Section 1.6011-4(b)(1). At no time during the past five (5) years has SunTrust been a United States real property holding corporation within the meaning of Section 897(c)(2) of the
Code.
(b) As used in this Agreement, the term
Tax
or
Taxes
means all federal, state, local, and
foreign income, excise, gross receipts, ad valorem, profits, gains, property, capital, sales, transfer, use, license, payroll, employment, social security, severance, unemployment, withholding, duties, excise, windfall profits, intangibles,
franchise, backup withholding, value added, alternative or add-on minimum, estimated and other taxes, charges, levies or like assessments together with all penalties and additions to tax and interest thereon.
(c) As used in this Agreement, the term
Tax Return
means any return, declaration, report, claim for refund, or information
return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof, supplied or required to be supplied to a Governmental Entity.
3.11
Employees
.
(a) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on SunTrust, each
SunTrust Benefit Plan has been established, operated and administered in accordance with its terms and the requirements of all applicable laws, including ERISA and the Code. For purposes of this Agreement, the term
SunTrust Benefit
Plans
means all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (
ERISA
)), whether or not subject to ERISA, and all equity, bonus or incentive,
deferred compensation, retiree medical or life insurance, supplemental retirement, severance, termination, change in control, retention, employment, welfare, insurance, medical, fringe or other benefit plans, programs, agreements, contracts,
policies, arrangements or remuneration of any kind with respect to which SunTrust or any Subsidiary or any trade or business of SunTrust or any of its Subsidiaries, whether or not incorporated, all of which together with SunTrust would be deemed a
single employer within the meaning of Section 4001 of ERISA (a
SunTrust ERISA Affiliate
), is a party or has any current or future obligation or that are maintained, contributed to or sponsored by SunTrust or any
of its Subsidiaries or any SunTrust ERISA Affiliate for the benefit of any current or former employee, officer, director or independent contractor of SunTrust or any of its Subsidiaries or any SunTrust ERISA Affiliate, excluding, in each case, any
multiemployer plan within the meaning of Section 4001(a)(3) of ERISA (a
Multiemployer Plan
).
(b)
SunTrust has made available to BB&T true and complete copies of each material SunTrust Benefit Plan and the following related documents, to the extent applicable: (i) all summary plan descriptions, amendments, modifications or material
supplements, (ii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the
IRS
), (iii) the most recently received IRS determination letter, and (iv) the most recently prepared actuarial
report.
(c) The IRS has issued a favorable determination letter or opinion with respect to each SunTrust Benefit Plan that is intended to
be qualified under Section 401(a) of the Code (the
SunTrust Qualified Plans
) and the related trust, which letter or opinion has not been revoked (nor has revocation been threatened), and, to the knowledge of SunTrust, there
are no existing circumstances and no events have occurred that would reasonably be expected to adversely affect the qualified status of any SunTrust Qualified Plan or the related trust.
(d) Except as would not result in any material liability to SunTrust and its Subsidiaries, taken as a whole, with respect to each SunTrust
Benefit Plan that is subject to Section 302 or Title IV of ERISA or Section 412, 430 or 4971 of the Code: (i) the minimum funding standard under Section 302 of ERISA and Sections 412 and 430 of the Code has been
satisfied and no waiver of any minimum funding standard or any extension of any amortization period has been requested or granted, (ii) no such plan is in at-risk status for purposes of Section 430 of the Code, (iii) the
present value of accrued benefits under such SunTrust Benefit Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such SunTrust Benefit Plans actuary with respect to such
SunTrust Benefit Plan, did not, as of its latest valuation
A-15