Common use of Transfers Prohibited by ERISA Clause in Contracts

Transfers Prohibited by ERISA. In addition to the prohibitions set forth in Section 4.2(b)(i), above, Borrowers shall not engage in or permit a Transfer that would constitute or result in the occurrence of one or more non-exempt prohibited transactions under ERISA or the Internal Revenue Code. Borrowers agree to unwind any such Transfer upon notice from Lender or, at Lender’s option, to assist Lender in obtaining such prohibited transaction exemption(s) from the Employee Benefits Security Administration with respect to such Transfer as are necessary to remedy such prohibited transactions. In addition to its general obligation to indemnify Lender under Section 4.2(l), Borrowers shall reimburse Lender for any Expenses incurred by Lender to obtain any such prohibited transaction exemptions. Borrowers’ obligations under this Section 4.2(b)(ii) shall survive the expiration or termination of the Loan Documents, Borrowers shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under any of the Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA. Borrowers further covenant and agree to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan Documents, as reasonably requested by Lender, that (i) Borrowers are not an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(32) of ERISA; (ii) Borrowers are not subject to Federal or state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (iii) one or more of the following circumstances is true: (1) Equity interests in Borrowers are publicly offered securities within the meaning of 29 C.F.R. Section 2510.3-101(b)(2); (2) Less than 25 percent of each outstanding class of equity interests in Borrowers are held by “benefit plan investors” within the meaning of 29 C.F.R. Section 2510.3-101(f)(2); or (3) Each Borrower qualifies as an “operating company” within the meaning of 29 C.F.R. Section 2510.3-101 or an investment company registered under the Investment Company Act of 1940. Borrowers shall indemnify Lender and defend and hold Lender harmless from and against all civil penalties, excise taxes, or other loss, cost damage and expense (including, without limitation, reasonable attorneys’ fees and disbursements and costs incurred in the investigation, defense and settlement of claims and losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s reasonable discretion) that Lender may incur, directly or indirectly, as a result of a Default under this Section 4.2(b)(ii). This indemnity shall survive any termination of the Loan Documents or, satisfaction or foreclosure of the Security Instruments.

Transfers Prohibited by ERISA. In addition to the prohibitions set forth in Section 4.2(b)(i4.2(b) (i), above, Borrowers Borrower shall not engage in or permit a Transfer that would constitute or result in the occurrence of one or more non-exempt prohibited transactions under ERISA or the Internal Revenue Code. Borrowers agree Borrower agrees to unwind any such Transfer upon notice from Lender or, at Lender’s option, to assist Lender in obtaining such prohibited transaction exemption(s) from the Employee Benefits Security Administration with respect to such Transfer as are necessary to remedy such prohibited transactions. In addition to its general obligation to indemnify Lender under Section 4.2(l4.2(k), Borrowers Borrower shall reimburse Lender for any Expenses incurred by Lender to obtain any such prohibited transaction exemptions. Borrowers’ Borrower’s obligations under this Section 4.2(b)(ii4.2(b) (ii) shall survive the expiration or termination of the Loan Documents, Borrowers Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under any of the Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA. Borrowers Borrower further covenant covenants and agree agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan Documents, as reasonably requested by LenderLender in its sole and absolute discretion, that (i) Borrowers are Borrower is not an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(32) of ERISA; (ii) Borrowers are Borrower is not subject to Federal or state statutes regulating investments and fiduciary obligations with respect to governmental plans; (iii) Borrower is not a party in interest to any plan defined or regulated under ERISA, and the assets of Borrower are not “plan assets” of any employee benefit plan covered by ERISA or Section 4975 of the Internal Revenue Code; and (iiiiv) one or more of the following circumstances is true: (1A) Equity interests in Borrowers Borrower are publicly offered securities within the meaning of 29 C.F.R. Section 2510.3-101(b)(2101(b) (2); (2B) Less than 25 percent of each outstanding class of equity interests in Borrowers Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. Section 2510.3-101(f)(2101(f) (2); or (3C) Each Borrower qualifies as an “operating company” within the meaning of 29 C.F.R. Section 2510.3-101 or an investment company registered under the Investment Company Act of 1940. Borrowers Borrower shall indemnify Lender and defend and hold Lender harmless from and against all civil penalties, excise taxes, or other loss, cost damage and expense (including, without limitation, reasonable attorneys’ fees and disbursements and costs incurred in the investigation, defense and settlement of claims and losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s reasonable sole and absolute discretion) that Lender may incur, directly or indirectly, as a result of a Default or Event of Default under this Section 4.2(b)(ii)Section. This indemnity shall survive any termination of the Loan Documents or, satisfaction or foreclosure of the Security InstrumentsInstrument.

Transfers Prohibited by ERISA. In addition to the prohibitions set forth in Section 4.2(b)(i4.2(b) (i), above, Borrowers Borrower shall not engage in or permit a Transfer that would constitute or result in the occurrence of one or more non-exempt prohibited transactions under ERISA or the Internal Revenue Code. Borrowers agree Borrower agrees to unwind any such Transfer upon notice from Lender or, at Lender’s 's option, to assist Lender in obtaining such prohibited transaction exemption(s) from the Employee Benefits Security Administration with respect to such Transfer as are necessary to remedy such prohibited transactions. In addition to its general obligation to indemnify Lender under Section 4.2(l4.2(k), Borrowers Borrower shall reimburse Lender for any Expenses incurred by Lender to obtain any such prohibited transaction exemptions. Borrowers’ Borrower's obligations under this Section 4.2(b)(ii4.2(b) (ii) shall survive the expiration or termination of the Loan Documents, Borrowers Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under any of the Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA. Borrowers Borrower further covenant covenants and agree agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan Documents, as reasonably requested by LenderLender in its sole and absolute discretion, that (i) Borrowers are Borrower is not an “"employee benefit plan” " as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “"governmental plan” " within the meaning of Section 3(32) of ERISA; (ii) Borrowers are Borrower is not subject to Federal or state statutes regulating investments and fiduciary obligations with respect to governmental plans; (iii) Borrower is not a party in interest to any plan defined or regulated under ERISA, and the assets of Borrower are not "plan assets" of any employee benefit plan covered by ERISA or Section 4975 of the Internal Revenue Code; and (iiiiv) one or more of the following circumstances is true: (1A) Equity interests in Borrowers Borrower are publicly offered securities within the meaning of 29 C.F.R. Section 2510.3-101(b)(2101(b) (2); (2B) Less than 25 percent of each outstanding class of equity interests in Borrowers Borrower are held by “"benefit plan investors” " within the meaning of 29 C.F.R. Section 2510.3-101(f)(2101(f) (2); or (3C) Each Borrower qualifies as an “"operating company” " within the meaning of 29 C.F.R. Section 2510.3-101 or an investment company registered under the Investment Company Act of 1940. Borrowers Borrower shall indemnify Lender and defend and hold Lender harmless from and against all civil penalties, excise taxes, or other loss, cost damage and expense (including, without limitation, reasonable attorneys’ ' fees and disbursements and costs incurred in the investigation, defense and settlement of claims and losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s reasonable 's sole and absolute discretion) that Lender may incur, directly or indirectly, as a result of a Default or Event of Default under this Section 4.2(b)(ii)Section. This indemnity shall survive any termination of the Loan Documents or, satisfaction or foreclosure of the Security InstrumentsInstrument.

Transfers Prohibited by ERISA. In addition to the prohibitions set forth in Section 4.2(b)(i), above, Borrowers Borrower shall not engage in or permit a Transfer that would constitute or result in the occurrence of one or more non-exempt prohibited transactions under ERISA or the Internal Revenue Code. Borrowers agree Borrower agrees to unwind any such Transfer upon notice from Lender or, at Lender’s option, to assist Lender in obtaining such prohibited transaction exemption(s) from the Employee Benefits Security Administration with respect to such Transfer as are necessary to remedy such prohibited transactions. In addition to its general obligation to indemnify Lender under Section 4.2(l4.2(k), Borrowers Borrower shall reimburse Lender for any Expenses incurred by Lender to obtain any such prohibited transaction exemptions. Borrowers’ Borrower’s obligations under this Section 4.2(b)(ii) shall survive the expiration or termination of the Loan Documents, Borrowers Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under any of the Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA. Borrowers Borrower further covenant covenants and agree agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan Documents, as reasonably requested by LenderLender in its sole and absolute discretion, that (i) Borrowers are Borrower is not an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(32) of ERISA; (ii) Borrowers are Borrower is not subject to Federal or state statutes regulating investments and fiduciary obligations with respect to governmental plans; (iii) Borrower is not a party in interest to any plan defined or regulated under ERISA, and the assets of Borrower are not “plan assets” of any employee benefit plan covered by ERISA or Section 4975 of the Internal Revenue Code; and (iiiiv) one or more of the following circumstances is true: (1A) Equity interests in Borrowers Borrower are publicly offered securities within the meaning of 29 C.F.R. Section 2510.3-101(b)(2); (2B) Less than 25 percent of each outstanding class of equity interests in Borrowers Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R. Section 2510.3-101(f)(2); or (3C) Each Borrower qualifies as an “operating company” within the meaning of 29 C.F.R. Section 2510.3-101 or an investment company registered under the Investment Company Act of 1940. Borrowers Borrower shall indemnify Lender and defend and hold Lender harmless from and against all civil penalties, excise taxes, or other loss, cost damage and expense (including, without limitation, reasonable attorneys’ fees and disbursements and costs incurred in the investigation, defense and settlement of claims and losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s reasonable sole and absolute discretion) that Lender may incur, directly or indirectly, as a result of a Default or Event of Default under this Section 4.2(b)(ii)Section. This indemnity shall survive any termination of the Loan Documents or, satisfaction or foreclosure of the Security InstrumentsInstrument.