Common use of Pension and Benefit Plans; ERISA Clause in Contracts

Pension and Benefit Plans; ERISA. (a) None of the Transferred Companies, their Subsidiaries or Project Entities is a party to, sponsors, participates in, contributes to or has any material liability or contingent liability with respect to: (i) any “employee welfare plan” or “employee pension benefit plan” (as those terms are respectively defined in Sections 3(1) and 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)); (ii) any retirement or deferred compensation plan, incentive compensation plan, stock plan, profit sharing, unemployment compensation plan, vacation pay, severance pay, post employment, supplemental employment or unemployment benefit plan or arrangement, bonus or benefit arrangement, insurance (including any self insurance) or hospitalization program or any other fringe or other benefit or compensation plans, programs or arrangements for any current or former employee, trustee, director, consultant or agent, whether pursuant to contract, arrangement, custom or informal understanding, or any “employee benefit plan” (as defined in Section 3(3) of ERISA) other than those referred to in (A) above; or (iii) any employment, severance, termination, consultancy or other similar agreement. (b) A true and correct copy of each of the plans, programs, arrangements, and agreements listed on Section 3.11 of the Company Disclosure Schedule (referred to hereinafter as “Company Employee Benefit Plans”) has been made available to Buyer. In the case of any Company Employee Benefit Plan that is not in written form, an accurate description of such Company Employee Benefit Plan as in effect on the date hereof has been made available to Buyer. A true and correct copy of the three most recent annual reports, and the most recent actuarial report, accountant’s opinion of the plan’s financial statements, summary plan description and Internal Revenue Service determination or opinion letter with respect to each Company Employee Benefit Plan, to the extent applicable, has been made available to Buyer, and there have been no material adverse changes in the financial condition of the respective plans from that stated in those annual reports and actuarial reports nor, to the Company’s Knowledge, have there been changes in the facts upon which said determination or opinion letters, if applicable, were based. (c) As to all Company Employee Benefit Plans: (i) All Company Employee Benefit Plans comply and have been administered in form and in operation in all material respects with all applicable requirements of Law and no notice has been issued by any Governmental Authority questioning or challenging such compliance. (ii) Each Company Employee Benefit Plan that is intended to be qualified under Code Section 401(a) complies in form and in operation in all material respects with all applicable requirements of Code Sections 401(a) and 501(a) and has received a favorable determination or opinion letter. (iii) There have been no “prohibited transactions” (as described in Section 406 of ERISA or Code Section 4975) with respect to any Company Employee Benefit Plan. (iv) None of the payments contemplated by the Company Employee Benefit Plans would, individually or in the aggregate, constitute excess parachute payments (as defined in Code Section 280G (without regard to subsection (b)(4) thereof)). (v) There are no actions, suits or claims (other than routine claims for benefits) pending or, to the Knowledge of the Company, threatened involving any Company Employee Benefit Plan or the assets thereof and no facts exist which could give rise to any such actions, suits or claims (other than routine claims for benefits). (vi) None of the Transferred Companies, their Subsidiaries or Project Entities have any liability or contingent liability for providing, under any Company Employee Benefit Plan or otherwise, any post retirement medical or life insurance benefits, other than statutory liability for providing group health plan continuation coverage under Part 6 of Title I of ERISA and Code Section 4980B. (vii) None of the Transferred Companies, their Subsidiaries or Project Entities nor any of their respective ERISA Affiliates, contributes to or has any liability or contingent liability with respect to a “multiemployer plan” (as defined in Section 3(37) of ERISA). (d) As to all Company Employee Benefit Plans, none of the Transferred Companies, their Subsidiaries or Project Entities nor any of their respective ERISA Affiliates sponsors, maintains or contributes to any employee benefit plan subject to Title IV of ERISA.

Pension and Benefit Plans; ERISA. (ai) None Except with respect to the plans, agreements and arrangements listed in Section 3.1(l)(i) of the Transferred CompaniesInnkeepers Disclosure Letter, neither Innkeepers REIT, any Innkeepers Subsidiary nor any of their Subsidiaries or Project Entities respective ERISA Affiliates is a party to, sponsors, participates in, in or contributes to or has any material liability or contingent liability with respect to: (iA) any “"employee welfare plan” " or “"employee pension benefit plan” " (as those terms are respectively defined in Sections 3(1) and 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”")), other than a "multiemployer plan" (as defined in Section 3(37) of ERISA); (iiB) any retirement or deferred compensation plan, incentive compensation plan, stock plan, profit profit-sharing, unemployment compensation plan, vacation pay, severance pay, post post-employment, supplemental employment or unemployment benefit plan or arrangement, bonus or benefit arrangement, insurance (including any self self-insurance) or hospitalization program or any other fringe or other benefit or compensation plans, programs or arrangements for any current or former employee, trustee, director, consultant or agent, whether pursuant to contract, arrangement, custom or informal understanding, arrangement or any “other "employee benefit plan” " (as defined in Section 3(3) of ERISA) other than those referred to in (A) above); or (iiiC) any employment, severance, termination, consultancy or other similar agreement. (bii) A true and correct copy of each of the material plans, programs, arrangements, and agreements listed on in Section 3.11 3.1(l)(ii) of the Company Innkeepers Disclosure Schedule Letter (referred to hereinafter as “Company "Innkeepers Employee Benefit Plans”") has been made available supplied to BuyerPurchaser. In the case of any Company Innkeepers Employee Benefit Plan that which is not in written form, Purchaser has been supplied with an accurate description of the material provisions of such Company Innkeepers Employee Benefit Plan as in effect on the date hereof has been made available to Buyerhereof. A true and correct copy of the three two (2) most recent annual reports, and the most recent actuarial reportreports, accountant’s opinion 's opinions of the plan’s 's financial statements, the summary plan description and Internal Revenue Service determination or opinion letter with respect to each Company Innkeepers Employee Benefit Plan, to the extent applicable, has been made available supplied to BuyerPurchaser, and there have been no material adverse changes in the financial condition of in the respective plans from that stated in those the annual reports and actuarial reports norsupplied. Section 3.1(l)(ii) of the Innkeepers Disclosure Letter contains a true and complete list of each loan or extension of credit between Innkeepers REIT or any Innkeepers Subsidiary, to on the Company’s Knowledgeone hand, have there been changes in and any of their respective trustees, directors, officers or employees, on the facts upon which said determination other, and the outstanding balances under each such loan or opinion letters, if applicable, were basedextension of credit as of the date hereof. (ciii) As to all Company Innkeepers Employee Benefit Plans: (iA) All Company Innkeepers Employee Benefit Plans comply and have been administered in form and in operation in all material respects with all applicable requirements of Law Law, and no event has occurred which shall or would reasonably be expected to cause any such Innkeepers Employee Benefit Plan to fail to comply with such requirements and no notice has been issued by any Governmental Authority governmental authority questioning or challenging such compliance. (iiB) Each Company (w) All Innkeepers Employee Benefit Plan that is intended to be qualified under Code Section 401(a) complies Plans which are employee pension benefit plans comply in form and in operation in all material respects with all applicable requirements of Code Sections 401(a) and 501(a) and of the Code; (x) each Innkeepers Employee Benefit Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter, or opinion letterhas pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and Innkeepers REIT is not aware of any reason why any such determination letter should be revoked; (y) there have been no amendments to such plans which are not the subject of a favorable determination letter issued with respect thereto by the Internal Revenue Service (other than an amendment for which the remedial amendment period under Section 401(b) of the Code has not expired); and (z) no event has occurred which would reasonably be expected to give rise to disqualification of any such plan under such sections. (iiiC) There Except as set forth in Section 3.1(l)(iii)(C) of the Innkeepers Disclosure Letter, None of the assets of any Innkeepers Employee Benefit Plan is invested in employer securities or employer real property. (D) Except as would not reasonably be expected to result in an Innkeepers Material Adverse Effect, there have been no “"prohibited transactions” " (as described in Section 406 of ERISA or Code Section 49754975 of the Code) with respect to any Company Innkeepers Employee Benefit Plan. (ivE) Except as set forth in Section 3.1(l)(iii)(E) of the Innkeepers Disclosure Letter, there have been no acts or omissions which have given rise to or which would reasonably be expected to give rise to fines, penalties, taxes or related charges under Section 502 of ERISA or Chapters 43, 47 or 100 of the Code for which Innkeepers REIT or any Innkeepers Subsidiary may be liable. (F) None of the payments contemplated by the Company Innkeepers Employee Benefit Plans would, individually or in the aggregate, constitute excess parachute payments (as defined in Code Section 280G of the Code (without regard to subsection (b)(4) thereof))) in connection with the transactions contemplated by this Agreement. (vG) There are no actions, suits or claims (other than routine claims for benefits) pending or, to the Knowledge of the CompanyInnkeepers Parties, threatened involving any Company Innkeepers Employee Benefit Plan or the assets thereof and and, no facts exist which could give rise to any such actions, suits or claims (other than routine claims for benefits). (viH) None Neither Innkeepers REIT, any Innkeepers Subsidiary nor any of their respective ERISA Affiliates sponsors, maintains or contributes to, or has in the Transferred Companiespast six (6) years sponsored, their Subsidiaries maintained or Project Entities have contributed to, any liability employee benefit plan subject to Title IV of ERISA. (I) Neither Innkeepers REIT nor any Innkeepers Subsidiary has any Liability or contingent liability Liability for providing, under any Company Innkeepers Employee Benefit Plan or otherwise, any post post-retirement medical or life insurance benefits, other than statutory liability for providing group health plan continuation coverage under Part 6 of Title I of ERISA and Code Section 4980B.4980B of the Code. (viiJ) None To the Knowledge of the Transferred CompaniesInnkeepers Parties, their there has been no act or omission that would impair the ability of Innkeepers REIT and the Innkeepers Subsidiaries (or Project Entities any successor thereto) to unilaterally amend or terminate any Innkeepers Employee Benefit Plan, other than to the extent not permitted by its terms. (K) Except as set forth in Section 3.1(l)(iii)(K)(x) of the Innkeepers Disclosure Letter, the consummation of the transactions contemplated by this Agreement shall not (either alone or together with any other event) entitle any current or former employee, director, trustee or independent contractor of Innkeepers REIT or the Innkeepers Subsidiaries to any payment, bonus, retirement, severance, job security or similar benefit or enhance any such benefit, or accelerate the time of payment, vesting or exercisability or trigger any payment of funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other obligation pursuant to, any Innkeepers Employee Benefit Plan. Section 3.1(l)(iii)(K)(y) of the Innkeepers Disclosure Letter lists all the agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers or key employees of Innkeepers REIT or the Innkeepers Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by Innkeepers REIT or the employee), true and complete copies of which have been previously provided or made available (by public filing with the SEC or otherwise) to Purchaser prior to the date hereof. (L) There has been no amendment to, written interpretation or announcement (whether or not written) by Innkeepers REIT or the Innkeepers Subsidiaries relating to, or change in employee participation or coverage under, any Innkeepers Employee Benefit Plan which would increase materially the expense of maintaining such employee plan above the level of the expense incurred in respect thereof as of the Balance Sheet Date. (iv) Neither Innkeepers REIT, any Innkeepers Subsidiary nor any of their respective ERISA Affiliates, contributes to to, has contributed to, or has any liability Liability or contingent liability Liability with respect to a “"multiemployer plan” " (as defined in Section 3(37) of ERISA). (dv) As to all Company Employee Benefit PlansAll Innkeepers Options have an exercise price per share that was not less than the "fair market value" of an Innkeepers REIT Common Share on the date of grant, none as determined in accordance with the terms of the Transferred Companiesapplicable Innkeepers Option Plan and, their Subsidiaries to the extent applicable, Sections 409A and 422 of the Code. To the Knowledge of the Innkeepers Parties, there is no pending or Project Entities nor threatened audit, investigation or inquiry by any of their respective ERISA Affiliates sponsorsgovernmental agency or by the Innkeepers REIT with respect to the Innkeepers REIT's stock option granting practices or other equity compensation practices, maintains or contributes except as would not reasonably be expected to any employee benefit plan subject to Title IV of ERISAresult in an Innkeepers Material Adverse Effect.

Pension and Benefit Plans; ERISA. (ai) None Except as set forth in Section 3.1(l)(i) of the Transferred CompaniesAMLI Disclosure Letter, neither AMLI, any AMLI Subsidiary nor any of their Subsidiaries or Project Entities respective ERISA Affiliates is a party to, sponsors, participates in, contributes to or has any material liability or contingent liability with respect to: (iA) any “employee welfare plan” or “employee pension benefit plan” (as those terms are respectively defined in Sections 3(1) and 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), other than a “multiemployer plan” (as defined in Section 3(37) of ERISA); (iiB) any retirement or deferred compensation plan, incentive compensation plan, stock plan, profit profit-sharing, unemployment compensation plan, vacation pay, severance pay, post post-employment, supplemental employment or unemployment benefit plan or arrangement, bonus or benefit arrangement, insurance (including any self self-insurance) or hospitalization program or any other fringe or other benefit or compensation plans, programs or arrangements for any current or former employee, trustee, director, consultant or agent, whether pursuant to contract, arrangement, custom or informal understanding, or any other “employee benefit plan” (as defined in Section 3(3) of ERISA) other than those referred to in (A) above); or (iiiC) any employment, severance, termination, consultancy or other similar agreement. (bii) A true and correct copy of each of the plans, programs, arrangements, and agreements listed on in Section 3.11 3.1(l)(i) of the Company AMLI Disclosure Schedule Letter (referred to hereinafter as “Company AMLI Employee Benefit Plans”) has been made available supplied to Buyerthe Purchaser. In the case of any Company AMLI Employee Benefit Plan that which is not in written form, the Purchaser has been supplied with an accurate description of such Company AMLI Employee Benefit Plan as in effect on the date hereof has been made available to Buyerhereof. A true and correct copy of the three most recent annual reportsreport, and the most recent actuarial report, accountant’s opinion of the plan’s financial statements, summary plan description and Internal Revenue Service determination or opinion letter with respect to each Company AMLI Employee Benefit Plan, to the extent applicable, has been made available supplied to Buyerthe Purchaser, and there have been no material adverse changes in the financial condition of in the respective plans from that stated in those the annual reports and actuarial reports norsupplied. Section 3.1(l)(i) of the AMLI Disclosure Letter contains a true and complete list of each loan or extension of credit between AMLI or any AMLI Subsidiary, to on the Company’s Knowledgeone hand, have there been changes in and any of their respective trustees, directors, officers or employees, on the facts upon which said determination other, and the outstanding balances under each such loan or opinion letters, if applicable, were basedextension of credit as of the date hereof. (ciii) As to all Company AMLI Employee Benefit Plans: (iA) All Company AMLI Employee Benefit Plans comply and have been administered in form and in operation in all material respects with all applicable requirements of Law law, and no event has occurred which will or could cause any such AMLI Employee Benefit Plan to fail to comply with such requirements and no notice has been issued by any Governmental Authority governmental authority questioning or challenging such compliance. (iiB) Each Company (w) All AMLI Employee Benefit Plan that is intended to be qualified under Code Section 401(a) complies Plans which are employee pension benefit plans comply in form and in operation in all material respects with all applicable requirements of Code Sections 401(a) and 501(a) and of the Code; (x) each AMLI Employee Benefit Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter, or opinion letterhas pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and AMLI is not aware of any reason why any such determination letter should be revoked or not be reissued; (y) there have been no amendments to such plans which are not the subject of a favorable determination letter issued with respect thereto by the Internal Revenue Service (other than an amendment for which the remedial amendment period under Section 401(b) of the Code has not expired); and (z) no event has occurred which could reasonably be expected to give rise to disqualification of any such plan under such sections or to a tax under Section 511 of the Code. (iiiC) Except as set forth in Section 3.1(l)(iii)(C) of the AMLI Disclosure Letter, none of the assets of any AMLI Employee Benefit Plan is invested in employer securities or employer real property. (D) There have been no “prohibited transactions” (as described in Section 406 of ERISA or Code Section 49754975 of the Code) with respect to any Company AMLI Employee Benefit Plan. (ivE) None There have been no acts or omissions by which have given rise to or which could reasonably be expected to give rise to fines, penalties, taxes or related charges under Section 502 of ERISA or Chapters 43, 47, 68 or 100 of the Code for which AMLI or any AMLI Subsidiary may be liable. (F) Except as set forth in Section 3.1(l)(iii)(F) of the AMLI Disclosure Letter, none of the payments contemplated by the Company AMLI Employee Benefit Plans would, individually or in the aggregate, constitute excess parachute payments (as defined in Code Section 280G of the Code (without regard to subsection (b)(4) thereof)). (vG) There are no actions, suits or claims (other than routine claims for benefits) pending or, to the Knowledge of the Company, or threatened involving any Company AMLI Employee Benefit Plan or the assets thereof and no facts exist which could give rise to any such actions, suits or claims (other than routine claims for benefits). (viH) None Neither AMLI, any AMLI Subsidiary nor any of their respective ERISA Affiliates sponsors, maintains or contributes to, or has in the past six years sponsored, maintained or contributed to, any employee benefit plan subject to Title IV of ERISA. (I) Each AMLI Employee Benefit Plan which constitutes a “group health plan” (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Transferred CompaniesCode), their Subsidiaries including any plans of current and former affiliates which must be taken into account under Sections 4980B and 414(t) of the Code or Project Entities have Section 601 of ERISA, has been operated in compliance in all material respects with applicable law, including coverage requirements of Sections 4980B of the Code, Chapter 100 of the Code and Section 601 of ERISA to the extent such requirements are applicable. (J) Neither AMLI nor any AMLI Subsidiary has any liability or contingent liability for providing, under any Company AMLI Employee Benefit Plan or otherwise, any post post-retirement medical or life insurance benefits, other than statutory liability for providing group health plan continuation coverage under Part 6 of Title I of ERISA and Code Section 4980B.4980B of the Code. (viiK) None There has been no act or omission that would impair the ability of AMLI and AMLI Subsidiaries (or any successor thereto) to unilaterally amend or terminate any AMLI Employee Benefit Plan. (L) Except as set forth in Section 3.1(l)(iii)(L)(I) of the Transferred CompaniesAMLI Disclosure Letter, their the consummation of the transactions contemplated by this Agreement will not (either alone or together with any other event) entitle any current or former employee, director, trustee or independent contractor of AMLI or the AMLI Subsidiaries to any payment, bonus, retirement, severance, job security or Project Entities similar benefit or enhance any such benefit, or accelerate the time of payment, vesting or exercisability or trigger any payment of funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other obligation pursuant to, any AMLI Employee Benefit Plan. There is no contract, plan or arrangement (written or otherwise) covering any employee or former employee of AMLI or any AMLI Subsidiary that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 162(m) of the Code. Section 3.1(l)(i)(iii)(L)(II) of the AMLI Disclosure Letter lists all the agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers or key employees of the AMLI or the AMLI Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by AMLI or the employee), true and complete copies of which have been made available to Purchaser prior to the date hereof. (M) There has been no amendment to, written interpretation or announcement (whether or not written) by AMLI or the AMLI Subsidiaries relating to, or change in employee participation or coverage under, any AMLI Employee Benefit Plan which would increase materially the expense of maintaining such employee plan above the level of the expense incurred in respect thereof as of the Balance Sheet Date. (iv) Neither AMLI, any AMLI Subsidiary nor any of their respective ERISA Affiliates, contributes to to, has contributed to, or has any liability or contingent liability with respect to a “multiemployer plan” (as defined in Section 3(37) of ERISA). (d) As to all Company Employee Benefit Plans, none of the Transferred Companies, their Subsidiaries or Project Entities nor any of their respective ERISA Affiliates sponsors, maintains or contributes to any employee benefit plan subject to Title IV of ERISA.

Pension and Benefit Plans; ERISA. (a) None Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, Section 4.13(a) of the Transferred Companies, their Subsidiaries or Project Entities is a party to, sponsors, participates in, contributes to or has any Company Disclosure Letter lists each material liability or contingent liability with respect to: (i) any “employee welfare plan” or and “employee pension benefit plan” (as those terms are respectively defined in Sections 3(1) and 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)); , other than a “multiemployer plan” (iias defined in Section 3(37) any of ERISA), and each material retirement or deferred compensation plan, incentive compensation plan, stock plan, profit profit-sharing, unemployment compensation plan, vacation pay, severance pay, post post-employment, supplemental employment or unemployment benefit plan or arrangement, bonus or benefit arrangement, insurance (including any self self-insurance) or hospitalization program or any other fringe or other benefit or compensation plansplan, programs or arrangements for any current or former employeeprogram, trustee, director, consultant or agent, whether pursuant to contract, arrangement, custom or informal understanding, arrangement or any other “employee benefit plan” (as defined in Section 3(3) of ERISA) other than those referred , whether pursuant to in (A) above; or (iii) any contract, arrangement, custom or informal understanding, and each material employment, severance, termination, consultancy or other similar agreement, in each case that the Company or any Company Subsidiary sponsors, participates in or contributes to for the benefit of any current or former employee, trustee, director, consultant or agent of the Company and/or the Company Subsidiaries (each, a “Company Employee Benefit Plan”). Neither the Company nor any Company Subsidiary has announced or entered into any plan or binding commitment to create any additional Company Employee Benefit Plan. (b) A true and correct copy of each of the plans, programs, arrangements, and agreements listed on Section 3.11 of the Company Disclosure Schedule (referred to hereinafter as “written Company Employee Benefit Plans”) Plan and a true and correct written description of any unwritten Company Employee Benefit Plan has been made available to Buyer. In the case of any Company Employee Benefit Plan that is not in written form, an accurate description of such Company Employee Benefit Plan as in effect on the date hereof has been made available to BuyerPurchaser. A true and correct copy of the three most recent annual reports, and the most recent actuarial report, accountant’s opinion of the plan’s financial statements, summary plan description and description, Internal Revenue Service determination or opinion letter letter, trust agreement, insurance contract and administrative services agreement and the three (3) most recent annual reports (Form 5500 Series), actuarial reports, and annual financial statements with respect to each Company Employee Benefit Plan, in each case to the extent applicable, has been supplied or made available to Buyer, and there have been no material adverse changes in the financial condition of the respective plans from that stated in those annual reports and actuarial reports nor, to the Company’s Knowledge, have there been changes in the facts upon which said determination or opinion letters, if applicable, were basedPurchaser. (c) As to all Except as set forth in Section 4.13(c) of the Company Employee Benefit PlansDisclosure Schedule Letter: (i) All Company Employee Benefit Plans comply and have been administered in form and in operation in all material respects compliance with all applicable requirements of Law any Laws, except as would not, individually or in the aggregate, have a Company Material Adverse Effect, and no written notice has been issued by any Governmental Authority Entity questioning or challenging such compliancecompliance and, to the Knowledge of the Company, no event has occurred that would reasonably be expected to cause any such Company Employee Benefit Plan to fail to comply with such requirements. The Company and the Company Subsidiaries have timely made all contributions and other payments required by Law or due under the terms of each Company Employee Benefit Plan, and contributions and other payments for any period ending on or before the Closing Date which are an obligation of the Company or any Company Subsidiary and not yet due have either been made to each such Company Employee Benefit Plan, or have been properly reflected on the Company’s financial statements in accordance with GAAP, except as would not, individually or in the aggregate, have a Company Material Adverse Effect. (ii) Each (A) All Company Employee Benefit Plans which are employee pension benefit plans comply with all applicable requirements of Sections 401(a) and 501(a) of the Code, except as would not, individually or in the aggregate, have a Company Material Adverse Effect; (B) each Company Employee Benefit Plan that is intended to be qualified under Code Section 401(a) complies in form and in operation in all material respects with all applicable requirements of the Code Sections 401(a) and 501(a) and has received a favorable determination letter, or opinion letter. has pending an application for such determination from the Internal Revenue Service with respect to those provisions for which the remedial amendment period under Section 401(b) of the Code has not expired, and the Company is not aware of any reason why any such determination letter should be revoked; (iiiC) There there have been no “prohibited transactions” (as described in Section 406 amendments to such plans that are not the subject of ERISA or Code Section 4975) a favorable determination letter issued with respect to any Company Employee Benefit Plan. thereto by the Internal Revenue Service (ivother than an amendment for which the remedial amendment period under Section 401(b) None of the payments contemplated by Code has not expired); and (D) no event has occurred that would reasonably be expected to adversely effect the Company Employee Benefit Plans wouldqualified status of any such plan under such sections, except as would not, individually or in the aggregate, constitute excess parachute payments (as defined in Code Section 280G (without regard to subsection (b)(4) thereof))have a Company Material Adverse Effect. (viii) There are no actions, suits or claims (other than routine claims for benefits) pending or, to the Knowledge of the Company, threatened involving any Company Employee Benefit Plan or the assets thereof and and, to the Knowledge of the Company, no facts exist which could that would reasonably be expected to give rise to any such actions, suits or claims (other than routine claims for benefits). There are no audits, inquiries or proceedings pending or, to the Company’s Knowledge, threatened by the Internal Revenue Service, Department of Labor or other Governmental Entity with respect to any Company Employee Benefit Plan. (viiv) None Neither the Company, any Company Subsidiary nor any of their respective ERISA Affiliates sponsors, maintains or contributes to, or has in the past six years sponsored, maintained or contributed to, any employee benefit plan subject to Title IV of ERISA or Section 412 of the Transferred Companies, their Subsidiaries or Project Entities have Code. (v) Neither the Company nor any Company Subsidiary has any liability or contingent liability for providing, under any Company Employee Benefit Plan or otherwise, any post post-retirement medical or life insurance benefits, other than statutory liability for providing group health plan continuation coverage under Part 6 of Title I of ERISA and Section 4980B of the Code. (vi) With respect to each Company Employee Benefit Plan, (A) there has not occurred, and no Person is contractually bound to enter into, any “prohibited transaction” within the meaning of Section 4975(c) of the Code or Section 4980B.406 of ERISA, which transaction is not exempt under Section 4975(d) of the Code or Section 408 of ERISA and which could subject the Company or any Company Subsidiary to liability, except as would not, individually or in the aggregate, have a Company Material Adverse Effect and (B) no fiduciary (within the meaning of Section 3(21) of ERISA) of any Company Employee Benefit Plan subject to Part 4 of Title I of ERISA has committed a breach of fiduciary duty that could subject the Company or any Company Subsidiary to liability, except as would not, individually or in the aggregate, have a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary has incurred any excise taxes under Chapter 43 of the Code and nothing has occurred with respect to any Company Employee Benefit Plan that could subject the Company or any Company Subsidiary to any such taxes. (vii) None With respect to each Company Employee Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Transferred CompaniesCode and associated Treasury Department guidance, their including IRS Notice 2005-1 and Proposed Treasury Regulations at 70 Fed. Reg. 57930 (October 4, 2005), it either (A) has been operated in full compliance with Code Section 409A since January 1, 2005, or (B) does not provide for the payment of any benefits that have or will be deferred or vested after December 31, 2004 and since October 3, 2004, it has not been “materially modified” within the meaning of Section 409A of the Code and associated Treasury Department guidance, including IRS Notice 2005-1, Q&A 18 and Proposed Treasury Regulations at 70 Fed. Reg. 57930 (October 4, 2005). (viii) The consummation of the transactions contemplated by this Agreement will not (either alone or together with any other event) entitle any current or former employee or director of the Company or the Company Subsidiaries to any payment, bonus, retirement, severance, job security or Project Entities similar benefit or enhance any such benefit, or accelerate the time of payment, vesting or exercisability or trigger any payment of funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other obligation pursuant to, any Company Employee Benefit Plan or otherwise trigger any excise parachute payment within the meaning of Section 280G of the Code. (ix) Neither the Company, any Company Subsidiary nor any of their respective ERISA Affiliates, contributes to to, has contributed to, or has any liability or contingent liability with respect to a “multiemployer plan” (as defined in Section 3(37) of ERISA). (d) As to all Company Employee Benefit Plans, none of the Transferred Companies, their Subsidiaries or Project Entities nor any of their respective ERISA Affiliates sponsors, maintains or contributes to any employee benefit plan subject to Title IV of ERISA.