(a) 4043 of ERISA and the government regulations issued thereunder) has occurred in connection with respect any Plan. No matter is pending relating to any Pension Plan;Plan before any court or governmental agency.
Appears in 3 contracts
Samples: Senior Credit Agreement (Streamline Health Solutions Inc.), Senior Credit Agreement (Streamline Health Solutions Inc.), Subordinated Credit Agreement (Streamline Health Solutions Inc.)
ERISA. (ia) Neither the Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee All Benefit Plans other than those identified on are listed in Schedule 5.1(h4.9(a);, and copies of all documentation relating to such Benefit Plans have been delivered to or made available for review by the Purchasers (including copies of written Benefit Plans, written descriptions of oral Benefit Plans, summary plan descriptions, trust agreements, the three most recent annual returns, employee communications, and IRS determination letters).
(iib) The Borrower Each Benefit Plan has at all times been maintained and each ERISA Affiliate is administered in all material compliance respects in accordance with its terms and with the requirements of all applicable provisions of law, including ERISA and the regulations Code, 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. Each Employee each Benefit Plan that is intended to be qualified qualify under Section 401(a) of the Code has at all times since its adoption been determined by the Internal Revenue Service to be so qualified, and each trust related to which forms a part of any such plan has at all times since its adoption been determined to be tax-exempt under Section 501(a) of the Code. .
(c) 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 has incurred any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any "accumulated funding deficiency (as defined in deficiency" within the meaning of Section 412 302 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received ERISA 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 Section 412 of the Code, and the "amount of unfunded benefit liabilities" within the meaning of Section 302 4001(a)(18) of ERISA does not exceed zero with respect to any Benefit Plan subject to Title IV of ERISA.
(d) No "reportable event" (within the meaning of Section 4043 of ERISA) has occurred with respect to any Benefit Plan or any Plan maintained by an ERISA Affiliate since the effective date of said Section 4043 for which notice is not waived under the regulations issued pursuant to said Section 4043.
(e) No Benefit Plan is a multiemployer plan within the meaning of Section 3(37) of ERISA.
(f) No direct, contingent or secondary liability has been incurred or is expected to be incurred by the Company under Title IV of ERISA to any party with respect to any Benefit Plan, or with respect to any other Plan presently or heretofore maintained or contributed to by any ERISA Affiliate.
(g) Neither the Company nor any ERISA Affiliate has incurred any liability for any tax imposed under Section 4971 through 4980B of the Code or civil liability under Section 502(i) or (l) of ERISA.
(h) No benefit under any Benefit Plan, including, without limitation, any severance or parachute payment plan or agreement, will be established or become accelerated, vested or payable by reason of any transaction contemplated under this Agreement.
(i) No Benefit Plan provides health or death benefit coverage beyond the termination of an employee's employment, except as required by Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or any State laws requiring continuation of benefits coverage following termination of employment.
(j) No suit, action or other litigation (excluding claims for benefits incurred in the ordinary course of plan activities and any other claim which could not reasonably be expected to result in a material liability or expense to the Company) has been brought or, to the knowledge of the Company, threatened against or with respect to any Benefit Plan and there are no facts or circumstances known to the Company that could reasonably be expected to give rise to any such suit, action or other litigation.
(k) All contributions to Benefit Plans that were required to be made under such Benefit Plans have been made, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved in accordance with generally accepted accounting principles, all of which accruals under unfunded Benefit Plans are as disclosed in Schedule 4.9(k), and the Company has performed all material obligations required to be performed under all Benefit Plans.
(l) The execution, delivery and performance of this Agreement and the Series E Shareholders' Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offer, issue and sale by the Company, and the purchase by any Purchaser of the Shares) will not involve any "prohibited transaction" within the meaning of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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 Benefit Plan;.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Displaytech Inc), Stock Purchase Agreement (Displaytech Inc), Stock Purchase Agreement (Displaytech Inc)
ERISA. Borrower shall not: (ia) Neither engage in or permit any transaction which could result in a “prohibited transaction” (as such term is defined in Section 406 of ERISA) or in the imposition of an excise tax pursuant to Section 4975 of the Code with respect to any Benefit Plan; (b) engage in or permit any transaction or other event which could result in a “reportable event” (as such term is defined in Section 4043 of ERISA) for any Borrower Pension Plan; (c) fail to make full payment when due of all amounts which, under the provisions of any Benefit Plan, Borrower is required to pay as contributions thereto; (d) the determination that any Borrower Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Internal Revenue Code or Sections 303, 304 and 305 of ERISA; (e) fail to make any payments to any Multiemployer Plan that Borrower may be required to make under any agreement relating to such Multiemployer Plan or any law pertaining thereto; (f) terminate any Borrower Pension Plan in a manner which could result in the imposition of a lien on any property of Borrower pursuant to Section 4068 of ERISA. Borrower shall not terminate any Borrower Pension Plan so as to result in any liability to the PBGC; (g) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower nor or any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(iih) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred a failure by the Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with to meet all applicable requirements under the Pension Funding Rules in respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the a Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has whether or not waived, or the failure by the Borrower or any ERISA Affiliate failed to make any contributions or required contribution to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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 a Multiemployer Plan;.
Appears in 2 contracts
Samples: Credit Agreement (CHS Inc), Credit Agreement (CHS Inc)
ERISA. (i) Neither 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 5.1(h7.1(i);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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 expiredexpired 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 Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the CodeCode 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 PlanPlan except for a liability that could not reasonably be expected to have a Material Adverse Effect;
(iii) No Pension Plan As of the Borrower has been terminatedClosing Date, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) 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: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) 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.
Appears in 2 contracts
Samples: Credit Agreement (Digital Generation Systems Inc), Credit Agreement (Digital Generation Systems Inc)
ERISA. (i) 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 5.1(h);
(ii) The Borrower will maintain, and cause each ERISA Affiliate is to maintain, each Plan in material compliance with all material applicable requirements of ERISA and of the Code and with all material applicable rulings and regulations issued under the provisions of 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 and will not yet expired. Each Employee Benefit Plan that is intended and not permit any of the ERISA Affiliates to (a) engage in any transaction in connection with which the Borrower or any of the ERISA Affiliates would be qualified under subject to either a civil penalty assessed pursuant to Section 401(a502(i) of ERISA or a tax imposed by Section 4975 of the Code has been determined by in an amount in excess of $1,000,000, (b) fail to make full payment when due of all amounts which, under the Internal Revenue Service to be so qualifiedprovisions of any Plan, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower or any ERISA Affiliate which remains unsatisfied for any taxes is required to pay as contributions thereto, or penalties with respect permit to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has exist any accumulated funding deficiency (as such term is defined in Section 412 302 of the Code) been incurred (without regard to any waiver granted under ERISA and Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received whether or requested not waived, with respect to any Pension Plan, nor has in an amount in excess of $1,000,000 for all Plans, or (c) fail to make any payments to any Multiemployer Plan that the Borrower or any of the ERISA Affiliate failed Affiliates may be required to make under any contributions agreement relating to such Multiemployer Plan or any law pertaining thereto in an amount in excess of $1,000,000. The Borrower will not permit, and will not allow any Subsidiary to pay permit, any amounts due and owing as required by event to occur or condition to exist which would permit any Plan to terminate under any circumstances which would cause the Lien provided for in Section 412 4068 of ERISA to attach to any assets of the CodeBorrower or any Subsidiary; and the Borrower will not permit, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 as of the Code or Section 302 most recent valuation date for any Plan subject to Title IV of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(athe present value (determined on the basis of reasonable assumptions employed by the independent actuary for such Plan and previously furnished in writing to the Banks) of ERISA with respect such Plan's projected benefit obligations to any Pension exceed the fair market value of such Plan;'s assets.
Appears in 2 contracts
Samples: Credit Agreement (Nash Finch Co), Credit Agreement (Nash Finch Co)
ERISA. Except as set forth on Schedule 9.9, (i) Neither each Loan Party and each Employee Plan and Pension Plan is in compliance with all Requirements of Law in all material respects, including ERISA, the Borrower nor any ERISA Affiliate maintains or contributes toInternal Revenue Code and the Patient Protection and Affordable Care Act of 2010, or has any obligation underas amended by the Health Care and Education Reconciliation Act of 2010, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each no ERISA Affiliate Event has occurred nor is in material compliance with all applicable provisions of ERISA and the regulations and published interpretations thereunder reasonably expected to occur with respect to all any Employee Benefit Plans except for Plan, Pension Plan or Multiemployer Plan, (iii) copies of each agreement entered into with the PBGC, the U.S. Department of Labor or the Internal Revenue Service with respect to any required amendments for which Employee Plan or Pension Plan have been delivered to the remedial amendment period as defined in Section 401(bAgents, and (iv) of the Code has not yet expired. Each each Employee Benefit Plan and Pension Plan that is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has been determined by the Internal Revenue Service to be so qualified, qualified under Section 401(a) of the Internal Revenue Code and each the trust related to such plan has been determined to be thereto is exempt from federal income tax under Section 501(a) of the Internal Revenue Code. No liability has been incurred by the Borrower Loan Party or any of its ERISA Affiliate Affiliates has incurred any material liability to the PBGC which remains unsatisfied outstanding other than the payment of premiums, and there are no premium payments which have become due and which are unpaid with respect to a Pension Plan. There are no pending or, to the best knowledge of any Loan Party, threatened material claims, actions, proceedings or lawsuits (other than claims for benefits in the ordinary course) asserted or instituted against (A) any taxes Employee Plan, Pension Plan, or penalties their respective assets, (B) any fiduciary with respect to any Employee Benefit Plan or Pension Plan, or (C) any Multiemployer Loan Party or any of its ERISA Affiliates with respect to any Employee Plan or Pension Plan;
(iii) No Pension Plan . Except as required by Section 4980B of the Borrower has been terminatedInternal Revenue Code, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency Loan Party maintains an employee welfare benefit plan (as defined in Section 412 3(1) of ERISA) that provides health benefits (through the Codepurchase of insurance or otherwise) been incurred (without regard to for any waiver granted under Section 412 retired or former employee of the Code), nor any Loan Party or has any funding waiver from the Internal Revenue Service been received or requested with respect obligation to provide any Pension Plan, nor has the Borrower or such benefits for any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 current employee after such employee’s termination of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;employment.
Appears in 2 contracts
Samples: Credit Agreement (AgileThought, Inc.), Credit Agreement (AgileThought, Inc.)
ERISA. None of the Obligors shall: (ia) Neither engage in or permit any transaction which could result in a Prohibited Transaction or in 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 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions imposition of ERISA and the regulations and published interpretations thereunder with respect an excise tax pursuant to all Employee Benefit Plans except for any required amendments for which the remedial amendment period as defined in Section 401(b) 4975 of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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 Obligor Benefit Plan Plan; (b) engage in or permit any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency transaction or other event which could result in a “reportable event” (as such term is defined in Section 412 4043 of ERISA) for any Plan subject to Title IV of ERISA; (c) fail to make full payment or permit any Subsidiary thereof to fail to make full payment when due of all amounts which, under the provisions of any Obligor Benefit Plan, the Obligor or any Subsidiary thereof is required to pay as contributions thereto; (d) permit to exist any “funding shortfall” (as such term is defined in Section 430 of the CodeCode and Section 303 of ERISA) been incurred for any plan year, in excess of five percent (without regard to any waiver granted under Section 412 5.0%) of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested net worth (determined in accordance with GAAP) of Guarantor and its Consolidated Subsidiaries 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior that is subject to the due dates of such contributions minimum funding standards under Section 412 430 of the Code or Section 302 of ERISA, nor has there been ; (e) fail to make or permit any event requiring Subsidiary thereof or any disclosure ERISA Affiliate to fail to make any payments to any Multiemployer Plan that the Obligor or any Subsidiary thereof or ERISA Affiliate may be required to make under Section 4041(c)(3)(Cany agreement relating to such Multiemployer Plan or any law pertaining thereto; or (f) terminate or 4063(a) permit any Subsidiary thereof or ERISA Affiliate to terminate any Plan subject to Title IV of ERISA with respect in a manner which could result in the imposition of a lien on any property of the Obligor pursuant to Section 4068 of ERISA or otherwise result in any Pension Plan;liability to the PBGC.
Appears in 2 contracts
Samples: Pre Export Credit Agreement, Pre Export Credit Agreement (CHS Inc)
ERISA. (i) Neither Except as specified in Schedule 6.1(z), as of the Closing Date, neither the Borrower nor any ERISA Affiliate maintains or contributes to, or has to any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);Plan.
(ii) The Borrower and each ERISA Affiliate have fulfilled all contribution obligations for each Plan (including obligations related to the minimum funding standards of ERISA and the Internal Revenue Code), and no application for a funding waiver or an extension of any amortization period pursuant to Sections 303 and 304 of ERISA or Section 412 of the Internal Revenue Code has been made with respect to any Plan.
(iii) No Termination Event has occurred nor has any other event occurred that is likely to result in material a Termination Event. Neither the Borrower or any ERISA Affiliate, nor any fiduciary of any Plan, is subject to any direct or indirect liability with respect to any Plan under any Requirement of Law or agreement.
(iv) Neither the Borrower nor any ERISA Affiliate is required to or reasonably expects to be required to provide security to any Plan under Section 307 of ERISA or Section 401(a)(29) of the Internal Revenue Code.
(v) The Borrower and each ERISA Affiliate are in compliance in all respects with all any applicable provisions of 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 Plans. There has been no prohibited transaction as defined in Section 401(b) 406 of ERISA or Section 4975 of the Internal Revenue Code has (a "Prohibited Transaction") with respect to any Plan or any Multiemployer Plan. The Borrower and each ERISA Affiliate have made when due any and all payments required to be made under any agreement relating to a Multiemployer Plan or any Requirement of Law pertaining thereto. With respect to each Plan and Multiemployer Plan, the Borrower and each ERISA Affiliate have not yet expired. incurred any liability to the PBGC and have not had asserted against them any penalty for failure to fulfill the minimum funding requirements of ERISA.
(vi) Each Employee Benefit Plan that which is intended to be qualified qualify under Section 401(a) of the Internal Revenue Code has been determined by received a favorable determination letter from the Internal Revenue Service to be so qualified, IRS and each trust related to no event has occurred which would cause the loss of such plan has been determined to be exempt under Section 501(aqualification.
(vii) of the Code. No liability has been incurred by Neither 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of nor any ERISA Affiliate has been terminated, nor has instituted or intends to institute proceedings to terminate any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;.
Appears in 2 contracts
Samples: Loan and Security Agreement (Chi Energy Inc), Loan and Security Agreement (Chi Energy Inc)
ERISA. Except for matters which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect:
(i) Neither As of the Closing Date, no Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, (a) any Pensions Plans or Multiemployer Plans or (B) any Employee Benefit Plans intended to comply with Section 401(a) of the Code other than those identified on Schedule 5.1(h5.1(i);
(ii) The each Borrower and each ERISA Affiliate is in compliance in all material compliance respects with all applicable provisions of ERISA and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans except for any required amendments for f or which the remedial amendment period as defined in Section 401(b401 (b) of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the any Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the any Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) No Borrower nor any ERISA Affiliate has: (A) 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, (B) failed to make a required contribution or payment to a Multiemployer Plan, or (C) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) No proceeding, claim, lawsuit and/or investigation is existing or, to the best knowledge of the Borrowers 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 any Borrower or (B) Pension Plan maintained by any Borrower.
(vii) No Borrower has engaged in a nonexempt prohibited transaction described in ERISA Section 406 or Code Section 4975.
Appears in 2 contracts
Samples: Credit Agreement (Rare Hospitality International Inc), Credit Agreement (Rare Hospitality International Inc)
ERISA. (i) Neither the Borrower nor any ERISA Affiliate maintains or contributes toThe Borrower, or has any obligation underall Commonly Controlled Entities, any Employee Benefit and all their Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower are and each ERISA Affiliate is have been in material substantial compliance with all applicable the provisions of, to the extent applicable, ERISA, the qualification requirements of ERISA IRC Section 401(a), and the regulations and published interpretations thereunder with respect thereunder. No notice of intent to all Employee Benefit Plans except for terminate any required amendments for which the remedial amendment period as defined in Section 401(b) of the Code such Plan has not yet expired. Each Employee Benefit Plan that is intended to be qualified been filed under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 4041 of ERISA, nor has there any such Plan been any event requiring any disclosure terminated under Section 4041(c)(3)(C) or 4063(a4041(e) of ERISA which resulted in substantial liability to Borrower or any of its Commonly Controlled Entities. The PBGC has not instituted proceedings to terminate, or appoint a trustee to administer, any such Plan and no event has occurred or condition exists which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer any such Plan. Neither Borrower nor any Commonly Controlled Entities would be liable for any amount pursuant to Sections 4063 or 4064 of ERISA if all such Plans terminated as of the most recent valuation dates of such Plans. Neither Borrower nor any Commonly Controlled Entities have: withdrawn from a Multiemployer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; or failed to make a payment to a Plan required under Section 302(f)(1) of ERISA such that security would have to be provided pursuant to Section 307 of ERISA. No lien upon the assets of Borrower or any of its Subsidiaries has arisen with respect to any Pension such Plan;. To the best knowledge of Borrower, no Prohibited Transaction or Reportable Event has occurred with respect to any such Plan. Borrower and each Commonly Controlled Entity has each made all contributions required to be made by them to any such Plan or Multiemployer Plan when due. There is no accumulated funding deficiency in any such Plan, whether or not waived.
Appears in 2 contracts
Samples: Credit Agreement (Cell Genesys Inc), Credit Agreement (Vertex Pharmaceuticals Inc / Ma)
ERISA. The Borrower shall not:
(i) Neither the Borrower nor any ERISA Affiliate maintains or contributes toengage, or permit any of its ERISA Affiliates to engage, in any prohibited transaction described in Sections 406 of ERISA or 4975 of the Internal Revenue Code for which a statutory or class exemption is not available or a private exemption has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h)not been previously obtained from the DOL;
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of ERISA and the regulations and published interpretations thereunder with respect permit 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has exist any accumulated funding deficiency (as defined in Section Sections 302 of ERISA and 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Internal Revenue Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Benefit Plan, nor has whether or not waived;
(iii) terminate, or permit any ERISA Affiliate to terminate, any Benefit Plan which would result in any liability of the Borrower or any ERISA Affiliate failed under Title IV of ERISA;
(iv) fail to make any contributions contribution or payment to any Multiemployer Plan which the Borrower or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereto;
(v) fail, or permit any ERISA Affiliate to fail, to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA installment or the terms of any Pension Plan prior to the due dates of such contributions other payment required under Section 412 of the Internal Revenue Code on or Section 302 of ERISAbefore the due date for such installment or other payment;
(vi) amend, nor has there been or permit any event requiring ERISA Affiliate to amend, a Benefit Plan resulting in an increase in current liability for the plan year such that the Borrower or any disclosure ERISA Affiliate is required to provide security to such Plan under Section 4041(c)(3)(C) or 4063(a401(a)(29) of ERISA the Internal Revenue Code;
(vii) permit any unfunded liabilities with respect to any Foreign Pension Plan if the existence of such liabilities or the absence of full funding would be contrary to applicable law for such Foreign Pension Plan or subject to a penalty under such law with respect to such Foreign Pension Plan;; or
(viii) fail, or permit any of its Subsidiaries or ERISA Affiliates to fail, to pay any required contributions or payments to a Foreign Pension Plan on or before the due date for such required installment or payment.
Appears in 2 contracts
Samples: Credit Agreement (Foamex Capital Corp), Credit Agreement (Foamex Capital Corp)
ERISA. (ia) The present value of all benefits vested under all Pension Plans did not, as of the most recent valuation date of such Pension Plans, exceed the value of the asset of the Pension Plans allocable to such vested benefits by an amount which would represent a potential material liability of the Borrower or any of the Borrower's Subsidiaries or affect materially the ability of the Borrower to perform the Loan Documents to which it is a party.
(b) No Plan or trust created thereunder, or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) which could subject such Plan or any other Plan, any trust created thereunder, or any trustee or administrator thereof, or any party dealing with any Plan or any such trust to the tax or penalty an prohibited transactions imposed by Section 502 of ERISA or Section 4975 of the Code.
(c) No Pension Plan or trust has been terminated, except in accordance with the Code, ERISA, and the regulations of the Internal Revenue Service and the PBGC as applicable to solvent plans in which benefits of participants are fully protected. No "reportable event" as defined in Section 4043 of ERISA has occurred for which notice has not been waived or for which alternative notice procedures are permitted.
(d) No Pension Plan or trust created thereunder has incurred any "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA) whether or not waived, since the effective date of ERISA.
(e) The required allocations and contributions to Pension Plans will not violate Section 415 of the Code.
(f) Neither the Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, withdrawal liability to any Employee Benefit Plans other than those identified on Schedule 5.1(h);
trust created pursuant to a multi-employer pension or benefit plan nor would be subject to any such withdrawal liability in excess of One Million Dollars (ii$1,000,000) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of ERISA and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans except for if it withdrew from any required amendments for which the remedial amendment period as defined in Section 401(b) of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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;
(iii) No Pension Plan of the Borrower has been if its participation therein were otherwise terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;.
Appears in 2 contracts
Samples: Short Term Revolving Credit Agreement (Costco Wholesale Corp /New), Extended Revolving Credit Agreement (Costco Wholesale Corp /New)
ERISA. Neither the Company nor any of the Subsidiaries has maintained or contributed to a defined benefit plan as defined in Section 3(35) of Employee Retirement Income Security Act of 1974, as amended (“ERISA”). No plan maintained or contributed to by the Company that is subject to ERISA (an “ERISA Plan”) (or any trust created thereunder) has engaged in a “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975 of the Code that could subject the Company or any of the Subsidiaries to any tax penalty on prohibited transactions and that has not adequately been corrected except as would not have a Material Adverse Effect. Each ERISA Plan is in compliance in all material respects with all reporting, disclosure and other requirements of the Code and ERISA as they relate to such ERISA Plan, except for any noncompliance which would not result in the imposition of a material tax or monetary penalty. With respect to each ERISA Plan that is intended to be “qualified” within the meaning of Section 401(a) of the Code, either (i) Neither a determination letter has been issued by the Borrower nor any Internal Revenue Service stating that such ERISA Affiliate maintains or contributes toPlan and the attendant trust are qualified thereunder, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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 under Section 401(b) of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to the establishment of such ERISA Plan has not ended and a determination letter application will be filed with respect to such ERISA Plan prior to the end of such remedial amendment period. Neither the Company nor any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower Subsidiaries has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (ever completely or partially withdrawn from a “multiemployer plan,” as defined in Section 412 of the Code3(37) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;.
Appears in 2 contracts
Samples: Underwriting Agreement (Kindred Biosciences, Inc.), Underwriting Agreement (Kindred Biosciences, Inc.)
ERISA. (i) Neither the Borrower nor any ERISA Affiliate maintains Material Subsidiary has ever established or contributes to, or has maintained any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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 funded employee pension benefit plan as defined in under Section 401(b3(2)(A) of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) Retirement Income Security Act of 1974, as amended and in effect on the Code has been determined by date hereof ("ERISA"), other than the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of plans described on the CodeDisclosure Schedule. No liability has employee benefit plan established or maintained, or to which contributions have been incurred made, 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;
(iii) No Pension Plan Subsidiary of the Borrower has been terminatedthat is subject to Part 3 of Title I-B of ERISA, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any had an accumulated funding deficiency (as such term is defined in Section 412 302 of ERISA) as of the Codelast day of the fiscal year of such plan ended most recently prior to the date hereof, or would have had an accumulated funding deficiency (as so defined) on such day if such year were the first year of the plan to which Part 3 of Title I-B of ERISA applied. No material liability to the Pension Benefit Guaranty Corporation has been incurred (without regard or is expected by the Borrower or any Material Subsidiary to be incurred by it or any waiver granted under Section 412 Subsidiary of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested Borrower with respect to any Pension Plansuch plan or otherwise. The execution, nor has delivery and performance of this Agreement and the other Loan Documents will not involve on the part of the Borrower or any ERISA Affiliate failed to make Material Subsidiary any contributions or to pay any amounts due and owing as required by Section 412 of prohibited transaction within the Code, Section 302 meaning of ERISA or Section 4975 of the terms Internal Revenue Code. Neither the Borrower nor any Material Subsidiary has ever maintained, contributed to or been obligated to contribute to any "multiemployer plan," as defined in Section 3(37) of ERISA. Neither the Borrower nor any Pension Plan prior to the due dates of such contributions Material Subsidiary has ever incurred any "withdrawal liability" calculated under Section 412 of the Code or Section 302 4211 of ERISA, nor and there has there been no event or circumstance that would cause the Borrower or any event requiring Material Subsidiary to incur any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan;such liability.
Appears in 2 contracts
Samples: Credit Agreement (MKS Instruments Inc), Credit Agreement (MKS Instruments Inc)
ERISA. (i) Neither As of the Closing Date, neither the US Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h6.1(i);
(ii) The US Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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 expiredexpired 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 Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the CodeCode 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 US Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer PlanPlan except for a liability that could not reasonably be expected to have a Material Adverse Effect;
(iii) No Pension Plan As of the Borrower has been terminatedClosing Date, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the US Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) 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 US Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) 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 Borrowers 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 US Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
Appears in 2 contracts
Samples: Credit Agreement (SCP Pool Corp), Credit Agreement (SCP Pool Corp)
ERISA. (i) 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 5.1(h6.1(h);
(ii) The the Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) Neither the Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) No proceeding, claim, 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.
Appears in 2 contracts
Samples: Credit Agreement (Golf Trust of America Inc), Credit Agreement (Golf Trust of America Inc)
ERISA. (i) Neither As of the Borrower Closing Date, no Loan Party nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h6.1(i);
(ii) The Borrower Each Loan Party and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code (A) has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code, or (B) is within the remedial amendment period as defined in Section 401(b) of the Code as to the initial adoption of such Employee Benefit Plan. No material liability has been incurred by the Borrower any Loan Party or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the Borrower any Loan Party or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) Neither any Loan Party nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) No proceeding, claim, lawsuit and/or investigation is existing or, to the best knowledge of the Loan Parties 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 any Loan Party or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
Appears in 2 contracts
Samples: Credit Agreement (Knology Holdings Inc /Ga), Credit Agreement (Knology Inc)
ERISA. Except as disclosed on Schedule 6.1(i) of the Disclosure ----- --------------- Letter:
(i) Neither 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 5.1(h)Plans;
(ii) The the Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No material 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) Neither the Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) No proceeding, claim, 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.
Appears in 2 contracts
Samples: Credit Agreement (American Business Information Inc /De), Credit Agreement (American Business Information Inc /De)
ERISA. (i) Neither Schedule 4.01(m) lists all Plans and separately identifies all Pension Plans, including all Title IV Plans, Multiemployer Plans, ESOPs and Welfare Plans, including all Retiree Welfare Plans. Each Qualified Plan has been determined by the Borrower nor any ERISA Affiliate maintains or contributes toIRS to qualify under Section 401(a) of the IRC, or has any obligation underthe trusts created thereunder have been determined to be exempt from tax under the provisions of Section 501 of the IRC, any Employee Benefit Plans other than those identified and, except as set forth on Schedule 5.1(h4.01(m);
, nothing has occurred that could reasonably be expected to cause the loss of such qualification or tax-exempt status. Except as otherwise provided in Schedule 4.01(m), (iix) The Borrower and each ERISA Affiliate Plan is in material compliance with all the applicable provisions of ERISA and the regulations and published interpretations thereunder with respect to IRC, including the timely filing of all Employee Benefit Plans except for any reports required amendments for which under the remedial amendment period as defined in Section 401(bIRC or ERISA, (y) none of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualifiedParent, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower Superior, any Originator or any of their respective ERISA Affiliate which remains unsatisfied for Affiliates has failed to make any taxes contribution or penalties with respect to pay any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (amount due as defined in required by either Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received IRC 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior Plan, subject to the due dates of such contributions under Section 412 sections, and (z) none of the Code Parent, Superior, any Originator or any of their respective ERISA Affiliates has engaged in a "prohibited transaction," as defined in Section 302 4975 of ERISAthe IRC, nor in connection with any Plan that could reasonably be expected to subject any Originator to a material tax on prohibited transactions imposed by Section 4975 of the IRC.
(ii) Except as set forth in Schedule 4.01(m): (A) no Title IV Plan has there been any Unfunded Pension Liability; (B) no ERISA Event or event requiring any disclosure under described in Section 4041(c)(3)(C) or 4063(a4062(e) of ERISA with respect to any Title IV Plan has occurred within the past three years or is reasonably expected to occur; (C) there are no pending or, to the knowledge of Superior or any Originator, threatened claims (other than claims for benefits in the normal course), sanctions, actions or lawsuits, asserted or instituted against any Plan or any Person as fiduciary or sponsor of any Plan; (D) none of the Parent, Superior, any Originator or any of their respective ERISA Affiliates has incurred or reasonably expects to incur any liability as a result of a complete or partial withdrawal from a Multiemployer Plan; (E) within the last five years no Title IV Plan with Unfunded Pension Liabilities has been transferred outside of the "controlled group" (within the meaning of Section 4001(a)(14) of ERISA) of the Parent, Superior, any Originator or their respective ERISA Affiliates; (F) Stock of the Parent, Superior and all Originators and their respective ERISA Affiliates makes up, in the aggregate, no more than 10% of the assets of any Plan subject to Title I of ERISA, measured on the basis of fair market value as of the last valuation date of any Plan;; and (G) no liability under any Title IV Plan has been satisfied with the purchase of a contract from an insurance company that is not rated AAA by S&P or an equivalent rating by another nationally recognized rating agency.
Appears in 2 contracts
Samples: Receivables Sale Agreement (Alpine Group Inc /De/), Receivables Sale Agreement (Superior Telecom Inc)
ERISA. (ia) Neither the No Borrower nor or any ERISA Affiliate maintains has sponsored or contributes contributed to, or has had any obligation (contingent or otherwise) under, any Employee Benefit Plans Plan or Multiemployer Plan other than those identified disclosed on Schedule 5.1(hEXHIBIT 6.19(A);.
(iib) The With respect to all Plans, each Borrower and each ERISA Affiliate is in material compliance with all the applicable provisions of ERISA and the regulations and published interpretations thereunder with respect to IRC in 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 expiredmaterial respects. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code IRC has been determined by the Internal Revenue Service to be so qualified, and each trust related to each such plan Plan has been determined to be exempt from federal income tax under Section 501(a) of the CodeIRC. No liability has been incurred by the any Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;.
(iiic) The present value of all benefit liabilities under each Pension Plan does not exceed the present value of the assets of such Plan. No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the CodeIRC) been incurred (without regard to any waiver granted under Section 412 of the CodeIRC), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the any Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the CodeIRC, Section 302 of ERISA or the terms of any Pension Plan prior to by the applicable due dates of such contributions under Section 412 of the Code or Section 302 of ERISAdates, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C), or 4062(e) or 4063(a) of ERISA with respect to any Pension Plan;.
(d) No Borrower or any ERISA Affiliate has: (i) engaged in a nonexempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the IRC; (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) engaged in any transaction which could subject it to liability under Section 4069 or 4212(c) of ERISA.
(e) No Termination Event has occurred and no Termination Event is reasonably expected to occur which could result in a liability to any Borrower or any ERISA Affiliate.
(f) No Borrower or any ERISA Affiliate has any contingent liability with respect to any post-retirement benefit under any Plan which is a welfare plan (as defined in Section 3(1) of ERISA), other than liability for health plan continuation coverage described in Part 6 of Title I of ERISA.
Appears in 2 contracts
Samples: Loan and Security Agreement (Lois/Usa Inc), Loan and Security Agreement (Lois/Usa Inc)
ERISA. (ia) Neither the Borrower nor any ERISA Affiliate maintains Schedule 4.13 is a complete and accurate list of all Plans maintained or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred sponsored by the Borrower or any ERISA Affiliate or to which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 contributes as required by Section 412 of the Code, Section 302 of Closing Date;
(b) the Borrower and its ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) Affiliates are in compliance in all material respects with all applicable provisions and requirements of ERISA with respect to each Plan, and have performed all their obligations under each Plan;
(c) no ERISA Event has occurred or is reasonably expected to occur;
(d) the Borrower and each of its ERISA Affiliates have met all applicable requirements under the ERISA Funding Rules with respect to each Pension Plan, and no waiver of the minimum funding standards under the ERISA Funding Rules has been applied for or obtained;
(e) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is at least 60%, and neither the Borrower nor any of its ERISA Affiliates knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage to fall below 60% as of the most recent valuation date;
(f) except to the extent required under Section 4980B of the Code, or as described on Schedule 4.13, no Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of the Borrower or any of its ERISA Affiliates;
(g) as of the most recent valuation date for any Pension Plan, the amount of outstanding benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities), does not exceed $500,000;
(h) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder will not involve any transaction that is subject to the prohibitions of Section 406 of ERISA or in connection with which taxes could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code;
(i) all liabilities under each Plan are (i) funded to at least the minimum level required by law or, if higher, to the level required by the terms governing the Plans, (ii) insured with a reputable insurance company, (iii) provided for or recognized in the financial statements most recently delivered to the Administrative Agent and the Lenders pursuant hereto or (iv) estimated in the formal notes to the financial statements most recently delivered to the Administrative Agent and the Lenders pursuant hereto;
(j) there are no circumstances which may give rise to a liability in relation to any Plan which is not funded, insured, provided for, recognized or estimated in the manner described in clause (g); and
(i) the Borrower is not and will not be a “plan” within the meaning of Section 4975(e) of the Code; (ii) the assets of the Borrower do not and will not constitute “plan assets” within the meaning of the United States Department of Labor Regulations set forth in 29 C.F.R. §2510.3-101; (iii) the Borrower is not and will not be a “governmental plan” within the meaning of Section 3(32) of ERISA; and (iv) transactions by or with the Borrower are not and will not be subject to state statutes applicable to the Borrower regulating investments of fiduciaries with respect to governmental plans.
Appears in 2 contracts
Samples: Credit Agreement (Organogenesis Holdings Inc.), Credit Agreement (Organogenesis Holdings Inc.)
ERISA. (i) Neither As of the Closing Date, neither the US Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h7.1(i);
(ii) The US Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of ERISA 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 expiredexpired 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 Internal Revenue Service IRS to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the CodeCode 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 US Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer PlanPlan except for a liability that could not reasonably be expected to have a Material Adverse Effect;
(iii) No Pension Plan As of the Borrower has been terminatedClosing Date, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated Pension Plan become subject to funding deficiency (as defined in based benefit restrictions under Section 412 436 of the Code) , nor has there been incurred (without regard to a determination that any waiver granted under Section 412 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)Code or Sections 303, 304 and 305 of ERISA, nor has any funding waiver from the Internal Revenue Service IRS been received or requested with respect to any Pension Plan, nor has the US Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section Sections 412 or 430 of the Code, Section Sections 302 or 303 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section Sections 412 or 430 of the Code or Section 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;
(iv) 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 US Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Sections 412 or 430 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) 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 Borrowers 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 US Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
Appears in 2 contracts
Samples: Credit Agreement (Pool Corp), Credit Agreement (Pool Corp)
ERISA. (i) Neither the Borrower nor any The Borrower, its Subsidiaries, their ERISA Affiliate maintains or contributes to, or has any obligation under, any Affiliates and their respective Employee Benefit Plans other than are in compliance in all material respects with those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties are applicable with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) . No Pension Plan of the Borrower has been terminated, Prohibited Transaction and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined "Reportable Event" described in Section 412 4043 of ERISA for which the Code) been incurred (without regard to any waiver granted under Section 412 of 30-day notice period is not waived by the Code)applicable regulations, nor has any funding waiver from the Internal Revenue Service been received or requested occurred 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension such Employee Benefit Plan prior to the due dates extent any such failure could reasonably be expected to result in a Material Adverse Effect. Except as set forth on Schedule 7.1(i) hereto, neither the Borrower, any of such contributions under Section 412 its Subsidiaries nor any of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of their ERISA Affiliates is an employer with respect to any Pension Multiemployer Plan;. The Borrower, its Subsidiaries and their ERISA Affiliates have met the minimum funding requirements under ERISA and the Code with respect to each of their respective Employee Benefit Plans, if any, and have not incurred (i) any current, outstanding liability to the PBGC or (ii) any past due liability to any Employee Benefit Plan. The execution, delivery and performance of this Agreement, the Notes, the other Loan Documents and the other documents executed or to be executed in connection herewith or therewith do not constitute a Prohibited Transaction. There is no material Unfunded Benefit Liability, determined in accordance with Section 4001(a)(18) of ERISA, with respect to any Plan of the Borrower, any of its Subsidiaries or their ERISA Affiliates.
Appears in 2 contracts
Samples: Credit Agreement (Veridian Corp), Credit Agreement (Veridian Corp)
ERISA. (i) Neither As of the Closing Date, neither any Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h6.1(i);
(ii) The each Borrower and each ERISA Affiliate Affiliates is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualifiedqualified as to form, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the any Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the any Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) Neither any Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code, in each case, if such transaction, liability, non-payment or failure would result in a material adverse effect upon any of the Borrowers;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) No proceeding, claim, lawsuit and/or investigation is existing or, to the best knowledge of the Borrowers 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 any Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
Appears in 2 contracts
Samples: Credit Agreement (Tessco Technologies Inc), Credit Agreement (Tessco Technologies Inc)
ERISA. (ia) Neither the Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified Except as set forth on Schedule 5.1(h);4.9, there are no Plans that are Multiemployer Plans.
(iib) The Borrower Each Plan and any related trust intended to qualify under Code Section 401 or 501 will be timely filed with the IRS for its determination that each ERISA Affiliate such Plan and related trust is in material compliance with all applicable provisions of 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(bqualified.
(c) None of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower Loan Parties or any of their respective Subsidiaries or ERISA Affiliate which remains unsatisfied for any taxes or penalties Affiliates, with respect to any Employee Benefit Domestic Pension Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Foreign Pension Plan, nor has the Borrower or any ERISA Affiliate failed to make any contributions contribution or to pay any amounts amount due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA or other applicable law, and all required contributions and benefits have been paid in accordance with the provisions of each such plan.
(d) There are no pending or, to the knowledge of any Loan Party, threatened claims, actions or proceedings (other than claims for benefits in the normal course), relating to any Plan or Foreign Pension Plan other than those that in the aggregate, if adversely determined, would have no Material Adverse Effect.
(e) No Domestic Pension Plan, individually or in the aggregate with all Domestic Pension Plans, has any unfunded accrued benefit liabilities, as determined by using reasonable actuarial assumptions utilized by such plan’s actuary for funding purposes, exceeding $3,000,000. Within the last five years no Loan Party or any of its Subsidiaries or ERISA Affiliates has caused a Domestic Pension Plan with any such liabilities to be transferred outside of its “controlled group” (within the meaning of Section 4001(a)(14) of ERISA).
(f) Except as disclosed on Schedule 4.9, no Plan or Foreign Pension Plan provides for continuing health, disability, accident or death benefits or coverage for any participant or his or her beneficiary after such participant’s termination of employment (except as may be required by Section 4980B of the Code and at the sole expense of the participant or the beneficiary) which would result in the aggregate under all Plans in a liability in an amount which would have a Material Adverse Effect.
(g) Each Plan is in compliance in all material respects with applicable provisions of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) the Code and other Requirements of ERISA with respect to any Pension Plan;Law, except for non-compliances that in the aggregate would not have a Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement (Euramax International PLC), Credit Agreement (Euramax International PLC)
ERISA. (i) Neither such Borrower nor any Related Company maintains or contributes to any Benefit Plan other than those listed on SCHEDULE 7.1(P). Except as set forth on SCHEDULE 7.1(P), each Benefit Plan is in substantial compliance with ERISA and the Code, including but not limited to those provisions thereof relating to reporting and disclosure, and neither the Borrower nor any ERISA Affiliate maintains Related Company has received any notice asserting that a Benefit Plan is not in compliance with ERISA. No material liability to the PBGC or contributes toto any Multiemployer Plan has been, or has is expected to be, incurred by such Borrower or any obligation underRelated Company. Except as set forth on SCHEDULE 7.1(p), any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified qualify under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, qualifies and each any related trust related to such plan has been determined to be is exempt from federal income tax under Section 501(a) of the Code, a favorable determination letter from the IRS has been issued or applied for with respect to each such Benefit Plan and related trust and nothing that has occurred since the date of such determination letter that would adversely affect such qualification or tax-exempt status. No Benefit Plan subject to the minimum funding standards of the Code has failed to meet such standards. Neither such Borrower nor any Related Company has transferred any pension plan liability in a transaction that could be subject to Sections 4069 or 4212(C) of ERISA. Except as set forth on SCHEDULE 7.1(P), neither such Borrower nor any Related Company has been incurred by the Borrower any liability, actual or any ERISA Affiliate which remains unsatisfied for any taxes or penalties contingent, with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminatedin accordance with its terms, and to there are no pending or threatened claims against a Benefit Plan other than claims for benefits. No non-exempt prohibited transaction within the knowledge meaning of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 4975 of the Code or Section 302 406 of ERISA95 104 ERISA has occurred with respect to a Benefit Plan. Except as set forth on SCHEDULE 7.1(P), nor has there been no employee or former employee of such Borrower or any event requiring Related Company is or may become entitled to any disclosure benefit under a Benefit Plan that is a "welfare plan" within the meaning of Section 4041(c)(3)(C) or 4063(a3(1) of ERISA following such employee's termination of employment other than continuation of group health coverage in accordance with respect to Section 4980B of the Code and Sections 601 through 609 of ERISA. Except as set forth on SCHEDULE 7.1(P), each such welfare plan that is a group health plan has been operated in compliance with the provisions of Section 4980B of the Code and Sections 601-609 of ERISA and any Pension Plan;applicable provisions of state law that are similar.
Appears in 2 contracts
Samples: Loan and Security Agreement (Winston Furniture Co of Alabama Inc), Loan and Security Agreement (Winsloew Furniture Inc)
ERISA. (ia) 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 5.1(h);
(ii) The Borrower Each Loan Party and each of its ERISA Affiliate Affiliates is in compliance in all material compliance respects with all the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder thereunder. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. No event described in Section 4062(e) of ERISA has occurred and is continuing with respect to any Pension Plan. The present value of all Employee Benefit Plans except accumulated benefit obligations under each Pension Plan (based on the assumptions used for any required amendments for which the remedial amendment period purposes of Statement of Financial Accounting Standards No. 87) did not, as defined in Section 401(b) of the Code has not yet expireddate of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Pension Plan by a material amount, and the present value of all accumulated benefit obligations of all underfunded Pension Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of all such underfunded Pension Plans by a material amount.
(b) Each Employee Benefit Pension Plan that is intended to be qualified qualify under Section 401(a) of the Code has been determined received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties IRS with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminatedthereto and, and to the knowledge of the Borrower no Pension Plan of any Borrower, nothing has occurred which would prevent, or cause the loss of, such qualification. Each Loan Party and ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in made all required contributions to each Pension Plan subject to Section 412 of the Code) been incurred (without regard , and no application for a funding waiver pursuant to any waiver granted under Section 412 of the Code), nor Code has any funding waiver from the Internal Revenue Service been received or requested made with respect to any Pension Plan.
(c) There are no pending or, nor has to the Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 knowledge of the CodeBorrowers, Section 302 of ERISA threatened (in writing) claims, actions, or the terms of lawsuits, or action by any Governmental Authority, with respect to any Pension Plan prior to the due dates of such contributions under Section 412 Plan. There has been no violation of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) fiduciary responsibility rules of ERISA with respect to any Pension Plan;.
(d) No Loan Party or ERISA Affiliate (i) has incurred, or reasonably expects to incur, any material liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA), (ii) has incurred, or reasonably expects to incur, any material liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 of ERISA with respect to a Multiemployer Plan, and (iii) has engaged in a transaction that could reasonably be expected to be subject to Section 4069 or Section 4212(c) of ERISA.
(e) No such Pension Plan or trust created thereunder, or party in interest (as defined in Section 3(14) of ERISA), or any fiduciary (as defined in Section 3(21) of ERISA), has engaged in a “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) which would subject such Pension Plan or any other plan of any Loan Party or any of its ERISA Affiliates, any trust created thereunder, or any such party in interest or fiduciary, or any party dealing with any such Pension Plan or any such trust, to any material penalty or tax on “prohibited transactions” imposed by Section 502 of ERISA or Section 4975 of the Code.
(f) With respect to any Foreign Plan, (i) all employer and employee contributions required by the law of the applicable foreign jurisdiction or by the terms of the Foreign Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance, or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable generally accepted accounting principles; and (iii) it has been registered if required by the law of the applicable foreign jurisdiction and has been maintained in good standing with the applicable regulatory authorities of such jurisdiction.
Appears in 2 contracts
Samples: Credit Agreement (Steven Madden, Ltd.), Credit Agreement (Steven Madden, Ltd.)
ERISA. (i) Neither 19.17.1 As of the Borrower Closing Date, no Borrower, nor any Group Company, nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h)6.1(I) hereto;
(ii) The Borrower 19.17.2 Each Borrower, each Group Company and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower any Borrower, any Group Company or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) 19.17.3 No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the Borrower any Borrower, any Subsidiary or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
19.17.4 No Borrower, Group Company or ERISA Affiliate has:
(a) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code;
(b) 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;
(c) failed to make a required contribution or payment to a Multiemployer Plan; or
(d) failed to make a required instalment or other required payment under Section 412 of the Code;
19.17.5 No Termination Event has occurred or is reasonably expected to occur; and
19.17.6 No proceeding, claim, lawsuit and/or investigation is existing or, to the best knowledge of each Borrower and each Group Company 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 any Borrower, any Group Company or any ERISA Affiliate;
(b) Pension Plan; or
(c) Multiemployer Plan.
Appears in 2 contracts
Samples: Facilities Agreement (Inveresk Research Group Inc), Facilities Agreement (Inveresk Research Group LTD)
ERISA. (ia) Neither the Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee All Benefit Plans other than those identified on Schedule 5.1(hare listed in Exhibit B, and copies of all documentation relating to such Benefit Plans have been delivered to or made available for review by Purchasers (including copies of written Benefit Plans, written descriptions of oral Benefit Plans, summary plan descriptions, trust agreements, the three most recent annual returns, employee communications, and IRS determination letters);.
(iib) The Borrower Each Benefit Plan has at all times been maintained and each ERISA Affiliate is administered in all material compliance respects in accordance with its terms and with the requirements of all applicable provisions of law, including ERISA and the regulations Code, 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. Each Employee each Benefit Plan that is intended to be qualified qualify under Section section 401(a) of the Code has at all times since its adoption been determined by the Internal Revenue Service to be so qualified, and each trust related to which forms a part of any such plan has at all times since its adoption been determined to be tax-exempt under Section section 501(a) of the Code. .
(c) No Benefit Plan has incurred any "accumulated funding deficiency" within the meaning of section 302 of ERISA or section 412 of the Code, and the "amount of unfunded benefit liabilities" within the meaning of section 4001(a)(18) of ERISA does not exceed zero with respect to any Benefit Plan subject to Title IV of ERISA.
(d) No "reportable event" (within the meaning of section 4043 of ERISA) has occurred with respect to any Benefit Plan or any Plan maintained by an ERISA Affiliate since the effective date of said section 4043 for which notice is not waived under the regulations issued pursuant to said Section 4043.
(e) No Benefit Plan is a multiemployer plan within the meaning of section 3(37) of ERISA.
(f) No direct, contingent or secondary liability has been incurred or is expected to be incurred by the Borrower or Company under Title IV of ERISA to any ERISA Affiliate which remains unsatisfied for any taxes or penalties party with respect to any Employee Benefit Plan, or with respect to any other Plan presently or heretofore maintained or contributed to by any ERISA Affiliate.
(g) Neither the Company nor any ERISA Affiliate has incurred any liability for any tax imposed under section 4971 through 4980B of the Code or civil liability under section 502(i) or (l) of ERISA.
(h) No benefit under any Benefit Plan, including, without limitation, any severance or parachute payment plan or agreement, will be established or become accelerated, vested or payable by reason of any transaction contemplated under this Agreement.
(i) No Benefit Plan provides health or death benefit coverage beyond the termination of an employee's employment, except as required by Part 6 of Subtitle B of Title I of ERISA or section 4980B of the Code or any Multiemployer Plan;State laws requiring continuation of benefits coverage following termination of employment.
(iiij) No Pension Plan suit, action or other litigation (excluding claims for benefits incurred in the ordinary course of plan activities and any other claim which could reasonably be expected to result in a material liability or expense to the Borrower Company) has been terminatedbrought or, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminatedCompany, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received threatened against or requested with respect to any Pension PlanBenefit Plan and there are no facts or circumstances known to the Company that could reasonably be expected to give rise to any such suit, nor action or other litigation.
(k) All contributions to Benefit Plans that were required to be made under such Benefit Plans have been made, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved in accordance with generally accepted accounting principles, all of which accruals under unfunded Benefit Plans are as disclosed in Exhibit B, and the Company has the Borrower or any ERISA Affiliate failed performed all material obligations required to make any contributions or to pay any amounts due be performed under all Benefit Plans.
(l) The execution, delivery and owing as required by Section 412 performance of the CodeStock and Warrant Purchase Agreements, Section 302 the Stockholders' Agreement and the Registration Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offer, issue and sale by the Company, and the purchase by the Purchaser of the Shares, the Conversion Shares, the Warrants and the Warrant Shares) will not involve any "prohibited transaction" within the meaning of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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 Benefit Plan;.
Appears in 2 contracts
Samples: Stock and Warrant Purchase Agreement (Fleming Robert Inc / Da), Stock and Warrant Purchase Agreement (Global Pharmaceutical Corp \De\)
ERISA. (ia) Neither the Borrower nor any ERISA Affiliate maintains Schedule 4.13 is a complete and accurate list of all Pension Plans maintained or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred sponsored by the Borrower or any ERISA Affiliate or to which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 contributes as required by Section 412 of the Code, Section 302 of Closing Date;
(b) the Borrower and its ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) Affiliates are in compliance in all material respects with all applicable provisions and requirements of ERISA with respect to each Plan, and have performed all their obligations under each Plan;
(c) no ERISA Event has occurred or is reasonably expected to occur;
(d) the Borrower and each of its ERISA Affiliates have met all applicable requirements under the ERISA Funding Rules with respect to each Pension Plan, and no waiver of the minimum funding standards under the ERISA Funding Rules has been applied for or obtained;
(e) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is at least 60%, and neither the Borrower nor any of its ERISA Affiliates knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage to fall below 60% as of the most recent valuation date;
(f) except to the extent required under Section 4980B of the Code, or as described on Schedule 4.13, no Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of the Borrower or any of its ERISA Affiliates;
(g) as of the most recent valuation date for any Pension Plan, the amount of outstanding benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities), does not exceed $50,000;
(h) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder will not involve any transaction that is subject to the prohibitions of Section 406 of ERISA or in connection with which taxes could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code;
(i) all liabilities under each Plan are (i) funded to at least the minimum level required by law or, if higher, to the level required by the terms governing the Plans, (ii) insured with a reputable insurance company, (iii) provided for or recognized in the financial statements most recently delivered to the Administrative Agent and the Lenders pursuant hereto or (iv) estimated in the formal notes to the financial statements most recently delivered to the Administrative Agent and the Lenders pursuant hereto;
(j) there are no circumstances which may give rise to a liability in relation to any Plan which is not funded, insured, provided for, recognized or estimated in the manner described in clause (g); and
(i) the Borrower is not and will not be a “plan” within the meaning of Section 4975(e) of the Code; (ii) the assets of the Borrower do not and will not constitute “plan assets” within the meaning of the United States Department of Labor Regulations set forth in 29 C.F.R. §2510.3-101; (iii) the Borrower is not and will not be a “governmental plan” within the meaning of Section 3(32) of ERISA; and (iv) transactions by or with the Borrower are not and will not be subject to state statutes applicable to the Borrower regulating investments of fiduciaries with respect to governmental plans.
Appears in 2 contracts
Samples: Credit Agreement (TransMedics Group, Inc.), Credit Agreement (TransMedics Group, Inc.)
ERISA. (i) Neither the any Borrower nor any ERISA Affiliate maintains or contributes to, or has to any obligation under, any Employee Benefit Plans Plan other than those identified a Benefit Plan listed on Schedule 5.1(h6.01(Q);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that which is maintained or contributed to by a Borrower which is intended to be a qualified plan has been determined by the IRS to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified), and each trust related to any such plan Plan has been so determined to be exempt from federal income tax under Section 501(a) of the Code. No liability has been incurred Internal Revenue Code prior to its amendment by the Tax Reform Act of 1986, and such Plan and trust are being operated in all material respects in compliance with and will be timely amended as necessary in accordance with the Tax Reform Act of 1986 and the Omnibus Budget Reconciliation Act of 1987 as interpreted by the regulations promulgated thereunder, provided that certain operational defects in the Xxxxx Karan New York 401(k) Retirement Plan have recently been discovered and have been the subject of an application to the IRS under its Voluntary Compliance Resolution ("VCR") program filed on or about June 18, 1996; and provided further that in connection with such filing under the VCR program, the audited financial report for such plan for 1994 was delayed pending such VCR filing and whereas the annual report for such plan for 1994 was timely filed, an amended annual report was filed on or about September 16, 1996 after the audited financial report containing a reference to the VCR filing was completed. Neither any Borrower nor any ERISA Affiliate, to the extent such ERISA Affiliate at any time has joint and several liability with any Borrower or any Subsidiary maintains or contributes to any employee welfare benefit plan within the meaning of Section 3(1) of ERISA, other than a Multiemployer Plan, which provides lifetime benefits to retirees other than as may be required by the Consolidated Omnibus Reconciliation Act of 1985, as amended and interpreted by regulations promulgated thereunder. Each Borrower is in compliance in all material respects with the responsibilities, obligations or duties imposed on it by ERISA Affiliate which remains unsatisfied for any taxes or penalties regulations promulgated thereunder with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of all Plans, except the Borrower has been terminatedoperational defects in, and to delay in the knowledge of 1994 audited financial report for, the Borrower no Pension Plan of any ERISA Affiliate has been terminatedXxxxx Karan New York 401(k) Retirement Plan, nor has any as described in this Section 6.01(q). No material accumulated funding deficiency (as defined in Section 302(a)(2) of ERISA and Section 412(a) of the Internal Revenue Code) exists in respect to any Benefit Plan. Except as set forth on Schedule 6.01(Q), neither any Borrower nor, to any Borrower's knowledge, any ERISA Affiliate nor any fiduciary of any Plan has engaged in a nonexempt "prohibited transaction" described in Section 406 of ERISA or Section 4975 of the Internal Revenue Code. Neither any Borrower nor any ERISA Affiliate nor any fiduciary of any Plan has taken any action which would constitute or result in a Termination Event with respect to any Plan such that the actions described in the preceding sentence or this sentence, or both, would result in a Material Adverse Effect. Neither any Borrower nor any ERISA Affiliate has incurred any material liability to the PBGC which remains outstanding other than the liability to pay the PBGC insurance premiums for the current year. Schedule B to the most recent annual report filed with the IRS with respect to each Benefit Plan and furnished to the Administrative Agent is complete and accurate in all material respects. Since the date of each such Schedule B, there has been no material adverse change in the funding status or financial condition of the Benefit Plan relating to such Schedule B which would result in a Material Adverse Effect. Neither any Borrower nor any ERISA Affiliate has failed to make any required installment under subsection (m) of Section 412 of the Code) been incurred (without regard to Internal Revenue Code and any waiver granted other payment required under Section 412 of the Code), Internal Revenue Code on or before the due date for such installment or other payment which would in the aggregate have a Material Adverse Effect. Neither any Borrower nor has any funding waiver from ERISA Affiliate is required to provide security to a Benefit Plan under Section 401(a)(29) of the Internal Revenue Service Code due to a Plan amendment that results in an increase in current liability for the plan year. The Borrowers and its ERISA Affiliates are current with respect to all obligations they may have relating to any Multiemployer Plan to which they are or have been received obligated to contribute to. Neither any Borrower nor any ERISA Affiliate has or requested is likely to incur any withdrawal liability 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Multiemployer Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;which would have a Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement (Donna Karan International Inc), Credit Agreement (Donna Karan International Inc)
ERISA. (i) Neither As of the Closing Date, no Borrower nor or any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h6.1(i);
(ii) The Each Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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 expiredexpired 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 Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the CodeCode 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 any Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer PlanPlan except for a liability that could not reasonably be expected to have a Material Adverse Effect;
(iii) No Pension Plan As of the Borrower has been terminatedClosing Date, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the any Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) 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 Borrower or any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) 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 any 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 any Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
Appears in 2 contracts
Samples: Credit Agreement (Belk Inc), Credit Agreement (Belk Inc)
ERISA. (i) Neither the Borrower Company nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h)3.11;
(ii) The Borrower the Company and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No material liability has been incurred by the Borrower Company or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower Company has been terminated, and to the knowledge of the Borrower Company no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the Borrower Company or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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, in each case which could reasonably be expected to result in a Material Adverse Effect;
(iv) Neither the Company nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or, to the knowledge of the Company, is reasonably expected to occur; and
(vi) No proceeding, claim, lawsuit and/or investigation (other than routine claims for benefits in the ordinary course) is existing or, to the best knowledge of the Company 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 Company or any ERISA Affiliate or (B) Pension Plan.
Appears in 2 contracts
Samples: Stock Subscription and Exchange Agreement (Insignia Financial Group Inc /De/), Stock Subscription Agreement (Insignia Financial Group Inc /De/)
ERISA. (i) Neither 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 5.1(h7.1(i);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of ERISA 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 expiredexpired 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 Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the CodeCode 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 PlanPlan except for a liability that could not reasonably be expected to have a Material Adverse Effect;
(iii) No Pension Plan As of the Borrower has been terminatedClosing Date, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated Pension Plan become subject to funding deficiency (as defined in based benefit restrictions under Section 412 436 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the Borrower any Credit Party or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section Sections 412 or 430 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section Sections 412 or 430 of the Code or Section 302 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;
(iv) 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: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 or 430 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) 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 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.
(vii) No Credit Party nor any Subsidiary thereof is a party to any contract, agreement or arrangement that could, solely as a result of the delivery of this Agreement or the consummation of transactions contemplated hereby, result in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
Appears in 1 contract
Samples: Credit Agreement (O Charleys Inc)
ERISA. (i) Neither the Borrower TEL nor any ERISA Affiliate maintains or contributes to, or has to any obligation under, any Employee Benefit Plans Plan other than those identified on Schedule 5.1(h);
(iidisclosed to Administrative Agent in writing. Other than TEL's Retirement Income Plan, neither TEL nor any ERISA Affiliate maintains or has ever maintained or been obligated to contribute to any Plan covered by Title IV of ERISA or subject to the funding requirements of Section 412 of the Code or Section 302 of ERISA, or a "multiemployer plan" as defined in Section 4001(a)(3) The Borrower and each of ERISA. Each Plan maintained by TEL or any ERISA Affiliate is in compliance in all material compliance respects with all the applicable provisions of 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 ERISA, the Code has not yet expired. Each Employee Benefit Plan that is intended and any other applicable Federal or state law, rule or regulation; all returns, reports and notices required to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower or filed with any ERISA Affiliate which remains unsatisfied for any taxes or penalties regulatory agency with respect to any Employee Benefit Plan have been filed timely; and neither TEL nor any ERISA Affiliate has failed to make any contribution or pay any Multiemployer amount due or owing as required by the terms of any Plan;
(iii) , except where the failure with respect to the foregoing would not have a Material Adverse Effect. No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of TEL or any ERISA Affiliate has been terminated, terminated under section 4041(c) of ERISA nor has any "accumulated funding deficiency deficiency" (as defined in Section 412 section 412(a) of the Code) been incurred (without regard to any waiver granted under Section section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor requested. There has the Borrower been no ERISA Event or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section section 4041(c)(3)(C), 4063(a) or 4063(a4043(b) of ERISA with respect to any Pension Plan;Plan or its related trust of TEL or any ERISA Affiliate since the effective date of ERISA. The value of the assets of each Plan (other than a multiemployer plan) of TEL and each ERISA Affiliate equaled or exceeded the present value of the benefit liabilities, as defined in Title IV of ERISA, of each such Plan as of the most recent valuation date using Plan actuarial assumptions at such date. Neither TEL nor any ERISA Affiliate has withdrawn from any multiemployer plan, nor has incurred or reasonably expects to incur (A) any liability under Title IV of ERISA (other than premiums due under section 4007 of ERISA to the PBGC, (B) any withdrawal liability (and no event has occurred which with the giving of notice under section 4219 of ERISA would result in such liability) under section 4201 of ERISA as a result of a complete or partial withdrawal (within the meaning of section 4023 or 4205 of ERISA) from a multiemployer plan, or (C) any liability under section 4062 of ERISA to the PBGC or to a trustee appointed under section 4042 of ERISA. There are no pending or, to the best of TEL's knowledge, threatened claims, lawsuits, investigations or actions (other than routine claims for benefits in the ordinary course) asserted or instituted against, and neither TEL nor any ERISA Affiliate has knowledge of any threatened litigation or claims against, the assets of any Plan or its related trust or against any fiduciary of a Plan with respect to the operation of such Plan that could reasonably be expected to result in liability of TEL or any ERISA Affiliate having a Material Adverse Effect. There are no investigations or audits of any Plan by any Governmental Authority currently pending and there have been no such investigations or audits that have been concluded that resulted in any liability of TEL or any ERISA Affiliate that has not been fully discharged. Each Plan that is intended to be "qualified" within the meaning of section 401(a) of the Code is, and has been during the period from its adoption to date, so qualified, both as to form and operation and all necessary governmental approvals, including a favorable determination as to the qualification under the Code of such Plan and each amendment thereto, have been or will be timely obtained. Neither TEL nor any ERISA Affiliate has engaged in any prohibited transactions, within the meaning of section 406 of ERISA or section 4975 of the Code, in connection with any Plan and there have been no breaches of any of the duties imposed on "fiduciaries" (within the meaning of section 3(21) of ERISA) with respect to any Plan which, in either case, could result in liability of TEL or any of its Subsidiaries having a Material Adverse Effect. Neither of TEL or any of its Subsidiaries nor any ERISA Affiliate maintains or contributes to any Plan that provides a post-employment health benefit, other than a benefit required under section 601 of ERISA, or maintains or contributes to a Plan that provides health benefits that is not fully funded except to the extent of unfunded health benefits which in any year could not reasonably be expected to have a Material Adverse Effect. Neither TEL, any of its Subsidiaries nor any ERISA Affiliate maintains, has established or has ever participated in a multiple employer welfare benefit arrangement within the meaning of section 3(40)(A) of ERISA.
Appears in 1 contract
Samples: Credit Agreement (Triton Energy LTD)
ERISA. (i) 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 5.1(h5.1(i);
(ii) The the Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) Neither the Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required install- ment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or, to the knowledge of the Borrower, is reasonably expected to occur; and
(vi) No proceeding, claim, lawsuit and/or investigation (other than routine claims for benefits in the ordinary course) 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.
Appears in 1 contract
ERISA. No Reportable Event (iwhether or not waived) Neither the Borrower nor any ERISA Affiliate maintains has occurred or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of ERISA and the regulations and published interpretations thereunder ----- continuing with respect to all any Pension Benefit Plan. No Prohibited Transaction has occurred with respect to any Employee Benefit Plans except Plan maintained for any required amendments for which the remedial amendment period as defined in Section 401(b) employees of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) Borrower and covered by Part 4 of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) Subtitle B of the CodeTitle I of ERISA. No liability has been incurred material employee benefit plan established or maintained 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;
(iii) No Pension Plan of the Borrower has been terminated, and or any Related Party (including any multiemployer plan to which the knowledge Borrower or any Affiliate of the Borrower no Pension Plan contributes) which is subject to Part 3 of any Subtitle B of Title I of ERISA Affiliate has been terminated, nor has any had a material accumulated funding deficiency (as such term is defined in Section 412 302 of ERISA) as of the Code) been incurred (without regard to any waiver granted under Section 412 last day of the Code)most recent fiscal year of such plan ended prior to the date hereof, nor or would have had an accumulated funding deficiency (as so defined) on such day if such year were the first year of such plan to which Part 3 of Subtitle B of Title I of ERISA applied, and no material liability to the Pension Benefit Guaranty Corporation, has been, or is expected by the Borrower or any funding waiver from Affiliate of the Internal Revenue Service been received or requested Borrower to be, incurred with respect to any Pension Plan, nor has such plan by the Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA Borrower. The Borrower is not required to contribute to or is contributing to a "Multiemployer Pension Plan" (as such term is defined in the terms of any Multiemployer Pension Plan prior to the due dates Amendments Act of 1980). The Borrower has no "withdrawal liability" (as also defined in such contributions under Section 412 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(CAct) or 4063(a) of ERISA with respect to any Pension Plan;multiemployer pension plan.
Appears in 1 contract
ERISA. (i) 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 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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 expiredexpired 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 Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the CodeCode 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 PlanPlan except for a liability that could not reasonably be expected to have a Material Adverse Effect;
(iiiii) No Pension Plan As of the Borrower has been terminatedClosing Date, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iii) 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: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the 51 ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(iv) No Termination Event with respect to the Borrower or any ERISA Affiliate has occurred or is reasonably expected to occur; and
(v) 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.
Appears in 1 contract
Samples: Loan Agreement (Medcath Corp)
ERISA. (i) Neither 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 5.1(h7.1(i);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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 expiredexpired 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 Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the CodeCode 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 PlanPlan except for a liability that could not reasonably be expected to have a Material Adverse Effect;
(iii) No Pension Plan As of the Borrower has been terminatedClosing Date, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) 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: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) 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.
Appears in 1 contract
ERISA. (i) Neither As of the Closing Date, no Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h7.1(i);; ---------------
(ii) The Each Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Other than as set forth on Schedule 7.1(i), each Employee Benefit Plan that is intended to be --------------- qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the any Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminatedOther than as set forth on Schedule 7.1(i), and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has --------------- been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the any Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) No Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) Other than as set forth on Schedule 7.1(i), no Termination --------------- Event has occurred or is reasonably expected to occur; and
(vi) Other than as set forth on Schedule 7.1(i), no proceeding, claim, --------------- lawsuit and/or investigation is existing or, to the best knowledge of any 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 any Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
Appears in 1 contract
Samples: Credit Agreement (GTS Duratek Inc)
ERISA. (i) Neither the Borrower nor any ERISA Affiliate Related Company maintains or contributes to, or has to any obligation under, any Employee Benefit Plans Plan other than those identified listed on Schedule 5.1(h6.1(o);
(ii) The Borrower and each ERISA Affiliate . Each such Benefit Plan is in material substantial compliance with all applicable provisions of ERISA and the regulations Code, including but not limited to those provisions thereof relating to reporting and published interpretations thereunder disclosure, and neither the Borrower nor any Related Company has received any notice asserting that a Benefit Plan is not in compliance with respect ERISA. No material liability to all Employee Benefit Plans except for the PBGC or to a Multiemployer Plan has been, or is expected to be, incurred by the Borrower or any required amendments for which the remedial amendment period as defined in Section 401(b) of the Code has not yet expiredRelated Company. Each Employee Benefit Plan that is intended to be qualified qualify under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, qualifies and each any related trust related to such plan has been determined to be is exempt from federal income tax under Section 501(a) of the Code. No liability A favorable determination letter from the IRS has been incurred by issued (or applied for) with respect to each such plan and trust and nothing has occurred since the date of any such determination letter issued, that would adversely affect such qualification or tax-exempt status. No Benefit Plan subject to the minimum funding standards of the Code has failed to meet such standards. Neither the Borrower nor any Related Company has transferred any pension plan liability in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA. Neither the Borrower nor any ERISA Affiliate which remains unsatisfied for Related Company has any taxes liability, direct or penalties contingent, with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension other than to make payments to the Benefit Plan of the Borrower has been terminatedin accordance with its terms, and to there are no pending or threatened claims against any Benefit Plan. No non-exempt prohibited transaction with the knowledge meaning of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 4975 of the Code or Section 302 406 of ERISA, nor ERISA has there been occurred with respect to a Benefit Plan. No employee or former employee of the Borrower or any event requiring Related Company is or may become entitled to any disclosure benefit under a Benefit Plan that is a “welfare plan” within the meaning of Section 4041(c)(3)(C) or 4063(a3(1) of ERISA following such employee’s termination of employment. Each such welfare plan that is a group health plan has been operated in compliance with respect to the provisions of Section 4980B of the Code and Sections 601-609 of ERISA and any Pension Plan;applicable provisions of state law that are similar.
Appears in 1 contract
ERISA. (i) 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 5.1(h);
(iia) The Borrower and each its Consolidated Subsidiaries have complied in all material respects with ERISA Affiliate is in material compliance with all applicable provisions of 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 and, where applicable, the Code regarding each Plan, if any that they maintain.
(b) No act, omission or transaction has not yet expired. Each Employee Benefit Plan occurred that is intended to be qualified under Section 401(a) could result in imposition on the Borrower, any of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower its Subsidiaries or any ERISA Affiliate which remains unsatisfied for any taxes (whether directly or penalties with respect indirectly) of (i) either a civil penalty assessed pursuant to any Employee Benefit subsections (c), (i) or (l) of section 502 of ERISA or a tax imposed pursuant to Chapter 43 of Subtitle D of the Code or (ii) breach of fiduciary duty liability damages under section 409 of ERISA.
(c) No Plan (other than a defined contribution plan) or any Multiemployer Plan;
(iii) No Pension trust created under any such Plan of the Borrower has been terminatedterminated since September 2, and 1974. No liability to the knowledge PBGC (other than for the payment of current premiums which are not past due) by the Borrower no Pension Plan Borrower, any of its Subsidiaries or any ERISA Affiliate has been terminatedor is expected by the Borrower, nor any of its Subsidiaries or any ERISA Affiliate to be incurred with respect to any Plan. No ERISA Event with respect to any Plan has occurred.
(d) Full payment when due has been made of all amounts which the Borrower, any of its Subsidiaries or any ERISA Affiliate is required under the terms of each Plan, if any, or Governmental Requirements to have paid as contributions to such Plan as of the date hereof, and no accumulated funding deficiency (as defined in Section 412 section 302 of the Code) been incurred (without regard to any waiver granted under Section ERISA and section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received whether or requested not waived, exists with respect to any Pension Plan, nor has the Borrower or any ERISA Affiliate failed .
(e) Each Plan subject to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 Title IV of ERISA or satisfies the terms minimum funding requirements of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 and Part 3 of Title I of ERISA.
(f) Neither the Borrower nor its Subsidiaries sponsors or maintains an employee welfare benefit plan, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(aas defined in section 3(1) of ERISA with respect that provides benefits to former employees of such entities.
(g) Neither the Borrower nor its Subsidiaries nor any ERISA Affiliate would be subject to any Pension withdrawal liability under Part 1 of Subtitle E of Title IV of ERISA if the Borrower, its Subsidiaries or any ERISA Affiliate were to engage in a “complete withdrawal” (as defined in Section 4203 of ERISA) or a “partial withdrawal” (as defined in Section 4205 of ERISA) for any Multiemployer Plan;.
(h) Neither the Borrower, its Subsidiaries nor any ERISA Affiliate is required to provide security under section 401(a)(29) of the Code due to a Plan amendment that results in an increase in current liability for any Plan.
Appears in 1 contract
Samples: Credit Agreement (Constellation Energy Partners LLC)
ERISA. (a) DISCLOSURE SCHEDULE (3.12) lists (i) Neither the Borrower nor any all ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
Affiliates and (ii) The Borrower all Plans and separately identifies all Pension Plans, including Title IV Plans, Multiemployer Plans, ESOPs and Welfare Plans, including all Retiree Welfare Plans. Copies of all such listed Plans, together with a copy of the latest IRS/DOL 5500-series form for each ERISA Affiliate such Plan, have been delivered to Agent. Except with respect to Multiemployer Plans, each Qualified Plan has been determined by the IRS to qualify under Section 401 of the IRC, the trusts created thereunder have been determined to be exempt from tax under the provisions of Section 501 of the IRC, and nothing has occurred that would cause the loss of such qualification or tax-exempt status, however, such plans have been submitted to the IRS for updated determination letters. Each Plan is in compliance, in all material compliance respects, with all the applicable provisions of ERISA and the regulations and published interpretations thereunder with respect to IRC, including the timely filing of all Employee Benefit Plans except for reports required under the IRC or ERISA, including the statement required by 29 CFR Section 2520.104-23. Neither any required amendments for which the remedial amendment period as defined in Section 401(b) Credit Party, nor any of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any their Subsidiaries nor ERISA Affiliate has been terminated, nor has failed to make any accumulated funding deficiency (contribution or pay any amount due as defined in required by either Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received IRC 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates such Plan. Neither any Credit Party nor any of such contributions under their Subsidiaries nor ERISA Affiliate has engaged in a "prohibited transaction," as defined in Section 412 406 of ERISA and Section 4975 of the Code IRC, in connection with any Plan, that would subject any Credit Party or their Subsidiaries to a material tax on prohibited transactions imposed by Section 502(i) of ERISA or Section 302 4975 of ERISA, nor the IRC.
(b) Except as set forth in DISCLOSURE SCHEDULE (3.12): (i) no Title IV Plan has there been any Unfunded Pension Liability; (ii) no ERISA Event or event requiring any disclosure under described in Section 4041(c)(3)(C) or 4063(a4062(e) of ERISA with respect to any Title IV Plan has occurred or is reasonably expected to occur; (iii) there are no pending, or to the knowledge of any Credit Party, threatened claims (other than claims for benefits in the normal course), sanctions, actions or lawsuits, asserted or instituted against any Plan or any Person as fiduciary or sponsor of any Plan; (iv) no Credit Party, no Subsidiary of any Credit Party or ERISA Affiliate has incurred or reasonably expects to incur any liability as a result of a complete or partial withdrawal from a Multiemployer Plan; (v) within the last five years no Title IV Plan of any Credit Party, no Subsidiary of any Credit Party or ERISA Affiliate has been terminated, whether or not in a "standard termination" as that term is used in Section 4041(b)(1) of ERISA, nor has any Title IV Plan of any Credit Party, any Subsidiary of any Credit Party or any ERISA Affiliate (determined at any time within the last five years) with Unfunded Pension Liabilities been transferred outside of the "controlled group" (within the meaning of Section 4001(a)(14) of ERISA) of any Credit Party, any Subsidiary of any Credit Party or ERISA Affiliate (determined at such time); (vi) except in the case of any ESOP, Stock of all Credit Parties, their Subsidiaries and their ERISA Affiliates makes up, in the aggregate, no more than 10% of fair market value of the assets of any Plan measured on the basis of fair market value as of the latest valuation date of any Plan;; and (vii) no liability under any Title IV Plan has been satisfied with the purchase of a contract from an insurance company that is not rated AAA by the Standard & Poor's Corporation or an equivalent rating by another nationally recognized rating agency.
Appears in 1 contract
ERISA. (i) 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 5.1(hSCHEDULE 6.1(h);
(ii) The the Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) Neither the Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) No proceeding, claim, 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.
Appears in 1 contract
ERISA. (i) 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 5.1(h);
(ii) The Borrower and each ERISA Affiliate is are in compliance in all material compliance respects with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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;
(iiiii) No Material Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Material 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension 38 Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C4041(c) (3) (C) or 4063(a) of ERISA with respect to any Pension Plan;
(iii) Neither the Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(iv) No Termination Event has occurred or is reasonably expected to occur; and
(v) No proceeding, claim, lawsuit and/or investigation is existing or, to the best knowledge of the Borrower, 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 in which there is a reasonable possibility of an adverse decision and which, if adversely determined, could reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Credit Agreement (Markel Corp)
ERISA. (i) No ERISA Event which might result in liability individually or in the aggregate in excess of $5,000,000 (other than for premiums payable under Title IV of ERISA) has occurred or is reasonably expected to occur with respect to any Pension Plan.
(ii) Schedule B (Actuarial Information) to the most recently completed annual report (Form 5500 Series) for each Pension Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Administrative Agent, is complete and, to the best knowledge of the Borrower, accurate, and since the date of such Schedule B there has been no material adverse change in the funding status of any such Pension Plan.
(iii) Neither the Borrower nor any ERISA Affiliate maintains or contributes tohas incurred, or, to the best knowledge of the Borrower, is reasonably expected to incur, any Withdrawal Liability to any Multiemployer Plan.
(iv) Neither the Borrower nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has any obligation underbeen terminated, any Employee Benefit Plans other than those identified on Schedule 5.1(h);within the meaning of Title IV of ERISA, and, to the best knowledge of the Borrower, no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated within the meaning of Title IV of ERISA.
(iiv) The Borrower and each of its ERISA Affiliate Affiliates is in compliance in all material compliance respects with all ERISA, the Code, to the extent applicable provisions of 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 employee benefit plan as defined in Section 401(b3(3) of ERISA, and all applicable regulations promulgated under ERISA and the Code has not yet expired. Each Employee Benefit Plan that is intended the noncompliance with which could reasonably be expected to be qualified under Section 401(a) have a Material Adverse Effect or result in liability individually or in the aggregate in excess of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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;$5,000,000.
(iiivi) No Pension Single Employer Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has incurred any accumulated funding deficiency (as defined in Section 412 Sections 302(a)(2) of the CodeERISA and 412(a) been incurred (without regard to any waiver granted under Section 412 of the Code), whether or not waived.
(vii) Neither Borrower nor any ERISA Affiliate has failed to make a required contribution or any funding waiver from other required payment to a Multiemployer Plan.
(viii) Listed on SCHEDULE 4.01(K) hereto are all Pension Plans, Foreign Pension Plans and employee welfare benefit plans that provide retiree welfare benefits maintained or contributed to by Borrower or any ERISA Affiliate.
(ix) Neither Borrower nor any ERISA Affiliate has engaged in a nonexempt prohibited transaction described in Sections 406 of ERISA or 4975 of the Internal Revenue Service been received or requested with respect Code which is reasonably expected to any Pension Plan, nor has result in liability of the Borrower or any ERISA Affiliate failed to make any contributions individually or to pay any amounts due and owing as required by Section 412 in the aggregate in excess of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;$5,000,000.
Appears in 1 contract
ERISA. (i) Neither As of the Closing Date, neither Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h6.1(i);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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 expiredexpired 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 Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the CodeCode 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;
(iii) No Pension Plan As of the Borrower has been terminatedClosing Date, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminatedterminated for which the liabilities have not been satisfied in full, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C4041(c)(3)(c) or 4063(a) of ERISA with respect to any Pension Plan;
(iv) Neither Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur which could reasonably result in liability in excess of $2,000,000 in the aggregate, other than a Termination Event described in clause (d) of the definition thereof, in which case adequate reserves in respect thereof have been established on the books of Borrower or the affected ERISA Affiliate to the extent required by GAAP; and
(vi) 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 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 Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
Appears in 1 contract
Samples: Credit Agreement (Radyne Corp)
ERISA. (i) Neither None of the Borrower nor any ERISA Affiliate or its Controlled Group maintains or ----- contributes to, or has to any obligation under, any Employee Benefit Plans Plan other than those identified on Schedule 5.1(h);
disclosed to the Administrative Lender in writing. Each such Plan (iiother than any Multiemployer Plan) The is in compliance in all material respects with the applicable provisions of ERISA, the Code, and any other applicable Federal or state law, rule or regulation. With respect to each Plan (other than any Multiemployer Plan) of the Borrower and each member of its Controlled Group, all reports required under ERISA Affiliate is in material compliance with all applicable provisions of ERISA and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans except for or any required amendments for which the remedial amendment period as defined in Section 401(b) of the Code has not yet expired. Each Employee Benefit Plan that is intended other Applicable Law to be qualified under Section 401(a) filed with any governmental authority, the failure of the Code has been determined by the Internal Revenue Service which to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) file could reasonably result in liability of the Code. 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;
(iii) member of its Controlled Group in excess of $100,000, have been duly filed. All such reports are true and correct in all material respects as of the date given. No Pension Plan of the Borrower or any member of its Controlled Group has been terminated, and to the knowledge terminated under Section 4041(c) of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 412(a) of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect the result of which could reasonably be expected to any Pension Plan, nor has have a Material Adverse Effect. None of the Borrower or any ERISA Affiliate member of its Controlled Group has failed to make any contributions contribution or to pay any amounts amount due and or owing as required by Section 412 of the Code, Section 302 of ERISA or under the terms of any Pension Plan prior to the due dates of such contributions under Plan, or by Section 412 of the Code or Section 302 of ERISA, nor ERISA by the due date under Section 412 of the Code and Section 302 of ERISA the result of which could reasonably be expected to have a Material Adverse Effect. There has there been no ERISA Event or any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan or its related trust of the Borrower or any member of its Controlled Group since the effective date of ERISA. The present value of the benefit liabilities, as defined in Title IV of ERISA, of each Plan subject to Title IV of ERISA (other than a Multiemployer Plan;) of the Borrower and each member of its Controlled Group does not exceed by more than $100,000 the present value of the assets of each such Plan as of the most recent valuation date using each such Plan's actuarial assumptions at such date. There are no pending, or to the best of the Borrower's knowledge threatened, claims, lawsuits or actions (other than routine claims for benefits in the ordinary course) asserted or instituted against, and neither the Borrower nor any member of its Controlled Group has knowledge of any threatened litigation or claims against, the assets of any Plan or its related trust or against any fiduciary of a Plan with respect to the operation of such Plan the result of which could reasonably be expected to have a Material Adverse Effect. None of the Borrower or, to the best of the Borrower's knowledge, any member of its Controlled Group has engaged in any prohibited transactions, within the meaning of Section 406 of ERISA or Section 4975 of the Code, in connection with any Plan the result of which could reasonably be expected to have a Material Adverse Effect. None of the Borrower or any member of its Controlled Group has withdrawn from any Multiemployer Plan except as described in writing to the Administrative Lender prior to the Agreement Date, nor has incurred or reasonably expects to incur (A) any liability under Title IV of ERISA (other than premiums due under Section 4007 of ERISA to the PBGC), (B) any withdrawal liability (and no event has occurred which with the giving of notice under Section 4219 of ERISA would result in such liability) under Section 4201 of ERISA as a result of a complete or partial withdrawal (within the meaning of Section 4203 or 4205 of ERISA) from a Multiemployer Plan, or (C) any liability under Section 4062 of ERISA to the PBGC or to a trustee appointed under Section 4042 of ERISA. None of the Borrower, any member of its Controlled Group, or any organization to which the Borrower or any member of its Controlled Group is a successor or parent corporation within the meaning of ERISA Section 4069(b), has engaged in a transaction within the meaning of ERISA Section 4069 the result of which could reasonably be expected to have a Material Adverse Effect. None of the Borrower or any member of its Controlled Group maintains or has established any Plan, which is a material welfare benefit plan within the meaning of Section 3(1) of ERISA and which provides for continuing benefits or coverage for any participant or any beneficiary of any participant after such participant's termination of employment, except as may be required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA") and the regulations thereunder. Each of Borrower and its Controlled Group which maintains a Plan which is a welfare benefit plan within the meaning of Section 3(1) of ERISA has complied in all material respects with any applicable notice and continuation requirements of COBRA and the regulations thereunder. None of the Borrower or any member of its Controlled Group maintains, has established, or has ever participated in a multiemployer welfare benefit arrangement within the meaning of Section 3(40)(A) of ERISA.
Appears in 1 contract
ERISA. (ia) Neither The present value of all benefits vested under all Pension Plans did not, as of the most recent valuation date of such Pension Plans, exceed the value of the assets of the Pension Plans allocable to such vested benefits by an amount which would represent a potential material liability of Borrower nor any ERISA Affiliate maintains or contributes toaffect materially the ability of Borrower to perform the Loan Documents.
(b) No Plan or trust created thereunder, or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) which could subject such Plan or any obligation underother Plan, any Employee Benefit Plans other than those identified trust created thereunder, or any trustee or administrator thereof, or any party dealing with any Plan or any such trust to the tax or penalty on Schedule 5.1(h);prohibited transactions imposed by Section 502 of ERISA or Section 4975 of the Code.
(iic) The Borrower and each ERISA Affiliate is No Pension Plan or trust has been terminated, except in material compliance accordance with all applicable provisions of ERISA the Code, ERISA, and the regulations of the Internal Revenue Service and published interpretations thereunder with respect the PBGC as applicable to all Employee Benefit Plans except for any required amendments for solvent plans in which the remedial amendment period benefits of participants are fully protected. No "reportable event" as defined in Section 401(b) 4043 of the Code ERISA has occurred for which notice has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower waived or any ERISA Affiliate for which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;alternative notice procedures are permitted.
(iiid) No Pension Plan of the Borrower or trust created thereunder has been terminated, and to the knowledge of the Borrower no Pension Plan of incurred any ERISA Affiliate has been terminated, nor has any "accumulated funding deficiency deficiency" (as such term is defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA) whether or not waived, nor since the effective date of ERISA.
(e) The required allocations and contributions to Pension Plans will not violate Section 415 of the Code.
(f) Borrower has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect no withdrawal liability to any Pension Plan;trust created pursuant to a multi-employer pension or benefit plan nor would it be subject to any such withdrawal liability in excess of Two Hundred Fifty Thousand Dollars ($250,000) if it withdrew from any such plan or if its participation therein were otherwise terminated.
Appears in 1 contract
Samples: Loan Agreement (Key Technology Inc)
ERISA. (ia) Neither the Borrower nor any ERISA Affiliate maintains or contributes toSchedule 4.09(a) separately identifies all Qualified Plans, or has any obligation underall Title IV Plans, any Employee all Multiemployer Plans, all unfunded Pension Plans and all Welfare Benefit Plans that provide retiree benefits (other than those identified continuation coverage provided pursuant to Section 4980B of the Code).
(b) Each Qualified Plan has been determined by the IRS to qualify under Section 401 of the Code, and the trusts created thereunder have been determined to be exempt from tax under the provisions of Section 501 of the Code, and to the best knowledge of the Borrowers nothing has occurred which would cause the loss of such qualification or tax-exempt status.
(c) Except as set forth on Schedule 5.1(h4.09(c);
(ii) The Borrower and , each ERISA Affiliate Plan is in compliance in all material compliance respects with all applicable provisions of ERISA and the regulations Code, including, without limitation, the filing of reports required under ERISA or the Code which are true and published interpretations thereunder correct in all material respects as of the date filed, and with respect to each Plan, other than a Qualified Plan, all Employee Benefit Plans except for any required amendments for which contributions and benefits have been paid in accordance with the remedial amendment period as defined in Section 401(bprovisions of each such Plan.
(d) None of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower Borrowers or any ERISA Affiliate which remains unsatisfied for any taxes or penalties Affiliate, with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Qualified Plan, nor has the Borrower or any ERISA Affiliate failed to make any contributions contribution or to pay any amounts amount due and owing as required by Section 412 of the Code, Code or Section 302 of ERISA or the terms of any Pension Plan prior such Qualified Plan.
(e) With respect to all Welfare Benefit Plans, the present value of future anticipated expenses for benefits pursuant to the due dates latest actuarial projections of liabilities does not exceed $110,000,000, and copies of such contributions under Section 412 latest projections have been made available to the Term Lenders.
(f) With respect to Pension Plans, other than Qualified Plans, the present value of the Code or Section 302 of ERISAliabilities for current participants thereunder using PBGC interest assumptions does not exceed $2,500,000. The Unfunded Pension Liability, in the aggregate, for all Title IV Plans does not exceed the amount reflected in the Borrowers' financial statements delivered to the Term Lenders.
(g) Except as set forth on Schedule 4.09(g), there has been no, nor has is there been reasonably expected to occur, any ERISA Event or event requiring any disclosure under described in Section 4041(c)(3)(C) or 4063(a) 4068 of ERISA with respect to any Title IV Plan.
(h) Except as set forth on Schedule 4.09(h), there are no pending or, to the knowledge of the Borrowers, threatened claims, actions or lawsuits (other than claims for benefits in the normal course), asserted or instituted against (i) any Plan or any Qualified Plan or the assets of any such Plan, (ii) any fiduciary with respect to any Plan or Qualified Plan or (iii) the Borrowers with respect to any Plan or Qualified Plan.
(i) None of the Borrowers or any ERISA Affiliate has incurred or has any reasonable likelihood of incurring any Withdrawal Liability under Section 4201 of ERISA as a result of a complete or partial withdrawal from a Multiemployer Plan (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in any such liability).
(j) Within the last five years none of the Borrowers or any ERISA Affiliate has engaged in a transaction which resulted in a Title IV Plan with Unfunded Pension Liabilities being transferred outside of the "controlled group" (within the meaning of Section 4001(a)(14) of ERISA) of any such entity.
(k) Except as set forth on Schedule 4.09(k), no Welfare Benefit Plan 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 by Section 4980B of the Code and at the sole expense of the participant or the beneficiary of the participant) which would result in a liability in an amount which would have a Material Adverse Effect. Each Borrower and each ERISA Affiliate has complied with the notice and continuation coverage requirements of Section 4980B of the Code and the regulations thereunder, except for non-compliances which in the aggregate would have no Material Adverse Effect.
(l) None of the Borrowers has engaged in a prohibited transaction, as defined in Section 4975 of the Code or Section 406 of ERISA, in connection with any Plan;, which would subject or has any reasonable likelihood of subjecting the Borrowers (after giving effect to any exemption) to a material tax on prohibited transactions imposed by Section 4975 of the Code or any other material liability.
(m) No liability under any Plan or Qualified Plan (whether terminated or on-going) has been funded or satisfied through the purchase of a contract from an insurance company that is not rated AA or better by Standard & Poor's Corporation or any equivalent or higher rating by another nationally recognized rating agency.
(n) None of the Borrowers and no ERISA Affiliate has any liability under any terminated "employee benefit plan", as defined in Section 3(3) of ERISA, of any related or unrelated entity.
(o) The present value of the liability, if any, with respect to all unfunded Pension Plans of the Borrowers is reflected on the most recent audited financial statements delivered to the Term Lenders pursuant to this Agreement.
Appears in 1 contract
ERISA. (a) Schedule 4.18 sets forth: (i) Neither the Borrower nor any ERISA Affiliate maintains or contributes toall "employee benefit plans", or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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(b3(3) of ERISA, and describes any other material employee benefit arrangements (the Code has "Plans") maintained by Company and any of its Subsidiaries or to which Company or any its Subsidiaries contributed or is obligated to contribute thereunder, and (ii) all "employee pension plans", as defined in Section 3(2) of ERISA (the "Pension Plans"), maintained by Company, any of its Subsidiaries or any of its ERISA Affiliates to which Company, any of its Subsidiaries or any of its ERISA Affiliates contributed or is obligated to contribute thereunder.
(b) Purchaser will not yet expired. Each Employee Benefit have (i) any obligation to make any contribution to any Multiemployer Plan that is or (ii) any withdrawal liability from any such Multiemployer Plan under Section 4201 of ERISA which it would not have had if it had not purchased the Note from Company at the Closing in accordance with the terms of this Agreement.
(c) The Pension Plans intended to be qualified under Section 401(a) 401 of the Code has been determined by IRC are so qualified and the Internal Revenue Service to be so qualifiedtrusts maintained pursuant thereto are exempt from federal income taxation under Section 501 of the IRC, and each trust related to such plan nothing has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties occurred with respect to the operation of the Pension Plans which could cause the loss of such qualification or exemption or the imposition of any Employee Benefit Plan liability, penalty, or any Multiemployer Plan;tax under ERISA or the IRC.
(iiid) No Pension Plan All contributions required by law or pursuant to the terms of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred Plans (without regard to any waiver waivers granted under Section 412 of the Code), nor IRC) to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof (including any valid extension) and no accumulated funding deficiencies exist in any of the Pension Plans.
(e) There is no "amount of unfunded benefit liabilities" as defined in Section 4001(a)(18) of ERISA in any of the respective Pension Plans. Each of the respective Pension Plans are fully funded in accordance with the actuarial assumptions used by the PBGC to determine the level of funding required in the event of the termination of the Pension Plan and all benefit liabilities do not exceed the assets of such Pension Plans.
(f) There has any funding waiver from been no "reportable event" as that term is defined in Section 4043 of ERISA and the Internal Revenue Service been received or requested regulations thereunder with respect to any the Pension PlanPlans which would require the giving of notice, nor has the Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section Sections 4041(c)(3)(C), 4063(a) or 4063(a4068(f) of ERISA.
(g) There is no material violation of ERISA with respect to the filing of applicable reports, documents, and notices regarding the Plans with the Secretary of Labor and the Secretary of the Treasury or the furnishing of such documents to the participants or beneficiaries of the Plans.
(h) True, correct and complete copies of the following documents, with respect to each of the Plans, have been made available or delivered to Purchaser by Company: (A) any Pension Plan;plans and related trust documents, and amendments thereto, (B) the most recent Forms 5500 (including any schedules thereto) and the most recent actuarial valuation report, if any, (C) the last IRS determination letter, and (D) summary plan descriptions .
(i) There are no pending actions, claims or lawsuits which have been asserted or instituted against the Plans, the assets of any of the trusts under such Plans or the Plan sponsor or the Plan administrator, or against any fiduciary of the Plans with respect to the operation of such Plans (other than routine benefit claims), nor does Company or any of its Subsidiaries have knowledge of facts which could form the basis for any such claim or lawsuit.
(j) All amendments and actions required to bring the Plans into conformity in all material respects with all of the applicable provisions of ERISA and other applicable laws have been made or taken except to the extent that such amendments or actions are not required by law to be made or taken until a date after the Closing Date.
(k) The Plans have been maintained, in all material respects, in accordance with their terms and with all provisions of ERISA (including rules and regulations thereunder) and other applicable Federal and state law, and neither Company nor any of its Subsidiaries or "party in interest" or "disqualified person" with respect to the Plans has engaged in a "prohibited transaction" within the meaning of Section 4975 of the IRC or Section 406 of ERISA.
Appears in 1 contract
ERISA. (i) Neither As of the Borrower Closing Date, neither the Company nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h7.1(i);; ---------------
(ii) The Borrower the Company and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower Company or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the Borrower Company or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) Neither the Company nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) No proceeding, claim, lawsuit and/or investigation is existing or, to the best knowledge of the Company 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 Company or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
Appears in 1 contract
ERISA. (i) Neither Borrower and the Borrower nor any ERISA Affiliate maintains or contributes tomembers of its Controlled Group maintain only those Defined Benefit Pension Plans, or has any obligation under, any Employee Benefit Defined Contribution Plans and other than those identified Plans listed on Schedule 5.1(h);
(ii) The Borrower 4.11 and each ERISA Affiliate is in material compliance with all applicable provisions of ERISA and the regulations and published interpretations thereunder with respect contribute to all Employee Benefit only those Multiemployer Plans except for any required amendments for which the remedial amendment period listed on Schedule 4.11. Except as defined in Section 401(b) of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualifieddisclosed on Schedule 4.11, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the best of Borrower's knowledge (1) all such Defined Benefit Pension Plans and Defined Contribution Plans meet the minimum funding standards of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section ss. 412 of the Code, Section the Treasury regulations thereunder and ss. 302 of ERISA or the terms of without regard to any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA, nor funding waiver; (2) no Prohibited Transaction has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA occurred with respect to any Plan; (3) no Reportable Event has occurred with respect to any Defined Benefit Pension Plan;; (4) no Defined Benefit Pension Plan sponsored by Borrower or any member of its Controlled Group has any Amount of Unfunded Benefit Liabilities; (5) no trust was established in connection with any such Defined Benefit Pension Plan pursuant to ss. 4049 of ERISA; and (6) no liabilities (whether or not such liability is being litigated) have been asserted against Borrower or any member of its Controlled Group in connection with any such Defined Benefit Pension Plan by the PBGC or by a trustee appointed pursuant to ss. 4042(b) or (c) of ERISA; and (7) no lien has been attached and no person has threatened to attach a lien on any property of Borrower or any member of its Controlled Group as a result of any failure to comply with the Code or the Treasury regulations thereunder or ERISA. All Plans maintained by Borrower or any member of its Controlled Group comply (A) in operation with the requirements of the Code and the Treasury regulations thereunder and ERISA, and (B) in form with those requirements of the Code and the Treasury regulations thereunder and ERISA which must be met on the date hereof except to the extent where a failure to comply will not have a material adverse effect on Borrower's financial condition or operations.
Appears in 1 contract
ERISA. (a) For each Plan adopted by such Borrower or any ERISA Affiliate, such Borrower or such ERISA Affiliate shall (i) Neither use its best efforts to seek and receive a determination letter from 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 5.1(h);
(ii) The Borrower and each ERISA Affiliate IRS that such Plan is in material compliance with all applicable provisions of 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 qualified under Section 401(b401(a) of the Code has not yet expired. Each Employee Benefit (unless such Plan that is intended a master or prototype plan), and (ii) from and after the adoption of any such Plan, use its best efforts to cause such Plan to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service and to be so qualified, administered in all material respects in accordance with the requirements of ERISA and each trust related to such plan has been determined to be exempt under Section 501(a401(a) of the Code. No liability , and (iii) not take any action which would cause such Plan not to be qualified under Section 401(a) of the Code or not to be administered in all material respects in accordance with the requirements of ERISA and Section 401(a) of the Code.
(b) Such Borrower shall not, and shall not permit any ERISA Affiliate, to:
(i) Engage in any transaction for which an exemption is not available or has not been incurred by previously obtained from the DOL in connection with which such Borrower or any ERISA Affiliate which remains unsatisfied for any taxes could be subject to either a civil penalty assessed pursuant to Section 502(i) of ERISA or penalties with respect to any Employee Benefit Plan or any Multiemployer Plantax imposed by Section 4975 of the Code;
(iiiii) No Pension Plan of the Borrower has been terminated, and Permit to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has exist any accumulated funding deficiency (whether or not waived), as defined in Section 302 of ERISA and Section 412 of the Code; (iii) been incurred (without regard Fail to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received pay timely required contributions or requested annual installments due 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect waived funding deficiency to any Pension Benefit Plan;
Appears in 1 contract
Samples: Loan and Security Agreement (Emons Transportation Group Inc)
ERISA. (a) Schedule 4.18 sets forth: (i) Neither the Borrower nor any ERISA Affiliate maintains or contributes toall "employee benefit ----- plans", or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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(b3(3) of ERISA, and describes any other material employee benefit arrangements (the Code has "Plans") maintained by Company and any of its Subsidiaries or to which Company or any its Subsidiaries contributed or is obligated to contribute thereunder, and (ii) all "employee pension plans", as defined in Section 3(2) of ERISA (the "Pension Plans"), maintained by Company, any of its Subsidiaries or any of its ERISA Affiliates to which Company, any of its Subsidiaries or any of its ERISA Affiliates contributed or is obligated to contribute thereunder.
(b) Purchaser will not yet expired. Each Employee Benefit have (i) any obligation to make any contribution to any Multiemployer Plan that is or (ii) any withdrawal liability from any such Multiemployer Plan under Section 4201 of ERISA which it would not have had if it had not purchased the Note from Company at the Closing in accordance with the terms of this Agreement.
(c) The Pension Plans intended to be qualified under Section 401(a) 401 of the Code has been determined by IRC are so qualified and the Internal Revenue Service to be so qualifiedtrusts maintained pursuant thereto are exempt from federal income taxation under Section 501 of the IRC, and each trust related to such plan nothing has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties occurred with respect to the operation of the Pension Plans which could cause the loss of such qualification or exemption or the imposition of any Employee Benefit Plan liability, penalty, or any Multiemployer Plan;tax under ERISA or the IRC.
(iiid) No Pension Plan All contributions required by law or pursuant to the terms of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred Plans (without regard to any waiver waivers granted under Section 412 of the Code), nor IRC) to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof (including any valid extension) and no accumulated funding deficiencies exist in any of the Pension Plans.
(e) There is no "amount of unfunded benefit liabilities" as defined in Section 4001(a)(18) of ERISA in any of the respective Pension Plans. Each of the respective Pension Plans are fully funded in accordance with the actuarial assumptions used by the PBGC to determine the level of funding required in the event of the termination of the Pension Plan and all benefit liabilities do not exceed the assets of such Pension Plans.
(f) There has any funding waiver from been no "reportable event" as that term is defined in Section 4043 of ERISA and the Internal Revenue Service been received or requested regulations thereunder with respect to any the Pension PlanPlans which would require the giving of notice, nor has the Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section Sections 4041(c)(3)(C), 4063(a) or 4063(a4068(f) of ERISA.
(g) There is no material violation of ERISA with respect to the filing of applicable reports, documents, and notices regarding the Plans with the Secretary of Labor and the Secretary of the Treasury or the furnishing of such documents to the participants or beneficiaries of the Plans.
(h) True, correct and complete copies of the following documents, with respect to each of the Plans, have been made available or delivered to Purchaser by Company: (A) any Pension Plan;plans and related trust documents, and amendments thereto, (B) the most recent Forms 5500 (including any schedules thereto) and the most recent actuarial valuation report, if any, (C) the last IRS determination letter, (D) summary plan descriptions, (E) written communications to employees relating to the Plans and (F) written descriptions of all non-written agreements relating to the Plans.
(i) There are no pending actions, claims or lawsuits which have been asserted or instituted against the Plans, the assets of any of the trusts under such Plans or the Plan sponsor or the Plan administrator, or against any fiduciary of the Plans with respect to the operation of such Plans (other than routine benefit claims), nor does Company or any of its Subsidiaries have knowledge of facts which could form the basis for any such claim or lawsuit.
(j) All amendments and actions required to bring the Plans into conformity in all material respects with all of the applicable provisions of ERISA and other applicable laws have been made or taken except to the extent that such amendments or actions are not required by law to be made or taken until a date after the Closing Date.
(k) The Plans have been maintained, in all material respects, in accordance with their terms and with all provisions of ERISA (including rules and regulations thereunder) and other applicable Federal and state law, and neither Company nor any of its Subsidiaries or "party in interest" or "disqualified person" with respect to the Plans has engaged in a "prohibited transaction" within the meaning of Section 4975 of the IRC or Section 406 of ERISA.
Appears in 1 contract
ERISA. (i) 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 5.1(h6.1(i);
(ii) The the Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) Neither the Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) incurred any liability to the PBGC which remains outstanding
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) No proceeding, claim, 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.
Appears in 1 contract
Samples: Credit Agreement (Corrections Corporation of America)
ERISA. (ia) Neither None of the Borrower employee benefit plans maintained at any time by the Company or the trusts (if any) forming part of such plans has engaged in a prohibited transaction which could subject any such employee benefit plan or trust to a material tax or penalty on prohibited transactions imposed under Internal Revenue Code Section 4975 or ERISA.
(b) None of the employee benefit plans maintained at any time by the Company which are employee pension benefit plans and which are subject to Title IV of ERISA or the trusts that are part of such plans has been terminated so as to result in a material liability of the Company under ERISA or the Code, nor has any such employee benefit plan of the Company incurred any material liability to the Pension Benefit Guaranty Corporation, other than for required insurance premiums which have been paid or are not yet due and payable; neither the Company nor any ERISA Affiliate affiliate thereof has withdrawn, in either a complete or partial withdrawal, from any multi-employer Plan resulting in any unpaid withdrawal liability; the Company has made or provided for all contributions to all such employee pension benefit plans which it maintains and which are required by law or contributes tosuch plans as of the end of the most recent fiscal year under each such plan; the Company has not incurred any accumulated funding deficiency with respect to any such plan, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);subject to Section 412
(iic) The Borrower benefit liabilities under the employee pension benefit plans which are subject to Title IV of ERISA, maintained by the Company, do not exceed the current value of the assets of such employee benefit plans allocable to such benefits, determined under the actuarial methods and assumptions that would apply if such plans were terminated in accordance with ERISA and the Code.
(d) To the best of the Company's knowledge, each ERISA Affiliate employee benefit plan maintained by the Company has been administered in accordance with its terms in all material respects and is in compliance in all material compliance respects with all applicable provisions requirements of ERISA (if applicable) and the other applicable laws, 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 expiredrules. Each Employee Benefit Plan employee benefit plan maintained by the Company that is intended to be qualified "qualified" under Section 401(a) of the Code has been determined by received a favorable determination letter of the Internal Revenue Service to be so qualifiedService, which letter remains in effect, and each trust related to such plan nothing has been determined to be exempt under Section 501(a) of occurred since the Code. 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates date of such contributions under Section 412 determination that could adversely affect the qualification of the Code or Section 302 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;such plan.
Appears in 1 contract
Samples: Merger Agreement (Provant Inc)
ERISA. (i) Neither As of the Closing Date, no Borrower nor or any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h7.1(i);
(ii) The Each Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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 expiredexpired 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 Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the CodeCode 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 any Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer PlanPlan except for a liability that could not reasonably be expected to have a Material Adverse Effect;
(iii) No Pension Plan As of the Borrower has been terminatedClosing Date, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the any Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) 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 Borrower or any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) 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 any 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 any Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
Appears in 1 contract
Samples: Credit Agreement (Belk Inc)
ERISA. (i) Neither the any Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);; ---------------
(ii) The Each Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of ERISA and all other laws applicable to any Employee Benefit Plans 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. Each such Employee Benefit Plan has been operated in a manner to preserve such qualification. No liability has been incurred by the any Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code)) , nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the any Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) Neither any Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code; (B) 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; (C) failed to make a required contribution or payment to a Multiemployer Plan; or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) The execution and delivery by Borrowers of this Agreement and the borrowings hereunder will not involve any prohibited transaction under ERISA or the Code;
(vi) No Termination Event has occurred or is reasonably expected to occur; and
(vii) No material proceeding, claim, lawsuit and/or investigation is existing or, to the best knowledge of any Borrower after due inquiry, threatened concerning or involving any (A) employee welfare benefit plan (as defined in Section 3(1) of ERISA) maintained or contributed to by any Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
Appears in 1 contract
Samples: Credit Agreement (Maxim Group Inc /)
ERISA. (i) Neither 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 5.1(h6.1(i);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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, except where the failure to so comply would 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 Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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, except where such liability would not reasonably be expected to have a Material Adverse Effect;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) Neither the Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, which would result in material liability under ERISA or the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) No proceeding, claim (except for ordinary claims for benefits under an Employee Benefit Plan), 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.
Appears in 1 contract
ERISA. (ia) Neither the Borrower nor any No Borrower, and no ERISA Affiliate Affiliate, maintains or contributes to, or has to any obligation under, any Employee Benefit Plans Plan other than those identified listed on Schedule 5.1(h);7.21.
(iib) The Borrower No Plan has been terminated or partially terminated or is insolvent or in reorganization, nor have any proceedings been instituted to terminate or reorganize any Plan.
(c) No Borrower, and each no ERISA Affiliate is Affiliate, has any withdrawal liability, including contingent withdrawal liability, to any Benefit Plan pursuant to Title IV of ERISA.
(d) No Borrower, and no ERISA Affiliate, has incurred any liability to the PBGC which remains outstanding other than the payment of premiums, and there are no premium payments which have become due which are unpaid.
(e) No Benefit Plan has incurred any accumulated funding deficiency (as defined in material compliance with all applicable provisions Sections 302(a)(2) of ERISA and 412(a) of the Code), whether or not waived.
(f) No Borrower, and no ERISA Affiliate, has breached any of the responsibilities, obligations or duties imposed on it by ERISA or regulations and published interpretations promulgated 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 expiredPlan. Each Employee Benefit Plan is in substantial compliance with ERISA, and no Borrower, and no ERISA Affiliate, has received any notice asserting that a Plan is not in compliance with ERISA.
(g) Each Plan which is intended to be a qualified Plan has been determined by the IRS to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, as currently in effect and each trust related to such plan Plan has been determined to be exempt from federal income tax under Section 501(a) of the Code. No liability has been incurred .
(h) Except as provided on Schedule 7.21, no Borrower, and no ERISA Affiliate, maintains or contributes to any employer welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA.
(i) Schedule B to the Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties most recent annual report filed with the IRS with respect to any Employee each Benefit Plan and furnished to the Lenders is complete and accurate. Since the date of each such Schedule B, there has been no adverse change in funding status or any Multiemployer Plan;financial condition of the Benefit Plan relating to such Schedule B.
(iiij) No Pension Plan of the Borrower has been terminatedBorrower, and no ERISA Affiliate, has failed to the knowledge make a required installment under subsection (m) of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the Borrower Code or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as other payment required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code on or before the due date for such installment or other payment.
(k) No Borrower, and no ERISA Affiliate, is required to provide security to a Plan under Section 302 401(a)(29) of the Code due to a Plan amendment that results in an increase in current liability for the plan year.
(l) No Borrower, and no ERISA Affiliate or fiduciary of any Plan which is not a Multiemployer Plan (1) has engaged in a nonexempt prohibited transaction described in Sections 406 of -97- 106 ERISA or 4975 of the Code or (2) has taken or failed to take any action which would constitute or result in a Termination Event.
(m) No Borrower, and no ERISA Affiliate, has failed to make a required contribution or payment to a Multiemployer Plan nor has any Borrower or any ERISA Affiliate made a complete or partial withdrawal under Sections 4203 or 4205 of ERISA from a Multiemployer Plan.
(n) Each Borrower has given to the Agent and the Lenders copies of all of the following: each Benefit Plan and related trust agreement (including all amendments to such Plan and trust) in existence or committed to as of the date hereof and the most recent summary plan description, actuarial report, determination letter issued by the IRS and Form 5500 filed in respect of each such Benefit Plan in existence; a listing of all of the Multiemployer Plans with the aggregate amount of the most recent annual contributions required to be made by such Borrower and all of its ERISA Affiliates to each such Multiemployer Plan, any information which has been provided to such Borrower or its ERISA Affiliate regarding withdrawal liability under any Multiemployer Plan and the collective bargaining agreement pursuant to which such contribution is required to be made; each employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA, nor has there been the most recent summary plan description for such plan and the aggregate amount of the most recent annual payments made to terminated employees under each such Plan.
(o) No Borrower, and no ERISA Affiliate of any event requiring Borrower has, or would reasonably be expected to have, any disclosure liability under Section 4041(c)(3)(C) Sections 4063, 4064, 4069, 4204 or 4063(a4212(c) of ERISA with respect to any Pension Plan;ERISA.
Appears in 1 contract
Samples: Loan and Security Agreement (Roadmaster Industries Inc)
ERISA. Except as specifically disclosed to Lender in writing prior to the date of this Agreement, to Borrower’s actual knowledge, without due investigation: (i) 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 5.1(h);
(ii) The Borrower and each ERISA Affiliate there is in material compliance with all applicable provisions of ERISA and the regulations and published interpretations thereunder no accumulated funding deficiency with respect to all Employee Benefit Plans except for any required amendments for which the remedial amendment period employee pension benefit plan (as defined in Section 401(b3(2) of the Code Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) of Borrower or any Subsidiary, (ii) no reportable event has occurred with respect to any such plan, (iii) neither Borrower nor any Subsidiary has incurred withdrawal liability with respect to any multiemployer plan (as defined in Section 3(37) of ERISA) that has not yet expiredbeen satisfied in full, and (iv) to the best of Borrower’s knowledge, no such multiemployer plan is in reorganization. Each Employee No liability (whether or not such liability is being litigated) has been asserted against Borrower or any Subsidiary in connection with any such employee pension plan or any such multiemployer plan by the Pension Benefit Plan that Guaranty Corporation (“PBGC”), by a trustee appointed pursuant to Section 4042(b) or (c) of ERISA, or by a sponsor or an agent of a sponsor of such multiemployer plan, and no lien has been attached and no Person has threatened to attach a lien on any of Borrower’s or any Subsidiary’s property as a result of failure to comply with ERISA, or as a result of the termination of any such employee pension benefit plan. With respect to each such employee pension benefit plan which is intended to be tax-qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be Code of 1986, as amended (the “Code”), Borrower represents that the plan is so qualified, and each trust related to that the plan document meets the form of such requirement for qualification as evidenced by a favorable IRS opinion letter in the case of a preapproved master, prototype or volume submitter plan has been determined to be exempt under Section 501(a) document, or IRS determination letter, in the case of the Codean individually designed plan. No liability has been incurred by the Borrower or any ERISA Affiliate which remains unsatisfied Any actuarial report for any taxes such employee pension plan heretofore or penalties with respect hereafter furnished to Lender by Borrower is or will be accurate in all material respects. Neither Borrower nor any Subsidiary has any unfulfilled obligation to contribute to any Employee Benefit Plan or such plan. Neither Borrower nor any Multiemployer Plan;
(iii) No Pension Plan of the Borrower Subsidiary has been terminated, and to the knowledge of the Borrower no Pension Plan of engaged in any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency “prohibited transaction” (as such term is defined in Section 412 406 of ERISA or Section 4975 of the Code) been incurred (without regard to or any waiver granted other breach of fiduciary responsibility under Section 412 Part 4, Subtitle B, Title I of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the ERISA that could subject Borrower or any ERISA Affiliate failed Subsidiary or any officer of Borrower or any Subsidiary to make any contributions material tax or penalty on prohibited transactions imposed by such Section 4975 or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions material liability under Section 412 of the Code 502(i) or Section 302 (1) 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;.
Appears in 1 contract
ERISA. (i) Neither As of the Closing Date, no Borrower nor or any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h6.1(i);
(ii) The Each Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of ERISA 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 expiredexpired 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 Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the CodeCode 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 any Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer PlanPlan except for a liability that could not reasonably be expected to have a Material Adverse Effect;
(iii) No Pension Plan As of the Borrower has been terminatedClosing Date, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated Pension Plan become subject to funding deficiency (as defined in based benefit restrictions under Section 412 436 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the any Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section Sections 412 or 430 of the Code, Code or Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section Sections 412 or 430 of the Code or Section 302 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;
(iv) 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 Borrower or any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Sections 412 or 430 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) 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 any 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 any Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
Appears in 1 contract
Samples: Credit Agreement (Belk Inc)
ERISA. (i) Neither the Borrower nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans which are defined benefit plans or welfare plans providing post- retirement medical benefits, other than those identified on Schedule 5.1(h6.1(j);
(ii) The the Borrower and each ERISA Affiliate is in compliance in all material compliance respects with all applicable provisions of ERISA and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans except for any required amendments for 41 which the remedial amendment period as defined in Section 401(b) of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section election 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan;
(iv) Neither the Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code; (B) 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; (C) failed to make a required contribution or payment to a Multiemployer Plan; or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) No proceeding, claim, 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(i) of ERISA) currently maintained or contributed to by the Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
Appears in 1 contract
Samples: Term Loan Agreement (WLR Foods Inc)
ERISA. (i) 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 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) Neither the Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or, to the knowledge of the Borrower, is reasonably expected to occur; and
(vi) No proceeding, claim, lawsuit and/or investigation (other than routine claims for benefits in the ordinary course) 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)
Appears in 1 contract
ERISA. (i) Neither 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 5.1(h6.1(i). If requested by the Documentation Agent, the Borrower shall provide the Documentation Agent accurate and complete copies of all contracts, agreements and documents described on Schedule 6.1(i);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of ERISA and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans except where failure to comply would not result in a material liability to the Borrower and except for any required amendments for which the remedial amendment period as defined in Section 401(b) of the Code has not yet expired. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No material 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;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service 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 Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 of ERISA, nor has there 51 been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan, except where the occurrence of any such event will not have a Material Adverse Effect;
(iv) To the extent it could have a Material Adverse Effect, neither the Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code; (B) 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; (C) failed to make a required contribution or payment to a Multiemployer Plan; or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur which in either case could reasonably be expected to have a Material Adverse Effect; and
(vi) No material proceeding, claim, 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.
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ERISA. (i) Neither As of the Borrower Closing Date, neither the Borrowers nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(hSCHEDULE 7.1(i);
(ii) The Borrower the Borrowers and each ERISA Affiliate is are in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred by the Borrower Borrowers or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has have the Borrower Borrowers or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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;
(iv) Neither the Borrowers nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) No proceeding, claim, lawsuit and/or investigation is existing or, to the best knowledge of the Borrowers 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 Borrowers or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
Appears in 1 contract
ERISA. (i) Neither the Borrower nor any ERISA Affiliate maintains or contributes toto any Benefit Plan, Multiemployer Plan or has any obligation under, any Employee Benefit Plans Foreign Pension Plan other than those identified listed on Schedule 5.1(h);
(ii) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of ERISA and the regulations and published interpretations thereunder SCHEDULE 5.01-U hereto. Except with respect to all Employee Benefit new Plans except for any required amendments for which the remedial amendment period as defined in under Section 401(b) of the Internal Revenue Code has not yet expired. Each Employee Benefit , each Plan that which is intended to be qualified under Section 401(a) of the Internal Revenue Code as currently in effect has been determined by the Internal Revenue Service IRS to be so qualified, and each trust related to any such plan Plan has been determined to be exempt from federal income tax under Section 501(a) of the CodeInternal Revenue Code as currently in effect. No liability has been incurred by Except as disclosed in SCHEDULE 5.01-U, neither the Borrower nor any of its Subsidiaries maintains or contributes to any employee welfare benefit plan within the meaning of Section 3(1) of ERISA Affiliate which remains unsatisfied for any taxes or penalties provides benefits to employees after termination of employment other than as required by Section 601 of ERISA. The Borrower and all its Subsidiaries are in compliance in all material respects with the responsibilities, obligations and duties imposed on them by ERISA, the Internal Revenue Code and regulations promulgated thereunder with respect to any Employee all Plans. No Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has incurred any accumulated funding deficiency (as defined in Section 412 Sections 302(a)(2) of ERISA and 412(a) of the Internal Revenue Code) been incurred whether or not waived. Neither the Borrower nor any of its Subsidiaries nor any fiduciary of any Plan which is not a Multiemployer Plan (without regard i) has engaged in a nonexempt prohibited transaction described in Sections 406 of ERISA or 4975 of the Internal Revenue Code or (ii) has taken or failed to take any action which would constitute or result in a Termination Event. Neither the Borrower nor any ERISA Affiliate is subject to any waiver granted liability under Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA. Neither the Borrower nor any ERISA Affiliate has incurred any liability to the PBGC which remains outstanding other than the payment of premiums, and there are no premium payments which have become due which are unpaid. Schedule B to the most recent annual report filed with the IRS with respect to each Benefit Plan and furnished to the Lender is complete and accurate. Since the date of each such Schedule B, there has been no material adverse change in the funding status or financial condition of the Benefit Plan relating to such Schedule B. Neither the Borrower nor any ERISA Affiliate has (x) failed to make a required contribution or payment to a Multiemployer Plan or (y) made a complete or partial withdrawal under Sections 4203 or 4205 of ERISA from a Multiemployer Plan. Neither the Borrower nor any ERISA Affiliate has failed to make a required installment or any other required payment under Section 412 of the Code), Internal Revenue Code on or before the due date for such installment or other payment. Neither the Borrower nor has any funding waiver from ERISA Affiliate is required to provide security to a Benefit Plan under Section 401(a)(29) of the Internal Revenue Service been received or requested with respect Code due to a Plan amendment that results in an increase in current liability for the plan year. Except as disclosed on SCHEDULE 5.01-U, neither the Borrower nor any of its Subsidiaries has, by reason of the transactions contemplated hereby, any obligation to make any payment to any Pension Plan, nor employee pursuant to any Plan or existing contract or arrangement. The Borrower has given to the Lender copies of all of the following: each Benefit Plan and related trust agreement (including all amendments to such Plan and trust) in existence or committed to as of the Amendment and Restatement Effective Date and in respect of which the Borrower or any ERISA Affiliate failed is currently an "employer" as defined in section 3(5) of ERISA, and the most recent summary plan description, actuarial report, determination letter issued by the IRS and Form 5500 filed in respect of each such Benefit Plan in existence; a listing of all of the Multiemployer Plans currently contributed to make by the Borrower or any ERISA Affiliate with the aggregate amount of the most recent annual contributions required to be made by the Borrower and all ERISA Affiliates to each such Multiemployer Plan, any information which has been provided to the Borrower or an ERISA Affiliate regarding withdrawal liability under any Multiemployer Plan and the collective bargaining agreement pursuant to pay which such contribution is required to be made; and as to each employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees of the Borrower or any amounts due and owing of its Subsidiaries after termination of employment other than as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 601 of ERISA, nor has there been any event requiring any disclosure the most recent summary plan description for such plan and the aggregate amount of the most recent annual payments made to terminated employees under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan;each such plan.
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ERISA. (i) Neither As of the Closing Date, no Borrower nor or any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h7.1(i);
(ii) The Each Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of ERISA 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 expiredexpired 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 Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the CodeCode 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 any Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer PlanPlan except for a liability that could not reasonably be expected to have a Material Adverse Effect;
(iii) No Pension Plan As of the Borrower has been terminatedClosing Date, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated Pension Plan become subject to funding deficiency (as defined in based benefit restrictions under Section 412 436 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has the any Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Section Sections 412 or 430 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section Sections 412 or 430 of the Code or Section 302 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;
(iv) 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 Borrower or any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B) 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, (C) failed to make a required contribution or payment to a Multiemployer Plan, or (D) failed to make a required installment or other required payment under Sections 412 or 430 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) 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 any 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 any Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
Appears in 1 contract
Samples: Credit Agreement (Belk Inc)
ERISA. Borrower shall not: (ia) Neither engage in or permit any transaction which could result in a “prohibited transaction” (as such term is defined in Section 406 of ERISA) or in the imposition of an excise tax pursuant to Section 4975 of the Code with respect to any Borrower Benefit Plan; (b) engage in or permit any transaction or other event which could result in a “reportable event” (as such term is defined in Section 4043 of ERISA) for any Borrower Pension Plan; (c) fail to make full payment when due of all amounts which, under the provisions of any Borrower Benefit Plan, Borrower is required to pay as contributions thereto; (d) the determination that any Borrower Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Internal Revenue Code or Sections 303, 304 and 305 of ERISA ; (e) fail to make any payments to any Multiemployer Plan that Borrower may be required to make under any agreement relating to such Multiemployer Plan or any law pertaining thereto; (f) terminate any Borrower Pension Plan in a manner which could result in the imposition of a lien on any property of Borrower pursuant to Section 4068 of ERISA. Borrower shall not terminate any Borrower Pension Plan so as to result in any liability to the PBGC; (g) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower nor or any ERISA Affiliate maintains or contributes to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 5.1(h);
(iih) The Borrower and each ERISA Affiliate is in material compliance with all applicable provisions of 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. Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code. No liability has been incurred a failure by the Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties with to meet all applicable requirements under the Pension Funding Rules in respect to any Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan of the a Borrower has been terminated, and to the knowledge of the Borrower no Pension Plan of any ERISA Affiliate has been terminated, nor has any accumulated funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested with respect to any Pension Plan, nor has whether or not waived, or the failure by the Borrower or any ERISA Affiliate failed to make any contributions or required contribution to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan prior to the due dates of such contributions under Section 412 of the Code or Section 302 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 a Multiemployer Plan;.
Appears in 1 contract
Samples: Credit Agreement (CHS Inc)