PART III. ENCLOSURES

In addition to the applicable enclosures listed on Appendix F, the Plan Sponsor encloses the following with this submission:

• Copies of all amendments used to correct the failure(s), either as adopted or in proposed form ( required )

• A copy of the plan document in effect prior to any of the amendments used to correct the failure(s) ( required )

• For a § 401(a)(17) failure in a defined contribution plan, specific calculations for each affected employee or a representative sample of affected employees. (The sample calculations must be sufficient to demonstrate each aspect of the correction method proposed. For example, the determination of the fraction used to determine the additional amount to be allocated to each employee (other than those for whom there was a § 401(a)(17) failure) must be demonstrated.)

mitment (that is, debt without temporary, or “bridge,” terms), the Lender may be unable to sell the debt to third parties for a price equal to (or near) the amount of money provided to the corporation pursuant to the Financing Commitment. In these situations, the issue price of the debt may be significantly less than the amount of money advanced to the corporation. For example, this result could occur, in certain circumstances, if the Lender sells a substantial amount of the debt to third parties in its capacity as an underwriter within the meaning of § 1.1273–2(e).

(2) In situations in which a corporation issues debt with temporary, or “bridge,” terms previously established in the Financing Commitment, the corporation may be unable to refinance the debt in the capital markets with new, alternative, “permanent” debt financing with terms that are more (or equally) favorable than the “permanent” terms embedded in the debt issued pursuant to the Financing Commitment. Thus, in order to allow the Lender to sell the debt to third parties (whether as part of a separately negotiated transaction or because the corporation is required to do so by contract), the parties may amend the terms of the debt to make it more marketable. Depending on the facts of a given case, such amendments may constitute a “significant modification” within the meaning of § 1.1001–3. In this situation, the issue price of the new debt, deemed to have been issued to retire the old debt, may be significantly less than the amount of money initially advanced to the corporation. For example, this result could occur, in certain circumstances, if the new debt is traded on an established market within the meaning of § 1.1273–2(f).

.05 The issuance of a debt instrument pursuant to a Financing Commitment (or pursuant to the significant modification of a debt instrument originally issued

26 CFR 601.601: Rules and regulations. (Also Part I, § 163.)

Rev. Proc. 2008–51