Common use of ESOP Clause in Contracts

ESOP. (a) As of the Closing Date and at all times thereafter, the ESOP has been in compliance in all material respects with applicable provisions of ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder, and the ESOT has been duly organized and is a validly existing trust. Except as set forth on Schedule 4.29(a), each of the ESOP Plan Documents is in full force and effect and no term or condition thereof has been amended, modified or waived from the terms and conditions contained in the ESOP Plan Documents delivered to Administrative Agent without the consent of the Requisite Lenders (which consent shall not be unreasonably withheld), except to the extent such amendment, modification or waiver could not reasonably be anticipated to have a Material Adverse Effect. As of the Closing Date and at all times thereafter, the ESOT has performed and complied with all the material terms, provisions, agreements and conditions set forth therein and required to be performed or complied with by the ESOT, and no unmatured default, default or breach of any covenant by any such party exists thereunder. (b) As of the Closing Date and at all times thereafter, the execution, delivery and performance of each of the ESOP Plan Documents to which the ESOT is a party do not (i) conflict with the ESOP Plan Documents, (ii) conflict with any requirement of law, or (iii) other than with respect to ordinary course ESOP operations, require a registration with, consent or approval of, or notices to, or other action to, with or by any Governmental Authority. (c) As of the Closing Date and at all times thereafter, none of the assets of Borrower constitute, for any purpose of ERISA or Section 4975 of the Internal Revenue Code, assets of the ESOP or any other “plan” as defined in Section 3(3) of ERISA or Section 4975 of the Internal Revenue Code. (d) As of the Closing Date and at all times thereafter, no non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue Code has occurred with respect to the ESOP, and no Loan hereunder constitutes or shall constitute or give rise to any such non-exempt prohibited transaction. (e) The ESOP is qualified under Section 401(a) of the Internal Revenue Code, and the ESOP includes two components, one of which is a stock bonus plan that constitutes an employee stock ownership plan as defined in Section 4975(e)(7) of the Internal Revenue Code, and the other is a profit sharing plan that includes a cash or deferred arrangement under Section 401(k) of the Internal Revenue Code. (f) Borrower has provided Administrative Agent with a complete and true copy of each of the ESOP Plan Documents pursuant to which the ESOP and the ESOT are maintained by Borrower, or which concern Borrower’s obligations with respect to the ESOP and ESOT, as of the Closing Date and has not subsequently amended or in any other way modified or replaced such ESOP Plan Documents in any manner without the prior written consent of the Requisite Lenders, except for any amendment, modification or waiver that could not reasonably be anticipated to have a Material Adverse Effect (and Borrower shall use its best efforts to deliver a copy of any such amendment, modification or replacement to Administrative Agent prior to the execution thereof). (g) To Borrower’s knowledge, no Loan hereunder is (for any purpose of Section 406 of ERISA or Section 4975 of the Internal Revenue Code) a direct or indirect loan or other transaction between Administrative Agent or any of the Lenders and the ESOT which, if it is assumed that Administrative Agent and the Lenders are “parties in interest” and “disqualified persons” (as defined in Section 3(14) of ERISA and Section 4975 of the Internal Revenue Code, respectively), is a non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue Code. (h) Neither Borrower nor any of its Subsidiaries is or shall be subject to the tax imposed by Section 4978 of the Internal Revenue Code with respect to any “disposition” by the ESOT of any shares of Equity Interests of Borrower. (i) To Borrower’s knowledge, there is no investigation or review by any Governmental Agency, or action, suit, proceeding or arbitration, pending or concluded, concerning any matter with respect to the ESOP or the ESOT relevant as to whether any representation set forth herein was, or has or will at any time become, inaccurate or breached or, if it were to be made at any time prior to the satisfaction of all Obligations, would be inaccurate when made (other than in respect of (i) periodic requests to the Internal Revenue Service to issue a favorable determination letter to the effect that the ESOP is and continues to be a qualified plan and an employee stock ownership plan, (ii) Annual Reports (IRS Form 5500 Series) for the ESOP and (iii) routine claims for ESOP benefits), and neither the ESOP Fiduciary nor the ESOT Trustee has made any assertion with respect to the ESOP or the ESOT contrary to or inconsistent with the accuracy of any such representation which assertion could reasonably be expected to have a Material Adverse Effect. (j) As of the Closing Date, the ESOP has not incurred any Indebtedness (including any guarantee of Indebtedness of any other Person), other than its obligations under the ESOP Plan Documents to the extent constituting Indebtedness, including the outstanding PTE 80-26 loans set forth on Schedule 4.29(j).

ESOP. (a) As of the Closing Date and and, to the best of Borrower’s knowledge at all times thereafter, the ESOP has been in compliance in all material respects with applicable provisions of ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder, and the ESOT has been duly organized and is a validly existing trust. Except as set forth on Schedule 4.29(a)3.23, each of the ESOP Plan Documents is in full force and effect and no term or condition thereof has been amended, modified or waived from the terms and conditions contained in the ESOP Plan Documents delivered to the Administrative Agent without the consent of the Requisite Lenders Administrative Agent (which consent shall not be unreasonably withheld), except to the extent such amendment, modification or waiver could not reasonably be anticipated to have a material adverse effect upon the Administrative Agent or any of the Lenders or otherwise have a Material Adverse Effect. As of the Closing Date and and, to the best of Borrower’s knowledge at all times thereafter, the ESOT has performed and complied with all the material terms, provisions, agreements and conditions set forth therein and required to be performed or complied with by the ESOT, and no unmatured default, default or breach of any covenant by any such party exists thereunder. (b) As of the Closing Date and and, to the best of the Borrower’s knowledge at all times thereafter, the execution, delivery and performance of each of the ESOP Plan Documents to which the ESOT is a party do not (i) conflict with the ESOP Plan Documents, (ii) conflict with any requirement of law, or (iii) other than with respect to ordinary course ESOP operations, require a registration with, consent or approval of, or notices to, or other action to, with or by any Governmental Authority. (c) As of the Closing Date and and, to the best of the Borrower’s knowledge, at all times thereafter, none of the assets of the Borrower constitute, for any purpose of ERISA or Section 4975 of the Internal Revenue Code, assets of the ESOP or any other “plan” as defined in Section 3(3) of ERISA or Section 4975 of the Internal Revenue Code. (d) As of the Closing Date and and, to the best of the Borrower’s knowledge, at all times thereafter, no non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue Code has occurred with respect to the ESOP, and no Loan hereunder constitutes or shall constitute or give rise to any such non-exempt prohibited transaction. (e) The ESOP is qualified under Section 401(a) of the Internal Revenue Code, and the ESOP includes two components, one of which is a stock bonus plan that constitutes an employee stock ownership plan as defined in Section 4975(e)(7) of the Internal Revenue Code, and the other is a profit sharing plan that includes a cash or deferred arrangement under Section 401(k) of the Internal Revenue Code. (f) The Borrower has provided the Administrative Agent with a complete and true copy of each of the ESOP Plan Documents pursuant to which the ESOP and the ESOT are maintained by the Borrower, or which concern the Borrower’s obligations with respect to the ESOP and ESOT, as of the Closing Date and has not subsequently amended or in any other way modified or replaced such ESOP Plan Documents in any material manner without the prior written consent of the Requisite LendersAdministrative Agent, except for any amendment, modification or waiver that could not reasonably be anticipated to have a Material Adverse Effect replacement required by the IRS or by applicable law (and the Borrower shall use its best efforts to deliver a copy of any such amendment, modification or replacement to the Administrative Agent prior to the execution thereof). (g) To the Borrower’s knowledge, no Loan hereunder is (for any purpose of Section 406 of ERISA or Section 4975 of the Internal Revenue Code) a direct or indirect loan or other transaction between the Administrative Agent or any of the Lenders and the ESOT which, if it is assumed that the Administrative Agent and the Lenders are “parties in interest” and “disqualified persons” (as defined in Section 3(14) of ERISA and Section 4975 of the Internal Revenue Code, respectively), is a non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue Code. (h) Neither the Borrower nor any of its Subsidiaries is or shall be subject to the tax imposed by Section 4978 of the Internal Revenue Code with respect to any “disposition” by the ESOT of any shares of Equity Interests of the Borrower. (i) To the Borrower’s knowledge, there is no investigation or review by any Governmental Agency, or action, suit, proceeding or arbitration, pending or concluded, concerning any matter with respect to the ESOP or the ESOT relevant as to whether any representation set forth herein was, or has or will at any time become, inaccurate or breached or, if it were to be made at any time prior to the satisfaction of all Obligations, would be inaccurate when made (other than in respect of (i) periodic requests to the Internal Revenue Service IRS to issue a favorable determination letter to the effect that the ESOP is and continues to be a qualified plan and an employee stock ownership plan, (ii) Annual Reports (IRS Form 5500 Series) for the ESOP and (iii) routine claims for ESOP benefits), and neither the ESOP Fiduciary nor nor, to the best of the Borrower’s knowledge, the ESOT Trustee has made any assertion with respect to the ESOP or the ESOT contrary to or inconsistent with the accuracy of any such representation which assertion could reasonably be expected to have a Material Adverse Effect. (j) As of the Closing Date, the ESOP has not incurred any Indebtedness (including any guarantee of Indebtedness of any other Person), other than its obligations under the ESOP Plan Documents to the extent constituting Indebtedness, including the outstanding PTE 80-26 loans set forth on Schedule 4.29(j).

ESOP. (a) As of the Closing Date and and, to the Borrower’s knowledge at all times thereafter, the ESOP has been in compliance in all material respects with applicable provisions of ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder, and the ESOT has been duly organized and is a validly existing trust. Except as set forth on Schedule 4.29(a)4.29, each of the ESOP Plan Documents is in full force and effect and no term or condition thereof has been amended, modified or waived from the terms and conditions contained in the ESOP Plan Documents delivered to Administrative Agent without the consent of the Requisite Lenders Agent (which consent shall not be unreasonably withheld), except to the extent such amendment, modification or waiver could not reasonably be anticipated to have a material adverse effect upon the Agent or any of the Lenders or otherwise have a Material Adverse Effect. As of the Closing Date and and, to the Borrower’s knowledge at all times thereafter, the ESOT has performed and complied with all the material terms, provisions, agreements and conditions set forth therein and required to be performed or complied with by the ESOT, and no unmatured default, default or breach of any covenant by any such party exists thereunder. (b) As of the Closing Date and and, to the Borrower’s knowledge at all times thereafter, the execution, delivery and performance of each of the ESOP Plan Documents to which the ESOT is a party do not (i) conflict with the ESOP Plan Documents, (ii) conflict with any requirement of law, or (iii) other than with respect to ordinary course ESOP operations, require a registration with, consent or approval of, or notices to, or other action to, with or by any Governmental Authority. (c) As of the Closing Date and and, to the Borrower’s knowledge, at all times thereafter, none of the assets of the Borrower constitute, for any purpose of ERISA or Section 4975 of the Internal Revenue CodeIRC, assets of the ESOP or any other “plan” as defined in Section 3(3) of ERISA or Section 4975 of the Internal Revenue CodeIRC. (d) As of the Closing Date and and, to the Borrower’s knowledge, at all times thereafter, no non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue Code IRC has occurred with respect to the ESOP, and no Loan hereunder constitutes or shall constitute or give rise to any such non-exempt prohibited transaction. (e) The ESOP is qualified under Section 401(a) of the Internal Revenue CodeIRC, and the ESOP includes two components, one of which is a stock bonus plan that constitutes an employee stock ownership plan as defined in Section 4975(e)(7) of the Internal Revenue CodeIRC, and the other is a profit sharing plan that includes a cash or deferred arrangement under Section 401(k) of the Internal Revenue CodeIRC. (f) Borrower has provided Administrative Agent with a complete and true copy of each of the ESOP Plan Documents pursuant to which the ESOP and the ESOT are maintained by Borrower, or which concern Borrower’s obligations with respect to the ESOP and ESOT, as of the Closing Date and Borrower has not subsequently amended or in any other way modified or replaced such ESOP Plan Documents in any manner material respect without the prior written consent of the Requisite LendersAgent, except for any amendment, modification or waiver that could not reasonably be anticipated to have a Material Adverse Effect replacement required by the Internal Revenue Service or by applicable law (and Borrower shall use its best efforts to deliver a copy of any such amendment, modification or replacement to Administrative Agent prior to the execution thereof). (g) To Borrower’s knowledge, no Loan hereunder is (for any purpose of Section 406 of ERISA or Section 4975 of the Internal Revenue CodeIRC) a direct or indirect loan or other transaction between Administrative Agent or any of the Lenders and the ESOT which, if it is assumed that Administrative Agent and the Lenders are “parties in interest” and “disqualified persons” (as defined in Section 3(14) of ERISA and Section 4975 of the Internal Revenue CodeIRC, respectively), is a non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue CodeIRC. (h) Neither the Borrower nor any of its Subsidiaries is or shall be subject to the tax imposed by Section 4978 of the Internal Revenue Code IRC with respect to any “disposition” by the ESOT of any shares of Equity Interests of the Borrower. (i) To Borrower’s knowledge, there is no investigation or review by any Governmental Agency, or action, suit, proceeding or arbitration, pending or concluded, concerning any matter with respect to the ESOP or the ESOT relevant as to whether any representation set forth herein was, or has or will at any time become, inaccurate or breached or, if it were to be made at any time prior to the satisfaction of all Obligations, would be inaccurate when made (other than in respect of (i) periodic requests to the Internal Revenue Service to issue a favorable determination letter to the effect that the ESOP is and continues to be a qualified plan and an employee stock ownership plan, (ii) Annual Reports (IRS Internal Revenue Service Form 5500 Series) for the ESOP and (iii) routine claims for ESOP benefits), and neither the ESOP Fiduciary nor nor, to the Borrower’s knowledge, the ESOT Trustee has made any assertion with respect to the ESOP or the ESOT contrary to or inconsistent with the accuracy of any such representation which assertion could reasonably be expected to have a Material Adverse Effect. (j) As of the Closing Date, the ESOP has not incurred any Indebtedness (including any guarantee of Indebtedness of any other Person), other than its obligations under the ESOP Plan Documents to the extent constituting Indebtedness, including the outstanding PTE 80-26 loans set forth on Schedule 4.29(j).

ESOP. (a) As of the Closing Date and and, to the best of Borrower’s knowledge at all times thereafter, the ESOP has been in compliance in all material respects with applicable provisions of ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder, and the ESOT has been duly organized and is a validly existing trust. Except as set forth on Schedule 4.29(a)3.22, each of the ESOP Plan Documents is in full force and effect and no term or condition thereof has been amended, modified or waived from the terms and conditions contained in the ESOP Plan Documents delivered to the Administrative Agent without the consent of the Requisite Lenders Administrative Agent (which consent shall not be unreasonably withheld), except to the extent such amendment, modification or waiver could not reasonably be anticipated to have a material adverse effect upon the Administrative Agent or any of the Lenders or otherwise have a Material Adverse Effect. As of the Closing Date and and, to the best of Borrower’s knowledge at all times thereafter, the ESOT has performed and complied with all the material terms, provisions, agreements and conditions set forth therein and required to be performed or complied with by the ESOT, and no unmatured default, default or breach of any covenant by any such party exists thereunder. (b) As of the Closing Date and and, to the best of the Borrower’s knowledge at all times thereafter, the execution, delivery and performance of each of the ESOP Plan Documents to which the ESOT is a party do not (i) conflict with the ESOP Plan Documents, (ii) conflict with any requirement of law, or (iii) other than with respect to ordinary course ESOP operations, require a registration with, consent or approval of, or notices to, or other action to, with or by any Governmental Authority. (c) As of the Closing Date and and, to the best of the Borrower’s knowledge, at all times thereafter, none of the assets of the Borrower constitute, for any purpose of ERISA or Section 4975 of the Internal Revenue Code, assets of the ESOP or any other “plan” as defined in Section 3(3) of ERISA or Section 4975 of the Internal Revenue Code. (d) As of the Closing Date and and, to the best of the Borrower’s knowledge, at all times thereafter, no non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue Code has occurred with respect to the ESOP, and no Loan hereunder constitutes or shall constitute or give rise to any such non-exempt prohibited transaction. (e) The ESOP is qualified under Section 401(a) of the Internal Revenue Code, and the ESOP includes two components, one of which is a stock bonus plan that constitutes an employee stock ownership plan as defined in Section 4975(e)(7) of the Internal Revenue Code, and the other is a profit sharing plan that includes a cash or deferred arrangement under Section 401(k) of the Internal Revenue Code. (f) The Borrower has provided the Administrative Agent with a complete and true copy of each of the ESOP Plan Documents pursuant to which the ESOP and the ESOT are maintained by the Borrower, or which concern the Borrower’s obligations with respect to the ESOP and ESOT, as of the Closing Date and has not subsequently amended or in any other way modified or replaced such ESOP Plan Documents in any material manner without the prior written consent of the Requisite LendersAdministrative Agent, except for any amendment, modification or waiver that could not reasonably be anticipated to have a Material Adverse Effect replacement required by the Internal Revenue Service or by applicable law (and the Borrower shall use its best efforts to deliver a copy of any such amendment, modification or replacement to the Administrative Agent prior to the execution thereof). (g) To the Borrower’s knowledge, no Loan hereunder is (for any purpose of Section 406 of ERISA or Section 4975 of the Internal Revenue Code) a direct or indirect loan or other transaction between the Administrative Agent or any of the Lenders and the ESOT which, if it is assumed that the Administrative Agent and the Lenders are “parties in interest” and “disqualified persons” (as defined in Section 3(14) of ERISA and Section 4975 of the Internal Revenue Code, respectively), is a non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue Code. (h) Neither the Borrower nor any of its Subsidiaries is or shall be subject to the tax imposed by Section 4978 of the Internal Revenue Code with respect to any “disposition” by the ESOT of any shares of Equity Interests of the Borrower. (i) To the Borrower’s knowledge, there is no investigation or review by any Governmental AgencyAuthority, or action, suit, proceeding or arbitration, pending or concluded, concerning any matter with respect to the ESOP or the ESOT relevant as to whether any representation set forth herein was, or has or will at any time become, inaccurate or breached or, if it were to be made at any time prior to the satisfaction of all Obligations, would be inaccurate when made (other than in respect of (i) periodic requests to the Internal Revenue Service IRS to issue a favorable determination letter to the effect that the ESOP is and continues to be a qualified plan and an employee stock ownership plan, (ii) Annual Reports (IRS Form 5500 Series) for the ESOP and (iii) routine claims for ESOP benefits), and neither the ESOP Fiduciary nor nor, to the best of the Borrower’s knowledge, the ESOT Trustee has made any assertion with respect to the ESOP or the ESOT contrary to or inconsistent with the accuracy of any such representation which assertion could reasonably be expected to have a Material Adverse Effect. (j) As of the Closing Date, the ESOP has not incurred any Indebtedness (including any guarantee of Indebtedness of any other Person), other than its obligations under the ESOP Plan Documents to the extent constituting Indebtedness, including the outstanding PTE 80-26 loans set forth on Schedule 4.29(j).

ESOP. (ai) As of the Closing Date The ESOP has been operated and administered at all times thereafter, the ESOP has been in compliance in all material respects with its terms and with the provisions of applicable Law, including applicable provisions of ERISA and the Internal Revenue Code and Code. Since its inception, the regulations and published interpretations thereunder, and the ESOT ESOP has been duly organized and is a validly existing trust. Except as set forth on Schedule 4.29(a), each of the ESOP Plan Documents is in full force and effect and no term or condition thereof has been amended, modified or waived from the terms and conditions contained in the ESOP Plan Documents delivered to Administrative Agent without the consent of the Requisite Lenders (which consent shall not be unreasonably withheld), except to the extent such amendment, modification or waiver could not reasonably be anticipated to have a Material Adverse Effect. As of the Closing Date and at all times thereafter, the ESOT has performed and complied with all the material terms, provisions, agreements and conditions set forth therein and required intended to be performed or complied with by the ESOT, and no unmatured default, default or breach of any covenant by any such party exists thereunder. (b) As of the Closing Date and at all times thereafter, the execution, delivery and performance of each of the ESOP Plan Documents to which the ESOT is a party do not (i) conflict with the ESOP Plan Documents, (ii) conflict with any requirement of law, or (iii) other than with respect to ordinary course ESOP operations, require a registration with, consent or approval of, or notices to, or other action to, with or by any Governmental Authority. (c) As of the Closing Date and at all times thereafter, none of the assets of Borrower constitute, for any purpose of ERISA or Section 4975 of the Internal Revenue Code, assets of the ESOP or any other “plan” as defined in Section 3(3) of ERISA or Section 4975 of the Internal Revenue Code. (d) As of the Closing Date and at all times thereafter, no non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue Code has occurred with respect to the ESOP, and no Loan hereunder constitutes or shall constitute or give rise to any such non-exempt prohibited transaction. (e) The ESOP is qualified under Section 401(a) of the Internal Revenue Code and is intended to be exempt from tax under Section 501(a) of the Code, and the ESOP includes two componentshas intended to be qualified as a valid “employee stock ownership plan” (within the meaning of sections 409 and 4975(e)(7) of the Code) and to the Knowledge of the Company, one there has been no act or omission that would reasonably be expected to adversely affect the tax-qualified status of which is a stock bonus plan that constitutes the ESOP, the tax-exempt status of the trust under the ESOP or the validity of the ESOP as an employee stock ownership plan (within the meaning of sections 409 and 4975(e)(7) of the Code). Except as set forth in Section 4.11(b) of the Company Disclosure Schedule, the ESOP plan document has been timely amended and a restated plan document was adopted by the Company on March 27, 2009. (ii) Except as set forth in Section 4.11(n)(ii) of the Company Disclosure Schedule, (a) there are no loans or other extensions of credit between the ESOP and any other Person; (b) there are no Shares held in the ESOP that have not been allocated to the accounts of participants or beneficiaries of the ESOP; and (c) all contributions to the ESOP due with respect to periods ending on or prior to the Closing have been timely made and all such contributions that are not yet due shall have been made prior to the Closing. (iii) As promptly as practicable following execution of this Agreement, the ESOP will be amended so that during the pendency of the transactions contemplated by this Agreement, and continuing through and subsequent to Closing, should it occur, the Trustee shall be fully independent of any direction and empowered to act as a discretionary and independent Trustee with sole authority, power, and responsibility, subject to ERISA, to determine whether the ESOP will participate in the transactions contemplated by this Agreement, to represent the participants and beneficiaries of the ESOP in all respects, and to determine and conduct the procedure whereby any voting rights with respect to Shares held by the ESOP are required to be passed through to participants in or beneficiaries or alternate payees of the ESOP with regard to the transactions contemplated by this Agreement. On or prior to the date hereof, the Trustee has obtained from Empire Valuation Consultants, LLC (“ESOP Advisor”), an “independent appraiser” (within the meaning of section 401(a)(28)(C) of the Code), an oral statement directed solely to the Trustee stating that, based upon information and analysis received by the ESOP Advisor as of September 13, 2010, as of the date hereof, it is anticipated that (i) the Per Share Closing Payment Consideration to be paid to the ESOP in connection with the transactions contemplated by this Agreement is at least equal to fair market value (as such term is used for adequate consideration purposes as defined in Section 4975(e)(73(18)(B) of ERISA and the proposed regulations thereunder) of the Internal Revenue CodeShares owned by the ESOP; and (ii) that the terms of the transactions contemplated by this Agreement as a whole are fair and reasonable to the ESOP (and its participants and beneficiaries) from a financial point of view (the “Preliminary Fairness Opinion”). On or prior to the date hereof, the Trustee has advised Parent of Trustee’s receipt of the Preliminary Fairness Opinion. Prior to the date of the Shareholders’ Meeting, the Trustee has obtained from the ESOP Advisor an opinion (the “Fairness Opinion”) directed solely to the Trustee and on which the Trustee shall be entitled to rely, stating that based upon information and analysis received by the ESOP Advisor as of a specified date reasonably proximate to the date of such Shareholders’ Meeting, (i) the Per Share Closing Payment Consideration to be paid to the ESOP in connection with the transactions contemplated by this Agreement is at least equal to the fair market value (as such term is used for adequate consideration purposes as defined in Section 3(18)(B) of ERISA and the proposed regulations thereunder) of the Shares owned by the ESOP; and (ii) that the terms of the transactions contemplated by this Agreement as a whole are fair and reasonable to the ESOP (and its participants and beneficiaries) from a financial point of view. A true and complete copy of the Fairness Opinion and the opinion described in Section 8.1(d) (if any) shall be promptly provided to Parent. Prior to the date hereof, the Trustee has advised the Company that the Trustee intends to recommend to the ESOP participants in the Proxy Statement that such participants direct the Trustee with respect to the Shares allocated to their respective accounts under the ESOP to vote in favor of the Agreement and the transactions contemplated herein. (iv) (A) The ESOP’s conversion of Shares pursuant to this Agreement into the right to receive, and the ESOP’s receipt of, Per Share Merger Consideration (I) will not result in a violation of ERISA, the Code, or any other is Law applicable to the ESOP, including, a profit sharing plan that includes a cash violation of section 406 or deferred arrangement under Section 401(k) section 407 of ERISA or section 4975 of the Internal Revenue Code. , (fII) Borrower has provided Administrative Agent with will not result in a complete and true copy violation of each of the ESOP Plan Documents pursuant any agreement to which the ESOP is a party or is otherwise bound, and (III) will not result in the ESOT are maintained by Borrowerimposition of any excise Tax on any Person, including, any excise Tax under section 4975 or which concern Borrower’s obligations section 4978 of the Code, and (B) in accordance with the terms of the ESOP documents and applicable Law, voting rights with respect to Shares held by the ESOP and ESOT, as are required to be passed through to participants in or beneficiaries or alternate payees of the Closing Date and has not subsequently amended or in any other way modified or replaced such ESOP Plan Documents in any manner without the prior written consent with regard to approval of the Requisite Lenders, except for any amendment, modification or waiver that could not reasonably be anticipated to have a Material Adverse Effect (and Borrower shall use its best efforts to deliver a copy of any such amendment, modification or replacement to Administrative Agent prior to the execution thereof)Merger. (gv) To Borrower’s knowledgeThere is no investigation, no Loan hereunder is (for any purpose of Section 406 of ERISA audit or Section 4975 Proceeding pending or, to the Knowledge of the Internal Revenue Code) a direct or indirect loan or other transaction between Administrative Agent or any of the Lenders and the ESOT whichCompany, if it is assumed that Administrative Agent and the Lenders are “parties in interest” and “disqualified persons” (as defined in Section 3(14) of ERISA and Section 4975 of the Internal Revenue Code, respectively), is a non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue Code. (h) Neither Borrower nor any of its Subsidiaries is or shall be subject to the tax imposed by Section 4978 of the Internal Revenue Code with respect to any “disposition” by the ESOT of any shares of Equity Interests of Borrower. (i) To Borrower’s knowledge, there is no investigation or review by any Governmental Agency, or action, suit, proceeding or arbitration, pending or concludedthreatened, concerning any matter with respect to the ESOP or the ESOT relevant as to whether any representation set forth herein in this Section 4.11(n) was, or has or will at any time become, become inaccurate or breached or, if it were to be made at any time prior to the satisfaction of all Obligations, would be inaccurate when made (other than in respect of (iA) periodic timely requests to the Internal Revenue Service to issue a favorable determination letter to the effect that the ESOP is and continues to be a tax-qualified plan under section 401(a) of the Code and an employee stock ownership plan, plan and that the trust under the ESOP continues to be a tax-exempt trust under section 501(a) of the Code and (iiB) Annual Reports (IRS Form 5500 Series) for the ESOP and (iii) routine claims for ESOP benefitsseries), and neither no Trustee or other fiduciary of the ESOP Fiduciary nor the ESOT Trustee has made any assertion with respect to the ESOP or the ESOT contrary to to, or inconsistent with the accuracy of of, any such representation which assertion could reasonably be expected to have a Material Adverse Effectrepresentation. (j) As of the Closing Date, the ESOP has not incurred any Indebtedness (including any guarantee of Indebtedness of any other Person), other than its obligations under the ESOP Plan Documents to the extent constituting Indebtedness, including the outstanding PTE 80-26 loans set forth on Schedule 4.29(j).

ESOP. With respect to the ESOP: (ai) As of the Closing Date take all necessary actions to preserve and at all times thereafter, keep the ESOP has been in compliance effect and comply in all material respects with applicable provisions of ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder, and the ESOT has been duly organized and is a validly existing trust. Except as set forth on Schedule 4.29(a), each terms of the ESOP Plan Documents is in full force and effect and no term or condition thereof has been amended, modified or waived from the terms and conditions contained in the ESOP Plan Documents delivered Loan; (ii) comply in all material respects with the Code and ERISA as applicable to Administrative Agent without the consent ESOP and with all other laws and regulations applicable thereto, (iii) furnish to the Lender as soon as practicable, copies of the Requisite Lenders ERISA annual reports, IRS determination letter, notices, financial statements and repurchase liability studies; (which consent shall not be unreasonably withheld)iv) permit the Lender to examine the books, except records and other documents relating to the extent such amendment, modification or waiver could not reasonably be anticipated to have a Material Adverse Effect. As of the Closing Date properties and at all times thereafter, the ESOT has performed and complied with all the material terms, provisions, agreements and conditions set forth therein and required to be performed or complied with by the ESOT, and no unmatured default, default or breach of any covenant by any such party exists thereunder. (b) As of the Closing Date and at all times thereafter, the execution, delivery and performance of each affairs of the ESOP Plan Documents in the possession of Borrower which it has authority to which disclose and to make memoranda and extracts from such books, records and other documents, and discuss with any representative of the ESOT is a party do not Lender the affairs, finances and accounts of the ESOP; (iv) conflict with take all necessary actions to cause and permit the ESOP Plan Documents, (ii) conflict with any requirement of law, or (iii) other than with respect to ordinary course ESOP operations, require a registration with, consent or approval of, or notices to, or other action to, with or by any Governmental Authority. (c) As of pay and discharge from the Closing Date and at all times thereafter, none of the assets of Borrower constitute, for any purpose of ERISA or Section 4975 of the Internal Revenue Code, assets of the ESOP all taxes, fees, assessments and governmental charges or any other “plan” as defined in Section 3(3) of ERISA or Section 4975 of the Internal Revenue Code. (d) As of the Closing Date and at all times thereafter, no non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue Code has occurred with respect to levies imposed upon the ESOP, and no Loan hereunder constitutes or shall constitute upon the ESOP's income or give rise to profits or upon any such non-exempt prohibited transaction. (e) The ESOP is qualified under Section 401(a) of the Internal Revenue Code, and the ESOP includes two components, one of which is a stock bonus plan that constitutes an employee stock ownership plan as defined in Section 4975(e)(7) of the Internal Revenue Code, and the other is a profit sharing plan that includes a cash or deferred arrangement under Section 401(k) of the Internal Revenue Code. (f) Borrower has provided Administrative Agent with a complete and true copy of each property of the ESOP Plan Documents pursuant to which the ESOP and the ESOT are maintained by Borrower, or which concern Borrower’s obligations with respect to the ESOP and ESOT, as of the Closing Date and has not subsequently amended or in any other way modified or replaced such ESOP Plan Documents in any manner without the prior written consent of the Requisite Lenders, except for any amendment, modification or waiver that could not reasonably be anticipated to have a Material Adverse Effect (and Borrower shall use its best efforts to deliver a copy of any such amendment, modification or replacement to Administrative Agent prior to the execution thereof). (g) To Borrower’s knowledgedate on which penalties attach thereto, no Loan hereunder is (for any purpose of Section 406 of ERISA or Section 4975 of the Internal Revenue Code) a direct or indirect loan or other transaction between Administrative Agent or any of the Lenders and the ESOT pay all lawful claims which, if it is assumed that Administrative Agent and the Lenders are “parties unpaid, might become a Lien; (vi) promptly give notice in interest” and “disqualified persons” (as defined in Section 3(14) of ERISA and Section 4975 of the Internal Revenue Code, respectively), is a non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue Code. (h) Neither Borrower nor any of its Subsidiaries is or shall be subject writing to the tax imposed by Section 4978 of the Internal Revenue Code with respect to any “disposition” by the ESOT Lender of any shares of Equity Interests of Borrower. (i) To Borrower’s knowledge, there is no investigation or review by any Governmental Agency, or action, suit, proceeding or arbitration, pending or concluded, concerning any matter with respect late contribution to the ESOP or of any late filing of an annual report or other document required to be filed with a Governmental Agency or of any litigation involving the ESOT relevant as ESOP of which Borrower has knowledge and of any other matter of which Borrower has knowledge which has a substantial likelihood of materially adversely affecting the financial condition, affairs or operations of the ESOP or of Borrower, stating, to whether any representation set forth herein wasthe extent of Borrower's knowledge thereof, or has or will at any time becomethe nature thereof, inaccurate or breached orand the course of action proposed to be taken in connection therewith, if it were any; (vii) operate the ESOP to be made at any time prior to meet the satisfaction of all Obligations, would be inaccurate when made (other than in respect requirements of (iA) periodic requests Section 410(b) of the Code, relating to non-discrimination in participation, (B) Section 401(a)(4) of the Internal Revenue Service Code, relating to issue a favorable determination letter prohibited discrimination in favor of officers, shareholders or highly compensated employees, and (C) Section 401(a)(28) of the Code, relating to diversification of investments and use of an independent appraiser; (viii) in the effect event that the ESOP is amended and continues to be a such amendment could affect the tax qualified plan and status of the ESOP or its status as an employee stock ownership plan, (iitake all necessary actions to apply for and obtain a favorable determination letter from the IRS that the ESOP, as amended, is tax qualified and is an "employee stock ownership plan" within the meaning of Section 4975(e)(7) Annual Reports (IRS Form 5500 Series) for of the ESOP Code; and (iiiix) routine claims for ESOP benefits), and neither the ESOP Fiduciary nor the ESOT Trustee has made any assertion with respect Borrower will make contributions to the ESOP or sufficient to enable the ESOT contrary to or inconsistent with the accuracy of any such representation which assertion could reasonably be expected to have a Material Adverse Effect. (j) As trustee of the Closing Date, the ESOP has not incurred any Indebtedness (including any guarantee of Indebtedness of any other Person), other than its obligations to pay in a timely manner all scheduled principal and interest repayments due under the ESOP Plan Documents to the extent constituting Indebtedness, including the outstanding PTE 80-26 loans set forth on Schedule 4.29(j)Loan.

ESOP. (a) As of the Closing Date and and, to the best of Borrower’s knowledge at all times thereafter, the ESOP has been in compliance in all material respects with applicable provisions of ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder, and the ESOT has been duly organized and is a validly existing trust. Except as set forth on Schedule 4.29(a)3.24, each of the ESOP Plan Documents is in full force and effect and no term or condition thereof has been amended, modified or waived from the terms and conditions contained in the ESOP Plan Documents delivered to the Administrative Agent without the consent of the Requisite Lenders Administrative Agent (which consent shall not be unreasonably withheld), except to the extent such amendment, modification or waiver could not reasonably be anticipated to have a material adverse effect upon the Administrative Agent or any of the Lenders or otherwise have a Material Adverse Effect. As of the Closing Date and and, to the best of Borrower’s knowledge at all times thereafter, the ESOT has performed and complied with all the material terms, provisions, agreements and conditions set forth therein and required to be performed or complied with by the ESOT, and no unmatured default, default or breach of any covenant by any such party exists thereunder. (b) As of the Closing Date and and, to the best of the Borrower’s knowledge at all times thereafter, the execution, delivery and performance of each of the ESOP Plan Documents to which the ESOT is a party do not (i) conflict with the ESOP Plan Documents, (ii) conflict with any requirement of law, or (iii) other than with respect to ordinary course ESOP operations, require a registration with, consent or approval of, or notices to, or other action to, with or by any Governmental Authority. (c) As of the Closing Date and and, to the best of the Borrower’s knowledge, at all times thereafter, none of the assets of the Borrower constitute, for any purpose of ERISA or Section 4975 of the Internal Revenue Code, assets of the ESOP or any other “plan” as defined in Section 3(3) of ERISA or Section 4975 of the Internal Revenue Code. (d) As of the Closing Date and and, to the best of the Borrower’s knowledge, at all times thereafter, no non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue Code has occurred with respect to the ESOP, and no Loan hereunder constitutes or shall constitute or give rise to any such non-exempt prohibited transaction. (e) The ESOP is qualified under Section 401(a) of the Internal Revenue Code, and the ESOP includes two components, one of which is a stock bonus plan that constitutes an employee stock ownership plan as defined in Section 4975(e)(7) of the Internal Revenue Code, and the other is a profit sharing plan that includes a cash or deferred arrangement under Section 401(k) of the Internal Revenue Code. (f) The Borrower has provided the Administrative Agent with a complete and true copy of each of the ESOP Plan Documents pursuant to which the ESOP and the ESOT are maintained by the Borrower, or which concern the Borrower’s obligations with respect to the ESOP and ESOT, as of the Closing Date and has not subsequently amended or in any other way modified or replaced such ESOP Plan Documents in any material manner without the prior written consent of the Requisite LendersAdministrative Agent, except for any amendment, modification or waiver that could not reasonably be anticipated to have a Material Adverse Effect replacement required by the IRS or by applicable law (and the Borrower shall use its best efforts to deliver a copy of any such amendment, modification or replacement to the Administrative Agent prior to the execution thereof). (g) To the Borrower’s knowledge, no Loan hereunder is (for any purpose of Section 406 of ERISA or Section 4975 of the Internal Revenue Code) a direct or indirect loan or other transaction between the Administrative Agent or any of the Lenders and the ESOT which, if it is assumed that the Administrative Agent and the Lenders are “parties in interest” and “disqualified persons” (as defined in Section 3(14) of ERISA and Section 4975 of the Internal Revenue Code, respectively), is a non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue Code. (h) Neither the Borrower nor any of its Subsidiaries is or shall be subject to the tax imposed by Section 4978 of the Internal Revenue Code with respect to any “disposition” by the ESOT of any shares of Equity Interests of the Borrower. (i) To the Borrower’s knowledge, there is no investigation or review by any Governmental Agency, or action, suit, proceeding or arbitration, pending or concluded, concerning any matter with respect to the ESOP or the ESOT relevant as to whether any representation set forth herein was, or has or will at any time become, inaccurate or breached or, if it were to be made at any time prior to the satisfaction of all Obligations, would be inaccurate when made (other than in respect of (i) periodic requests to the Internal Revenue Service IRS to issue a favorable determination letter to the effect that the ESOP is and continues to be a qualified plan and an employee stock ownership plan, (ii) Annual Reports (IRS Form 5500 Series) for the ESOP and (iii) routine claims for ESOP benefits), and neither the ESOP Fiduciary nor nor, to the best of the Borrower’s knowledge, the ESOT Trustee has made any assertion with respect to the ESOP or the ESOT contrary to or inconsistent with the accuracy of any such representation which assertion could reasonably be expected to have a Material Adverse Effect. (j) As of the Closing Date, the ESOP has not incurred any Indebtedness (including any guarantee of Indebtedness of any other Person), other than its obligations under the ESOP Plan Documents to the extent constituting Indebtedness, including the outstanding PTE 80-26 loans set forth on Schedule 4.29(j).