Common use of Employee Retirement Income Security Act of 1974 Clause in Contracts

Employee Retirement Income Security Act of 1974. (a) Diablo (which for purposes of this Section shall include any ERISA Affiliate) is not making any contribution to or sponsoring, and has not at any time since its organization made any contribution to or sponsored, any Plan or Benefit Arrangement, except as set forth in Section 3.12(a) of the Diablo Disclosure Schedule. As to all Plans and Benefit Arrangements listed in Section 3.12(a) of the Diablo Disclosure Schedule: (i) all such Plans and Benefit Arrangements comply and have been administered in form and in operation with all Applicable Laws in all material respects, and Diablo has not received any notice from any Authority questioning or challenging such compliance; (ii) all such Plans maintained or previously maintained by Diablo that are or were intended to comply with Sections 401 and 501 of the Code comply and complied in form and in operation with all applicable requirements of such sections, and no event has occurred which will or could give rise to disqualification of any such Plan under such sections or to a tax under Section 511 of the Code; (iii) none of the assets of any such Plan are invested in employer securities or employer real property; (iv) there have been no "prohibited transactions" (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any such Plan and Diablo has not otherwise engaged in any prohibited transaction; (v) there have been no acts or omissions by Diablo which have given rise to or may give rise to any material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 or ERISA or Chapter 43 of the Code for which Diablo may be liable; (vi) there are no Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders) pending or threatened involving such Plans or the assets of such Plans, and, to Diablo's knowledge, no facts exist which could give rise to any such Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders); (vii) no such Plan is subject to Title IV of ERISA, or, if subject, there have been no "report able events" (as described in Section 4043 of ERISA), and no steps have been taken to terminate any such Plan; (viii) all group health Plans of Diablo have been operated in compliance in all material respects with the group health plan continuation coverage requirements of COBRA; (ix) actuarially adequate accruals for all obligations under the Plans are reflected in the most recent balance sheet forming part of the Diablo Financial Statements and such obligations include a pro rata amount of the contributions which would otherwise have been made in accordance with past practices for the Plan years which include the Closing Date; (x) neither Diablo nor any of its respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA or any similar Applicable Law that would subject Diablo or any of its respective directors, officers or employees to material liability under ERISA or any similar Applicable Law; (xi) no such Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code had an accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied, nor would have had an accumulated funding deficiency on such date if such year were the first year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied; (xii) no material liability to the PBGC has been or is expected by Diablo to be incurred by Diablo with respect to any Plan, and there has been no event or condition which presents a material risk of termination of any Plan by the PBGC; (xiii) except as set forth in Section 3.12(xiii) of the Diablo Disclosure Schedule, Diablo is not and never has been a party to any Multiemployer Plan or made contributions to any such Plan; (xiv) except as set forth in Section 3.12(a)(xiv) of the Diablo Disclosure Schedule (which entry, if applicable, shall indicate the present value of accumulated plan liabilities calculated in a manner consistent with FAS 106 and actual annual expense for such benefits for each of the last two (2) years) and pursuant to the provisions of COBRA, Diablo does not maintain any Plan that provides benefits described in Section 3(1) of ERISA, except as the provisions of COBRA may apply, to any former employees or retirees of Diablo; and (xv) Diablo has made available to ATS a copy of the two most recently filed Federal Form 5500 series and accountant's opinion, if applicable, for each Plan (and the two most recent actuarial valuation reports for each Plan, if any, that is subject to Title IV of ERISA), and all information provided by Diablo to any actuary in connection with the preparation of any such actuarial valuation report was true, accurate and complete in all material respects. (b) The execution, delivery and performance by Diablo of this Agreement and the Collateral Documents executed or required to be executed pursuant hereto and thereto will not involve any prohibited transaction within the meaning of ERISA or Section 4975 of the Code.

Employee Retirement Income Security Act of 1974. (a) Diablo American (which for purposes of this Section 4.9 shall include any ERISA Affiliate) is not making currently sponsors, maintains and contributes only to the Plans and Benefit Arrangements set forth in Section 4.9(a) of the American Disclosure Schedule. American has delivered or made available to Mergeparty true, complete and correct copies of (1) each Plan and Benefit Arrangement (or, in the case of any contribution to or sponsoring, and has not at any time since its organization made any contribution to or sponsored, any Plan unwritten Plans or Benefit ArrangementArrangements, except reasonable descriptions thereof), (2) the two most recent annual reports on Form 5500 (including all schedules and attachments thereto) filed with the Internal Revenue Service with respect to each Plan (if any such report was required by Applicable Law), (3) the most recent summary plan description (or similar document) for each Plan for which such a summary plan description is required by Applicable Law or was otherwise provided to plan participants or beneficiaries and (4) each trust agreement and insurance or annuity contract or other funding or financing arrangement relating to any Plan. To the knowledge of American, each such Form 5500 and each such summary plan description (or similar document) does not, as of the date hereof, contain any material misstatements. Except as set forth in Section 3.12(a4.9(a) of the Diablo American Disclosure Schedule. As , as to all Plans and Benefit Arrangements listed in Section 3.12(a4.9(a) of the Diablo American Disclosure Schedule: (i) all such Plans and Benefit Arrangements comply and have been administered in form and in operation in accordance with their respective terms, and with all Applicable Laws Laws, in all material respects, and Diablo American has not received any notice from any Authority questioning disputing or challenging investigating such compliance; (ii) all such Plans maintained or previously maintained by Diablo American that are or were intended to comply with Sections 401 and 501 of the Code comply and complied in form and in operation all material respects with all applicable requirements of such sections, and no event Event has occurred which is known to American which will or could give rise to disqualification of any such Plan under such sections or to a tax under Section 511 of the Code and each such Plan has been the subject of a determination letter from the Internal Revenue Service to the effect that such Plan and related trust is qualified and exempt from Federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code; no such determination letter has been revoked, and, to the knowledge of American, revocation has not been threatened. American has delivered or made available to Mergeparty a copy of the most recent determination letter received with respect to each Plan for which such a letter has been issued, as well as a copy of any pending application for a determination letter. American has also provided or made available to Mergeparty a list of all Plan amendments as to which a favorable determination letter has not yet been received; (iii) none of the assets of any such Plan are invested in employer securities or employer real property; (iv) there have been no "prohibited transactions" (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any such Plan and Diablo has not otherwise engaged in any prohibited transaction; (v) there have been no acts or omissions by Diablo which have given rise to or may give rise to any material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 or ERISA or Chapter 43 of the Code for which Diablo may be liable; (vi) there are no Claims (other than routine claims Claims for benefits or actions seeking qualified domestic relations orders) pending or or, to American's knowledge, threatened involving such Plans or the assets of such Plans, and, to DiabloAmerican's knowledge, no facts exist which could are reasonably likely to give rise to any such Claims (other than routine claims Claims for benefits or actions seeking qualified domestic relations orders); (viiv) no such Plan is subject to Title IV of ERISA, or, if subject, there have been and American has no "report able events" (as described in Section 4043 of ERISA), and no steps have been taken to terminate any such Planactual or potential liability thereunder; (viiivi) all group health Plans of Diablo American have been operated in compliance in all material respects with the group health plan continuation coverage requirements of COBRA; (ix) actuarially adequate accruals for all obligations under the Plans are reflected in the most recent balance sheet forming part of the Diablo Financial Statements and such obligations include a pro rata amount of the contributions which would otherwise have been made in accordance with past practices for the Plan years which include the Closing Date; (xvii) neither Diablo nor American nor, to its knowledge, any of its respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA or any similar Applicable Law that would subject Diablo American or any of its respective directors, officers or employees to material liability under ERISA or any similar Applicable Law; (xiviii) no such Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code had an accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied, nor would have had an accumulated funding deficiency on such date if such year were the first year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied; (xii) no material liability to the PBGC has been or is expected by Diablo to be incurred by Diablo with respect to any Plan, and there has been no event or condition which presents a material risk of termination of any Plan by the PBGC; (xiii) except as set forth in Section 3.12(xiii) of the Diablo Disclosure Schedule, Diablo American is not and never has been a party to any Multiemployer Plan or made contributions to any such Plan; (xivix) except as set forth in Section 3.12(a)(xiv) of the Diablo Disclosure Schedule (which entry, if applicable, shall indicate the present value of accumulated plan liabilities calculated in a manner consistent with FAS 106 and actual annual expense for such benefits for each of the last two (2) years) American Financial Statements and pursuant to the provisions of COBRA, Diablo American does not maintain any Plan that provides benefits described in Section 3(1) of ERISAfor post-retirement medical or life insurance benefits, and American does not have any obligation or liability with respect to any such Plan previously maintained by it, except as the provisions of COBRA may apply, apply to any former employees or retirees of Diablo; andAmerican; (xvx) Diablo has made available to ATS a copy of the two most recently filed Federal Form 5500 series and accountant's opinion, if applicable, for each Plan (and the two most recent actuarial valuation reports for each Plan, if any, that is subject to Title IV of ERISA)all material contributions to, and all information provided by Diablo to any actuary in connection with material payments from, the preparation of any such actuarial valuation report was true, accurate Plans and complete in all material respects. (b) The execution, delivery and performance by Diablo of this Agreement and the Collateral Documents executed or Benefit Arrangements that may have been required to be executed pursuant hereto made in accordance with the terms of the Plans and thereto Benefit Arrangements, and any applicable collective bargaining agreement, have been made. All such contributions to, and payments from, the Plans and Benefit Arrangements, except those payments to be made from a trust qualified under Section 401(a) of the Code, for any period ending before the Closing Date that are not yet, but will not involve any be, required to be made, will be properly accrued and reflected in the Closing Balance Sheet; (xi) (1) no "prohibited transaction within the meaning of ERISA or transaction" (as defined in Section 4975 of the Code.Code or Section 406 of ERISA) has occurred that involves the assets of any Plan; (2) no prohibited transaction has occurred that could subject American, any of its employees, or, to the knowledge of American, a trustee, administrator or other fiduciary of any trust created under any Plan to the tax or sanctions on prohibited transactions imposed by Section 4975 of the Code or Title I of ERISA; (3) none of American, any of its ERISA Affiliates or, to the knowledge of American, any trustee, administrator or other fiduciary of any Plan or any agent of any of the foregoing has engaged in any transaction or acted in a manner that could, or has failed to act so as to, subject American or any trustee, administrator or other fiduciary to any liability for breach of fiduciary duty under ERISA or any other Applicable Law;

Employee Retirement Income Security Act of 1974. (a) Diablo Meridian (which for purposes of this Section shall include any ERISA Affiliate) is has not making any contribution to or sponsoring, been and has not made at any time since its organization made any contribution to or sponsored, any Plans and has not sponsored any Plan or Benefit Arrangement, Arrangement except as set forth in Section 3.12(a) of the Diablo Meridian Disclosure Schedule. As to all Plans and Benefit Arrangements listed in Section 3.12(a) of the Diablo Meridian Disclosure Schedule: (i) all such Plans and Benefit Arrangements comply and have been administered in form and in operation with all Applicable Laws in all material Material respects, and Diablo Meridian has not received any notice from any Authority questioning or challenging such compliance; (ii) all such Plans maintained or previously maintained by Diablo Meridian that are or were intended to comply with Sections 401 and 501 of the Code comply and complied in form and in operation with all applicable requirements of such sections, and no event has occurred which will or could give rise to disqualification of any such Plan under such sections or to a tax under Section 511 of the Code; (iii) none of the assets of any such Plan are invested in employer securities or employer real property; (iv) there have been no "prohibited transactions" (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any such Plan and Diablo Meridian has not otherwise engaged in any prohibited transaction; (v) there have been no acts or omissions by Diablo Meridian which have given rise to or may give rise to any material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 or ERISA or Chapter 43 of the Code for which Diablo Meridian may be liable; (vi) there are no Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders) pending or threatened involving such Plans or the assets of such Plans, and, to DiabloMeridian's knowledge, no facts exist which could give rise to any such Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders); (vii) no such Plan is subject to Title IV of ERISA, or, if subject, there have been no "report able reportable events" (as described in Section 4043 of ERISA), and no steps have been taken to terminate any such Plan; (viii) all group health Plans of Diablo Meridian have been operated in compliance in all material Material respects with the group health plan continuation coverage requirements of COBRA; (ix) actuarially adequate accruals for all obligations under the Plans are reflected in the most recent balance sheet forming part of the Diablo Meridian Financial Statements and such obligations include a pro rata amount of the contributions which would otherwise have been made in accordance with past practices for the Plan years which include the Closing Date; (x) neither Diablo Meridian nor any of its respective directors, officerspartners, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA or any similar Applicable Law that would subject Diablo Meridian or any of its respective directors, officers or employees to material Material liability under ERISA or any similar Applicable Law; (xi) no such Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code had an accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied, nor would have had an accumulated funding deficiency on such date if such year were the first year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied; (xii) no material Material liability to the PBGC has been or is expected by Diablo Meridian to be incurred by Diablo Meridian with respect to any Plan, and there has been no event or condition which presents a material risk of termination of any Plan by the PBGC; (xiii) except as set forth in Section 3.12(xiii) of the Diablo Disclosure Schedule, Diablo Meridian is not and never has been a party to any Multiemployer Plan or made contributions to any such Plan; (xiv) except as set forth in Section 3.12(a)(xiv) of the Diablo Meridian Disclosure Schedule (which entry, if applicable, shall indicate the present value of accumulated plan liabilities calculated in a manner consistent with FAS 106 and actual annual expense for such benefits for each of the last two (2) years) and pursuant to the provisions of COBRA, Diablo Meridian does not maintain any Plan that provides benefits described in Section 3(1) of ERISA, except as the provisions of COBRA may apply, to any former employees or retirees of DiabloMeridian; and (xv) Diablo Meridian has made available to ATS a copy of the two most recently filed Federal Form 5500 series and accountant's opinion, if applicable, for each Plan (and the two most recent actuarial valuation reports for each Plan, if any, that is subject to Title IV of ERISA), and all information provided by Diablo Meridian to any actuary in connection with the preparation of any such actuarial valuation report was true, accurate and complete in all material respects. (b) The execution, delivery and performance by Diablo Meridian of this Agreement and the Collateral Documents executed or required to be executed pursuant hereto and thereto will not involve any prohibited transaction within the meaning of ERISA or Section 4975 of the Code.

Employee Retirement Income Security Act of 1974. (a) Diablo OPM (which for purposes of this Section shall include any ERISA Affiliate) is not making any contribution to or sponsoring, and has not at any time since its organization made any contribution to or sponsored, any Plan or Benefit Arrangement, except as set forth in Section 3.12(a) of the Diablo OPM Disclosure Schedule. As to all Plans and Benefit Arrangements listed in Section 3.12(a) of the Diablo OPM Disclosure Schedule: (i) all such Plans and Benefit Arrangements comply and have been administered in form and in operation with all Applicable Laws in all material respects, and Diablo OPM has not received any notice from any Authority questioning or challenging such compliance; (ii) all such Plans maintained or previously maintained by Diablo OPM that are or were intended to comply with Sections 401 and 501 of the Code comply and complied in form and in operation with all applicable requirements of such sections, and no event has occurred which will or could give rise to disqualification of any such Plan under such sections or to a tax under Section 511 of the Code; (iii) none of the assets of any such Plan are invested in employer securities or employer real property; (iv) there have been no "prohibited transactions" (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any such Plan and Diablo OPM has not otherwise engaged in any prohibited transaction; (v) there have been no acts or omissions by Diablo OPM which have given rise to or may give rise to any material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 or ERISA or Chapter 43 of the Code for which Diablo OPM may be liable; (vi) there are no Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders) pending or threatened involving such Plans or the assets of such Plans, and, to Diablo's Stockholders' knowledge, no facts exist which could give rise to any such Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders); (vii) no such Plan is subject to Title IV of ERISA, or, if subject, there have been no "report able events" (as described in Section 4043 of ERISA), and no steps have been taken to terminate any such Plan; (viii) all group health Plans of Diablo OPM have been operated in compliance in all material respects with the group health plan continuation coverage requirements of COBRA; (ix) actuarially adequate accruals for all obligations under the Plans are reflected in the most recent balance sheet forming part of the Diablo OPM Financial Statements and such obligations include a pro rata amount of the contributions which would otherwise have been made in accordance with past practices for the Plan years which include the Closing Date; (x) neither Diablo OPM nor any of its respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA or any similar Applicable Law that would subject Diablo OPM or any of its respective directors, officers or employees to material liability under ERISA or any similar Applicable Law; (xi) no such Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code had an accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied, nor would have had an accumulated funding deficiency on such date if such year were the first year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied; (xii) no material liability to the PBGC has been or is expected by Diablo OPM to be incurred by Diablo OPM with respect to any Plan, and there has been no event or condition which presents a material risk of termination of any Plan by the PBGC; (xiii) except as set forth in Section 3.12(xiii) of the Diablo Disclosure Schedule, Diablo OPM is not and never has been a party to any Multiemployer Plan or made contributions to any such Plan; (xiv) except as set forth in Section 3.12(a)(xiv) of the Diablo OPM Disclosure Schedule (which entry, if applicable, shall indicate the present value of accumulated plan liabilities calculated in a manner consistent with FAS 106 and actual annual expense for such benefits for each of the last two (2) years) and pursuant to the provisions of COBRA, Diablo OPM does not maintain any Plan that provides benefits described in Section 3(1) of ERISA, except as the provisions of COBRA may apply, to any former employees or retirees of DiabloOPM; and (xv) Diablo OPM has made available to ATS a copy of the two most recently filed Federal Form 5500 series and accountant's opinion, if applicable, for each Plan (and the two most recent actuarial valuation reports for each Plan, if any, that is subject to Title IV of ERISA), and all information provided by Diablo OPM to any actuary in connection with the preparation of any such actuarial valuation report was true, accurate and complete in all material respects. (b) The execution, delivery and performance by Diablo OPM of this Agreement and the Collateral Documents executed or required to be executed pursuant hereto and thereto will not involve any prohibited transaction within the meaning of ERISA or Section 4975 of the Code.

Employee Retirement Income Security Act of 1974. (a) Diablo Meridian (which for purposes of this Section shall include any ERISA Affiliate) is has not making any contribution to or sponsoring, been and has not made at any time since its organization made any contribution to or sponsored, any Plans and has not sponsored any Plan or Benefit Arrangement, Arrangement except as set forth in Section 3.12(a) of the Diablo Meridian Disclosure Schedule. As to all Plans and Benefit Arrangements listed in Section 3.12(a) of the Diablo Meridian Disclosure Schedule: (i) all such Plans and Benefit Arrangements comply and have been administered in form and in operation with all Applicable Laws in all material Material respects, and Diablo Meridian has not received any notice from any Authority questioning or challenging such compliance; (ii) all such Plans maintained or previously maintained by Diablo Meridian that are or were intended to comply with Sections 401 and 501 of the Code comply and complied in form and in operation with all applicable requirements of such sections, and no event has occurred which will or could give rise to disqualification of any such Plan under such sections or to a tax under Section 511 of the Code; (iii) none of the assets of any such Plan are invested in employer securities or employer real property; (iv) there have been no "prohibited transactions" (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any such Plan and Diablo Meridian has not otherwise engaged in any prohibited transaction; (v) there have been no acts or omissions by Diablo Meridian which have given rise to or may give rise to any material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 or ERISA or Chapter 43 of the Code for which Diablo Meridian may be liable; (vi) there are no Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders) pending or threatened involving such Plans or the assets of such Plans, and, to DiabloMeridian's knowledge, no facts exist which could give rise to any such Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders); (vii) no such Plan is subject to Title IV of ERISA, or, if subject, there have been no "report able reportable events" (as described in Section 4043 of ERISA), and no steps have been taken to terminate any such Plan; (viii) all group health Plans of Diablo Meridian have been operated in compliance in all material Material respects with the group health plan continuation coverage requirements of COBRA; (ix) actuarially adequate accruals for all obligations under the Plans are reflected in the most recent balance sheet forming part of the Diablo Meridian Financial Statements and such obligations include a pro rata amount of the contributions which would otherwise have been made in accordance with past practices for the Plan years which include the Closing Date; (x) neither Diablo Meridian nor any of its respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA or any similar Applicable Law that would subject Diablo Meridian or any of its respective directors, officers or employees to material Material liability under ERISA or any similar Applicable Law; (xi) no such Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code had an accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied, nor would have had an accumulated funding deficiency on such date if such year were the first year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied; (xii) no material Material liability to the PBGC has been or is expected by Diablo Meridian to be incurred by Diablo Meridian with respect to any Plan, and there has been no event or condition which presents a material risk of termination of any Plan by the PBGC; (xiii) except as set forth in Section 3.12(xiii) of the Diablo Disclosure Schedule, Diablo Meridian is not and never has been a party to any Multiemployer Plan or made contributions to any such Plan; (xiv) except as set forth in Section 3.12(a)(xiv) of the Diablo Meridian Disclosure Schedule (which entry, if applicable, shall indicate the present value of accumulated plan liabilities calculated in a manner consistent with FAS 106 and actual annual expense for such benefits for each of the last two (2) years) and pursuant to the provisions of COBRA, Diablo Meridian does not maintain any Plan that provides benefits described in Section 3(1) of ERISA, except as the provisions of COBRA may apply, to any former employees or retirees of DiabloMeridian; and (xv) Diablo Meridian has made available to ATS a copy of the two most recently filed Federal Form 5500 series and accountant's opinion, if applicable, for each Plan (and the two most recent actuarial valuation reports for each Plan, if any, that is subject to Title IV of ERISA), and all information provided by Diablo Meridian to any actuary in connection with the preparation of any such actuarial valuation report was true, accurate and complete in all material respects. (b) The execution, delivery and performance by Diablo Meridian of this Agreement and the Collateral Documents executed or required to be executed pursuant hereto and thereto will not involve any prohibited transaction within the meaning of ERISA or Section 4975 of the Code.

Employee Retirement Income Security Act of 1974. (a) Diablo Meridian (which for purposes of this Section shall include any ERISA Affiliate) is has not making any contribution to or sponsoring, been and has not made at any time since its organization made any contribution to or sponsored, any Plans and has not sponsored any Plan or Benefit Arrangement, Arrangement except as set forth in Section 3.12(a) of the Diablo Meridian Disclosure Schedule. As to all Plans and Benefit Arrangements listed in Section 3.12(a) of the Diablo Meridian Disclosure Schedule: (i) all such Plans and Benefit Arrangements comply and have been administered in form and in operation with all Applicable Laws in all material Material respects, and Diablo Meridian has not received any notice from any Authority questioning or challenging such compliance; (ii) all such Plans maintained or previously maintained by Diablo Meridian that are or were intended to comply with Sections 401 and 501 of the Code comply and complied in form and in operation with all applicable requirements of such sections, and no event has occurred which will or could give rise to disqualification of any such Plan under such sections or to a tax under Section 511 of the Code; (iii) none of the assets of any such Plan are invested in employer securities or employer real property; (iv) there have been no "prohibited transactions" (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any such Plan and Diablo Meridian has not otherwise engaged in any prohibited transaction; (v) there have been no acts or omissions by Diablo Meridian which have given rise to or may give rise to any material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 or ERISA or Chapter 43 of the Code for which Diablo Meridian may be liable; (vi) there are no Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders) pending or threatened involving such Plans or the assets of such Plans, and, to DiabloMeridian's knowledge, no facts exist which could give rise to any such Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders); (vii) no such Plan is subject to Title IV of ERISA, or, if subject, there have been no "report able reportable events" (as described in Section 4043 of ERISA), and no steps have been taken to terminate any such Plan; (viii) all group health Plans of Diablo have been operated in compliance in all material respects with the group health plan continuation coverage requirements of COBRA; (ix) actuarially adequate accruals for all obligations under the Plans are reflected in the most recent balance sheet forming part of the Diablo Financial Statements and such obligations include a pro rata amount of the contributions which would otherwise have been made in accordance with past practices for the Plan years which include the Closing Date; (x) neither Diablo nor any of its respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA or any similar Applicable Law that would subject Diablo or any of its respective directors, officers or employees to material liability under ERISA or any similar Applicable Law; (xi) no such Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code had an accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied, nor would have had an accumulated funding deficiency on such date if such year were the first year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied; (xii) no material liability to the PBGC has been or is expected by Diablo to be incurred by Diablo with respect to any Plan, and there has been no event or condition which presents a material risk of termination of any Plan by the PBGC; (xiii) except as set forth in Section 3.12(xiii) of the Diablo Disclosure Schedule, Diablo is not and never has been a party to any Multiemployer Plan or made contributions to any such Plan; (xiv) except as set forth in Section 3.12(a)(xiv) of the Diablo Disclosure Schedule (which entry, if applicable, shall indicate the present value of accumulated plan liabilities calculated in a manner consistent with FAS 106 and actual annual expense for such benefits for each of the last two (2) years) and pursuant to the provisions of COBRA, Diablo does not maintain any Plan that provides benefits described in Section 3(1) of ERISA, except as the provisions of COBRA may apply, to any former employees or retirees of Diablo; and (xv) Diablo has made available to ATS a copy of the two most recently filed Federal Form 5500 series and accountant's opinion, if applicable, for each Plan (and the two most recent actuarial valuation reports for each Plan, if any, that is subject to Title IV of ERISA), and all information provided by Diablo to any actuary in connection with the preparation of any such actuarial valuation report was true, accurate and complete in all material respects. (b) The execution, delivery and performance by Diablo of this Agreement and the Collateral Documents executed or required to be executed pursuant hereto and thereto will not involve any prohibited transaction within the meaning of ERISA or Section 4975 of the Code.

Employee Retirement Income Security Act of 1974. (a) Diablo American (which for purposes of this Section 4.9 shall include any ERISA Affiliate) is not making currently sponsors, maintains and contributes only to the Plans and Benefit Arrangements set forth in Section 4.9(a) of the American Disclosure Schedule. American has delivered or made available to Mergeparty true, complete and correct copies of (1) each Plan and Benefit Arrangement (or, in the case of any contribution to or sponsoring, and has not at any time since its organization made any contribution to or sponsored, any Plan unwritten Plans or Benefit ArrangementArrangements, except reasonable descriptions thereof), (2) the two most recent annual reports on Form 5500 (including all schedules and attachments thereto) filed with the Internal Revenue Service with respect to each Plan (if any such report was required by Applicable Law), (3) the most recent summary plan description (or similar document) for each Plan for which such a summary plan description is required by Applicable Law or was otherwise provided to plan participants or beneficiaries and (4) each trust agreement and insurance or annuity contract or other funding or financing arrangement relating to any Plan. To the knowledge of American, each such Form 5500 and each such summary plan description (or similar document) does not, as of the date hereof, contain any material misstatements. Except as set forth in Section 3.12(a4.9(a) of the Diablo American Disclosure Schedule. As , as to all Plans and Benefit Arrangements listed in Section 3.12(a4.9(a) of the Diablo American Disclosure Schedule: (i) all such Plans and Benefit Arrangements comply and have been administered in form and in operation in accordance with their respective terms, and with all Applicable Laws Laws, in all material respects, and Diablo American has not received any notice from any Authority questioning disputing or challenging investigating such compliance; (ii) all such Plans maintained or previously maintained by Diablo American that are or were intended to comply with Sections 401 and 501 of the Code comply and complied in form and in operation all material respects with all applicable requirements of such sections, and no event Event has occurred which is known to American which will or could give rise to disqualification of any such Plan under such sections or to a tax under Section 511 of the Code and each such Plan has been the subject of a determination letter from the Internal Revenue Service to the effect that such Plan and related trust is qualified and exempt from Federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code; no such determination letter has been revoked, and, to the knowledge of American, revocation has not been threatened. American has delivered or made available to Mergeparty a copy of the most recent determination letter received with respect to each Plan for which such a letter has been issued, as well as a copy of any pending application for a determination letter. American has also provided or made available to Mergeparty a list of all Plan amendments as to which a favorable determination letter has not yet been received; (iii) none of the assets of any such Plan are invested in employer securities or employer real property; (iv) there have been no "prohibited transactions" (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any such Plan and Diablo has not otherwise engaged in any prohibited transaction; (v) there have been no acts or omissions by Diablo which have given rise to or may give rise to any material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 or ERISA or Chapter 43 of the Code for which Diablo may be liable; (vi) there are no Claims (other than routine claims Claims for benefits or actions seeking qualified quali fied domestic relations orders) pending or or, to American's knowledge, threatened involving such Plans or the assets of such Plans, and, to DiabloAmerican's knowledge, no facts exist which could are reasonably likely to give rise to any such Claims (other than routine claims Claims for benefits or actions seeking qualified domestic relations orders); (viiv) no such Plan is subject to Title IV of ERISA, or, if subject, there have been and American has no "report able events" (as described in Section 4043 of ERISA), and no steps have been taken to terminate any such Planactual or potential liability thereunder; (viiivi) all group health Plans of Diablo American have been operated in compliance in all material respects with the group health plan continuation coverage requirements of COBRA; (ix) actuarially adequate accruals for all obligations under the Plans are reflected in the most recent balance sheet forming part of the Diablo Financial Statements and such obligations include a pro rata amount of the contributions which would otherwise have been made in accordance with past practices for the Plan years which include the Closing Date; (xvii) neither Diablo nor American nor, to its knowledge, any of its respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA or any similar Applicable Law that would subject Diablo American or any of its respective directors, officers or employees to material liability under ERISA or any similar Applicable Law; (xiviii) no such Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code had an accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied, nor would have had an accumulated funding deficiency on such date if such year were the first year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied; (xii) no material liability to the PBGC has been or is expected by Diablo to be incurred by Diablo with respect to any Plan, and there has been no event or condition which presents a material risk of termination of any Plan by the PBGC; (xiii) except as set forth in Section 3.12(xiii) of the Diablo Disclosure Schedule, Diablo American is not and never has been a party to any Multiemployer Plan or made contributions to any such Plan; (xivix) except as set forth in Section 3.12(a)(xiv) of the Diablo Disclosure Schedule (which entry, if applicable, shall indicate the present value of accumulated plan liabilities calculated in a manner consistent with FAS 106 and actual annual expense for such benefits for each of the last two (2) years) American Financial Statements and pursuant to the provisions of COBRA, Diablo American does not maintain any Plan that provides benefits described in Section 3(1) of ERISAfor post-retirement medical or life insurance benefits, and American does not have any obligation or liability with respect to any such Plan previously maintained by it, except as the provisions of COBRA may apply, apply to any former employees or retirees of Diablo; andAmerican; (xvx) Diablo has made available to ATS a copy of the two most recently filed Federal Form 5500 series and accountant's opinion, if applicable, for each Plan (and the two most recent actuarial valuation reports for each Plan, if any, that is subject to Title IV of ERISA)all material contributions to, and all information provided by Diablo to any actuary in connection with material payments from, the preparation of any such actuarial valuation report was true, accurate Plans and complete in all material respects. (b) The execution, delivery and performance by Diablo of this Agreement and the Collateral Documents executed or Benefit Arrangements that may have been required to be executed pursuant hereto made in accordance with the terms of the Plans and thereto Benefit Arrangements, and any applicable collective bargaining agreement, have been made. All such contributions to, and payments from, the Plans and Benefit Arrangements, except those payments to be made from a trust qualified under Section 401(a) of the Code, for any period ending before the Closing Date that are not yet, but will not involve any be, required to be made, will be properly accrued and reflected in the Closing Balance Sheet; (xi) (1) no "prohibited transaction within the meaning of ERISA or transaction" (as defined in Section 4975 of the Code.Code or Section 406 of ERISA) has occurred that involves the assets of any Plan; (2) no prohibited transaction has occurred that could subject American, any of its employees, or, to the knowledge of American, a trustee, administrator or other fiduciary of any trust created under any Plan to the tax or sanctions on prohibited transactions imposed by Section 4975 of the Code or Title I of ERISA; (3) none of American, any of its ERISA Affiliates or, to the knowledge of American, any trustee, administrator or other fiduciary of any Plan or any agent of any of the foregoing has engaged in any transaction or acted in a manner that could, or has failed to act so as to, subject American or any trustee, administrator or other fiduciary to any liability for breach of fiduciary duty under ERISA or any other Applicable Law;

Employee Retirement Income Security Act of 1974. (a) Diablo Meridian (which for purposes of this Section shall include any ERISA Affiliate) is has not making any contribution to or sponsoring, been and has not made at any time since its organization made any contribution to or sponsored, any Plans and has not sponsored any Plan or Benefit Arrangement, Arrangement except as set forth in Section 3.12(a) of the Diablo Meridian Disclosure Schedule. As to all Plans and Benefit Arrangements listed in Section 3.12(a) of the Diablo Meridian Disclosure Schedule: (i) all such Plans and Benefit Arrangements comply and have been administered in form and in operation with all Applicable Laws in all material Material respects, and Diablo Meridian has not received any notice from any Authority questioning or challenging such compliance; (ii) all such Plans maintained or previously maintained by Diablo Meridian that are or were intended to comply with Sections 401 and 501 of the Code comply and complied in form and in operation with all applicable requirements of such sections, and no event has occurred which will or could give rise to disqualification of any such Plan under such sections or to a tax under Section 511 of the Code; (iii) none of the assets of any such Plan are invested in employer securities or employer real property; (iv) there have been no "prohibited transactions" (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any such Plan and Diablo Meridian has not otherwise engaged in any prohibited transaction; (v) there have been no acts or omissions by Diablo Meridian which have given rise to or may give rise to any material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 or ERISA or Chapter 43 of the Code for which Diablo Meridian may be liable; (vi) there are no Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders) pending or threatened involving such Plans or the assets of such Plans, and, to DiabloMeridian's knowledge, no facts exist which could give rise to any such Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders); (vii) no such Plan is subject to Title IV of ERISA, or, if subject, there have been no "report able reportable events" (as described in Section 4043 of ERISA), and no steps have been taken to terminate any such Plan; (viii) all group health Plans of Diablo Meridian have been operated in compliance in all material Material respects with the group health plan continuation coverage requirements of COBRA; (ix) actuarially adequate accruals for all obligations under the Plans are reflected in the most recent balance sheet forming part of the Diablo Meridian Financial Statements and such obligations include a pro rata amount of the contributions which would otherwise have been made in accordance with past practices for the Plan years which include the Closing Date; (x) neither Diablo Meridian nor any of its respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA or any similar Applicable Law that would subject Diablo Meridian or any of its respective directors, officers or employees to material Material liability under ERISA or any similar Applicable Law; (xi) no such Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code had an accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied, nor would have had an accumulated funding deficiency on such date if such year were the first year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied; (xii) no material Material liability to the PBGC has been or is expected by Diablo Meridian to be incurred in curred by Diablo Meridian with respect to any Plan, and there has been no event or condition which presents a material risk of termination of any Plan by the PBGC; (xiii) except as set forth in Section 3.12(xiii) of the Diablo Disclosure Schedule, Diablo Meridian is not and never has been a party to any Multiemployer Plan or made contributions to any such Plan; (xiv) except as set forth in Section 3.12(a)(xiv) of the Diablo Meridian Disclosure Schedule (which entry, if applicable, shall indicate the present value of accumulated plan liabilities calculated in a manner consistent with FAS 106 and actual annual expense for such benefits for each of the last two (2) years) and pursuant to the provisions of COBRA, Diablo Meridian does not maintain any Plan that provides benefits described in Section 3(1) of ERISA, except as the provisions of COBRA may apply, to any former employees or retirees of DiabloMeridian; and (xv) Diablo Meridian has made available to ATS a copy of the two most recently filed Federal Form 5500 series and accountant's opinion, if applicable, for each Plan (and the two most recent actuarial valuation reports for each Plan, if any, that is subject to Title IV of ERISA), and all information provided by Diablo Meridian to any actuary in connection with the preparation of any such actuarial valuation report was true, accurate and complete in all material respects. (b) The execution, delivery and performance by Diablo Meridian of this Agreement and the Collateral Documents executed or required to be executed pursuant hereto and thereto will not involve any prohibited transaction within the meaning of ERISA or Section 4975 of the Code.

Employee Retirement Income Security Act of 1974. (a) Diablo A. The Company (which for purposes of this Section 3.15 shall include any Subsidiary or ERISA AffiliateAffiliate with respect to any Plan subject to Title IV of ERISA) is does not making contribute to any contribution to Plan or sponsoring, sponsor any Plan or Benefit Arrangement and has not at any time since its organization made any contribution contributed to or sponsored, sponsored any Plan or Benefit Arrangement, except as set forth in Section 3.12(a3.15(A) of the Diablo Company Disclosure Schedule. As to all Plans and Benefit Arrangements listed in Section 3.12(a3.15(A) of the Diablo Company Disclosure Schedule, and except as disclosed in such Section 3.15(A) of the Company Disclosure Schedule: (i) all such Plans and Benefit Arrangements comply and have been administered in all material respects in form and in operation with all Applicable Laws in all material respectsLaws, and Diablo the Company has not received any outstanding notice from any Authority questioning or challenging such compliance; (ii) all such Plans maintained or previously maintained by Diablo the Company that are or were intended to comply with Sections Section 401 and 501 of the Code comply and complied in form and in operation with all applicable requirements of such sectionsSection, and no event has occurred which will or 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 CodeSection; (iii) none of the assets of any such Plan are invested in employer securities or employer real property; (iv) there have been are no "prohibited transactions" (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any such Plan and Diablo for which the Company has not otherwise engaged in any prohibited transactionliability; (v) there have been no acts or omissions by Diablo which have given rise to or may give rise to any material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 or ERISA or Chapter 43 of the Code for which Diablo may be liable; (vi) there are no Claims (other than routine claims for benefits or actions seeking qualified domestic relations ordersbenefits) pending or threatened involving such Plans or the assets of such Plans, and, to Diablo's knowledge, no facts exist which could give rise to any such Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders); (viivi) no such neither the Company nor any ERISA Affiliate has maintained any Plan that is subject to Title IV of ERISA, or, if subject, there have been no "report able events" (as described in Section 4043 of ERISA), and no steps have been taken to terminate any such Plan; (viiivii) all group health Plans of Diablo have been operated in compliance in all material respects with to the group health plan continuation coverage requirements of COBRA; (ix) actuarially adequate accruals for all obligations under the Plans are reflected in extent that the most recent balance sheet forming part of the Diablo Company Financial Statements and such obligations do not include a pro rata amount of the contributions which would otherwise have been made in accordance with past practices for the Plan years which include the Closing Date, such amounts are set forth in Section 3.15(A) of the Company Disclosure Schedule; (xviii) neither Diablo the Company nor any of its respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA or any similar Applicable Law that would subject Diablo the Company or any of its respective directors, officers or employees to any material liability under ERISA or any similar Applicable LawERISA; (xi) no such Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code had an accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied, nor would have had an accumulated funding deficiency on such date if such year were the first year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied; (xii) no material liability to the PBGC has been or is expected by Diablo to be incurred by Diablo with respect to any Plan, and there has been no event or condition which presents a material risk of termination of any Plan by the PBGC; (xiiiix) except as set forth in Section 3.12(xiii3.15(A) of the Diablo Disclosure Schedule, Diablo is not and never has been a party to any Multiemployer Plan or made contributions to any such Plan; (xiv) except as set forth in Section 3.12(a)(xiv) of the Diablo Company Disclosure Schedule (which entry, if applicable, shall indicate the present value of accumulated plan liabilities calculated in a manner consistent with FAS 106 and actual annual expense for such benefits for each of the last two (2) years) and pursuant to the provisions of COBRA, Diablo does not maintain any the Company maintains no Plan that provides benefits described in Section 3(1) of ERISA, except as the provisions of COBRA may apply, ERISA to any former employees or retirees of Diablothe Company; and (xvx) Diablo the Company has made available to ATS the Buyer a copy of the two most recently filed Federal Form 5500 series and accountant's opinion, if applicable, for each Plan (and the two most recent actuarial valuation reports for each Plan, if any, that . B. The Company is subject to Title IV of ERISA), and all information provided by Diablo not nor ever has been a party to any actuary in connection with the preparation of Multiemployer Plan or made contributions to any such actuarial valuation report was true, accurate and complete in all material respectsplan. (b) The execution, delivery and performance by Diablo of this Agreement and the Collateral Documents executed or required to be executed pursuant hereto and thereto will not involve any prohibited transaction within the meaning of ERISA or Section 4975 of the Code.

Employee Retirement Income Security Act of 1974. (a) Diablo Parent (which for purposes of this Section 5.15 shall include any ERISA AffiliateAffiliate with respect to any Plan subject to Title IV of ERISA) is does not making contribute to any contribution to Plan or sponsoring, and has not at any time since its organization made any contribution to or sponsored, sponsor any Plan or Benefit ArrangementArrangement and has not contributed to or sponsored any Plan or Benefit Arrangement that Parent is required to disclose in its filings with the SEC, except as set forth in Section 3.12(a5.15(a) of the Diablo Parent Disclosure Schedule. As to all such Plans and Benefit Arrangements listed Arrangements, and except as disclosed in such Section 3.12(a5.15(a) of the Diablo Parent Disclosure Schedule: (i) all such Plans and Benefit Arrangements comply and have been administered in form and in operation in all material respects with all Applicable Laws in all material respectsLaws, and Diablo Parent has not received any outstanding notice from any Authority questioning or challenging such compliance; (ii) all such Plans maintained or previously maintained by Diablo Parent that are or were intended to comply with Sections Section 401 and 501 of the Code comply and complied in form and in operation in all material respects with all applicable requirements of such sectionsSection, and no event has occurred which will or 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 CodeSection; (iii) none of the assets of any such Plan are invested in employer securities or employer real property; (iv) there have been are no "prohibited transactions" (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any such Plan and Diablo for which Parent has not otherwise engaged in any prohibited transactionmaterial liability; (v) there have been no acts or omissions by Diablo which have given rise to or may give rise to any material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 or ERISA or Chapter 43 of the Code for which Diablo may be liable; (vi) there are no Claims (other than routine claims for benefits or actions seeking qualified domestic relations ordersbenefits) pending or threatened involving such Plans or the assets of such Plans, and, to Diablo's knowledge, no facts exist which could give rise to any such Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders); (viivi) no such neither Parent nor any ERISA Affiliate has maintained any Plan that is subject to Title IV of ERISA, or, if subject, there have been no "report able events" (as described in Section 4043 of ERISA), and no steps have been taken to terminate any such Plan; (viiivii) all group health Plans of Diablo have been operated in compliance in all material respects with to the group health plan continuation coverage requirements of COBRA; (ix) actuarially adequate accruals for all obligations under the Plans are reflected in extent that the most recent balance sheet forming part of the Diablo Financial Statements and such obligations SEC Reports does not include a pro rata amount of the contributions which would otherwise have been made in accordance with past practices for the Plan years which include the Closing Date, such amounts are set forth in Section 5.15(a) of the Parent Disclosure Schedule; (xviii) neither Diablo Parent has not, nor has any of its respective directors, officers, employees or any other fiduciary has fiduciary, committed any breach of fiduciary responsibility imposed by ERISA or any similar Applicable Law that would subject Diablo Parent or any of its respective directors, officers or employees to any material liability under ERISA or any similar Applicable LawERISA; (xi) no such Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code had an accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied, nor would have had an accumulated funding deficiency on such date if such year were the first year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied; (xii) no material liability to the PBGC has been or is expected by Diablo to be incurred by Diablo with respect to any Plan, and there has been no event or condition which presents a material risk of termination of any Plan by the PBGC; (xiiiix) except as set forth in Section 3.12(xiii5.15(a) of the Diablo Disclosure Schedule, Diablo is not and never has been a party to any Multiemployer Plan or made contributions to any such Plan; (xiv) except as set forth in Section 3.12(a)(xiv) of the Diablo Parent Disclosure Schedule (which entry, if applicable, shall indicate the present value of accumulated plan liabilities calculated in a manner consistent with FAS 106 and actual annual expense for such benefits for each of the last two (2) years) and pursuant to the provisions of COBRA, Diablo Parent does not maintain any Plan that provides benefits described in Section 3(1) of ERISA, except as the provisions of COBRA may apply, ERISA to any former employees or retirees of DiabloParent; and (xvx) Diablo Parent has made available to ATS the Company a copy of the two most recently filed Federal Form 5500 series and accountant's opinion, if applicable, for each Plan (and the two most recent actuarial valuation reports for each Plan, if any, that is subject to Title IV of ERISA), and all information provided by Diablo to any actuary in connection with the preparation of any such actuarial valuation report was true, accurate and complete in all material respects. (b) The execution, delivery and performance by Diablo of this Agreement and the Collateral Documents executed Parent is not nor has it ever been a party to any Multiemployer Plan or required made contributions to be executed pursuant hereto and thereto will not involve any prohibited transaction within the meaning of ERISA or Section 4975 of the Code.such plan. 42

Employee Retirement Income Security Act of 1974. (a) Diablo A. The Company (which for purposes of this Section 3.15 shall include any Subsidiary of the Company or ERISA AffiliateAffiliate with respect to any Plan subject to Title IV of ERISA) is does not making contribute to any contribution to Plan or sponsoring, sponsor any Plan or Benefit Arrangement and has not at any time since its organization made any contribution contributed to or sponsored, sponsored any Plan or Benefit Arrangement, except as set forth in Section 3.12(a3.15(A) of the Diablo Company Disclosure Schedule. As to all Plans and Benefit Arrangements listed in Section 3.12(a3.15(A) of the Diablo Company Disclosure Schedule, and except as disclosed in such Section 3.15(A) of the Company Disclosure Schedule: (i) all such Plans and Benefit Arrangements comply and have been administered in form and in operation with all Applicable Laws in all material respectsLaws, and Diablo the Company has not received any outstanding notice from any Authority questioning or challenging such compliance, and to the knowledge of the Company, there is no threatened proceeding or investigation involving any Plan before the Internal Revenue Service or any other governmental entity; (ii) all such Plans maintained or previously maintained by Diablo the Company that are or were intended to comply with Sections Section 401 and 501 of the Code comply and complied in form and in operation with all applicable requirements of such sectionsSection, and all such Plans have received favorable determination letters from the Internal Revenue Service regarding the qualified status of such Plans, and no event has occurred which will or 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 CodeSection; (iii) none of the assets of any such Plan are invested in employer securities or employer real property; (iv) there have been are no "prohibited transactions" (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any such Plan and Diablo for which the Company has not otherwise engaged in any prohibited transactionliability; (v) there have been no acts or omissions by Diablo which have given rise to or may give rise to any material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 or ERISA or Chapter 43 of the Code for which Diablo may be liable; (vi) there are no Claims (other than routine claims for benefits or actions seeking qualified domestic relations ordersbenefits) pending or threatened involving such the Plans or the assets of such Plans, and, to Diablo's knowledge, no facts exist which could give rise to any such Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders); (viivi) no such neither the Company nor any ERISA Affiliate has maintained any Plan that is subject to Title IV of ERISA, or, if subject, there have been no "report able events" (as described in Section 4043 of ERISA), and no steps have been taken to terminate any such Plan; (viiivii) all group health Plans of Diablo have been operated in compliance in all material respects with to the group health plan continuation coverage requirements of COBRA; (ix) actuarially adequate accruals for all obligations under the Plans are reflected in extent that the most recent balance sheet forming part of the Diablo Company Financial Statements and such obligations does not include a pro rata amount of the contributions which would otherwise have been made in accordance with past practices for the Plan years which include the Initial Closing Date, such amounts are set forth in Section 3.15(A) of the Company Disclosure Schedule; (xviii) neither Diablo the Company nor any of its respective directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA or any similar Applicable Law that would subject Diablo the Company or any of its respective directors, officers or employees to any material liability under ERISA or any similar Applicable LawERISA; (xi) no such Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code had an accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied, nor would have had an accumulated funding deficiency on such date if such year were the first year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied; (xii) no material liability to the PBGC has been or is expected by Diablo to be incurred by Diablo with respect to any Plan, and there has been no event or condition which presents a material risk of termination of any Plan by the PBGC; (xiiiix) except as set forth in Section 3.12(xiii3.15(A) of the Diablo Disclosure Schedule, Diablo is not and never has been a party to any Multiemployer Plan or made contributions to any such Plan; (xiv) except as set forth in Section 3.12(a)(xiv) of the Diablo Company Disclosure Schedule (which entry, if applicable, shall indicate the present value of accumulated plan liabilities calculated in a manner consistent with FAS 106 and actual annual expense for such benefits for each of the last two (2) years) and pursuant to except for the provisions of COBRA, Diablo does not maintain any the Company maintains no Plan that provides benefits described in Section 3(1) of ERISA, except as the provisions of COBRA may apply, ERISA to any former employees or retirees of Diablo; andthe Company; (xvx) Diablo the Company has made available to ATS Windward copies of each Plan and a copy of the two most recently filed Federal Form 5500 series and accountant's opinion, the two most recent nondiscrimination test reports, and any other material agreement or document relating to each Plan, if applicable, for each Plan; and (xi) in accordance with Applicable Law, each Plan (and Benefit Arrangement can be amended or terminated at any time without consent from any party and without liability other than for benefits accrued as of the two most recent actuarial valuation reports for each Plan, if any, that date of amendment or termination. B. Neither the Company nor any ERISA Affiliate is subject to Title IV of ERISA), and all information provided by Diablo nor ever has been a party to any actuary in connection with the preparation of Multiemployer Plan or made contributions to any such actuarial valuation report was true, accurate and complete in all material respectsplan. (b) The execution, delivery and performance by Diablo of this Agreement and the Collateral Documents executed or required to be executed pursuant hereto and thereto will not involve any prohibited transaction within the meaning of ERISA or Section 4975 of the Code.

Employee Retirement Income Security Act of 1974. (a) Diablo The Company (which for purposes of this Section 3.15 shall include any Subsidiary or ERISA AffiliateAffiliate with respect to any Plan subject to Title IV of ERISA) is does not making contribute to any contribution to Plan or sponsoring, sponsor any Plan or Benefit Arrangement and has not at any time since its organization made any contribution contributed to or sponsored, sponsored any Plan or Benefit Arrangement, except as set forth in Section 3.12(a3.15(a) of the Diablo Company Disclosure Schedule. As to all Plans and Benefit Arrangements listed in Section 3.12(a3.15(a) of the Diablo Company Disclosure Schedule, and except as disclosed in such Section 3.15(a) of the Company Disclosure Schedule: (i) all such Plans and Benefit Arrangements comply and have been administered in form and in operation in all material respects with all Applicable Laws in all material respectsLaws, and Diablo the Company has not received any outstanding notice from any Authority questioning or challenging such compliance; (ii) all such Plans maintained or previously maintained by Diablo the Company that are or were intended to comply with Sections Section 401 and 501 of the Code comply and complied in form and in operation in all material respects with all applicable requirements of such sectionsSection, and no event has occurred which will or 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 CodeSection; (iii) except for the ESOP, none of the assets of any such Plan are invested in employer securities or employer real property; (iv) there have been no "prohibited transactions" (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any such Plan and Diablo for which the Company has not otherwise engaged in any prohibited transactionmaterial liability; (v) there have been no acts or omissions by Diablo which have given rise to or may give rise to any material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 or ERISA or Chapter 43 of the Code for which Diablo may be liable; (vi) there are no Claims (other than routine claims for benefits or actions seeking qualified domestic relations ordersbenefits) pending or threatened involving such Plans or the assets of such Plans, and, to Diablo's knowledge, no facts exist which could give rise to any such Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders); (viivi) no such neither the Company nor any ERISA Affiliate has maintained any Plan that is subject to Title IV of ERISA, or, if subject, there have been no "report able events" (as described in Section 4043 of ERISA), and no steps have been taken to terminate any such Plan; (viiivii) all group health Plans of Diablo have been operated in compliance in all material respects with to the group health plan continuation coverage requirements of COBRA; (ix) actuarially adequate accruals for all obligations under the Plans are reflected in extent that the most recent balance sheet forming part of the Diablo Company Financial Statements and such obligations does not include a pro rata amount of the contributions which would otherwise have been made in accordance with past practices for the Plan years which include the Closing Date, such amounts are set forth in Section 3.15(a) of the Company Disclosure Schedule; (xviii) neither Diablo the Company has not, nor has any of its respective directors, officers, employees or any other fiduciary has fiduciary, committed any breach of fiduciary responsibility imposed by ERISA or any similar Applicable Law that would subject Diablo the Company or any of its respective directors, officers or employees to any material liability under ERISA or any similar Applicable LawERISA; (xi) no such Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code had an accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied, nor would have had an accumulated funding deficiency on such date if such year were the first year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied; (xii) no material liability to the PBGC has been or is expected by Diablo to be incurred by Diablo with respect to any Plan, and there has been no event or condition which presents a material risk of termination of any Plan by the PBGC; (xiiiix) except as set forth in Section 3.12(xiii3.15(a) of the Diablo Disclosure Schedule, Diablo is not and never has been a party to any Multiemployer Plan or made contributions to any such Plan; (xiv) except as set forth in Section 3.12(a)(xiv) of the Diablo Company Disclosure Schedule (which entry, if applicable, shall indicate the present value of accumulated plan liabilities calculated in a manner consistent with FAS 106 and actual annual expense for such benefits for each of the last two (2) years) and pursuant to the provisions of COBRA, Diablo the Company does not maintain any Plan that provides benefits described in Section 3(1) of ERISA, except as the provisions of COBRA may apply, ERISA to any former employees or retirees of Diablothe Company; and (xvx) Diablo the Company has made available to ATS Parent a copy of the two most recently filed Federal Form 5500 series and accountant's opinion, if applicable, for each Plan (and the two most recent actuarial valuation reports for each Plan, if any, that is subject to Title IV of ERISA), and all information provided by Diablo to any actuary in connection with the preparation of any such actuarial valuation report was true, accurate and complete in all material respects. (b) The execution, delivery and performance by Diablo of this Agreement and the Collateral Documents executed Company is not nor has it ever been a party to any Multiemployer Plan or required made contributions to be executed pursuant hereto and thereto will not involve any prohibited transaction within the meaning of ERISA or Section 4975 of the Codesuch plan.

Employee Retirement Income Security Act of 1974. (a) Diablo (which for purposes of this Section shall include A. The Company does not contribute to any ERISA Affiliate) is not making Plan or sponsor any contribution to Plan or sponsoring, Benefit Arrangement and has not at any time since its organization made any contribution contributed to or sponsored, sponsored any Plan or Benefit Arrangement, except as set forth in Section 3.12(a4.15(A) of the Diablo Company Disclosure Schedule. As to all Plans and Benefit Arrangements listed in Section 3.12(a4.15(A) of the Diablo Company Disclosure Schedule, and except as disclosed in such Section 4.15(A) of the Company Disclosure Schedule: (i1) all such Plans and Benefit Benefit. Arrangements comply and have been administered in all material respects in form and in operation with all Applicable Laws in all material respectsLaws, and Diablo the Company has not received any outstanding notice from any Authority questioning or challenging such compliance; (ii2) all such Plans maintained or previously maintained by Diablo the Company that are or were intended to comply with Sections Section 401 and 501 of the Code comply and complied in form and in operation with all applicable requirements of such sectionsSection, and no event has occurred which will or 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 CodeSection; (iii3) none of the assets of any such Plan are invested in employer securities or employer real property; (iv4) there have been are no "prohibited transactions" (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any such Plan and Diablo for which the Company has not otherwise engaged in any prohibited transactionliability; (v) there have been no acts or omissions by Diablo which have given rise to or may give rise to any material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 or ERISA or Chapter 43 of the Code for which Diablo may be liable; (vi5) there are no Claims (other than routine claims for benefits or actions seeking qualified domestic relations ordersbenefits) pending or threatened involving such Plans or the assets of such Plans, and, to Diablo's knowledge, no facts exist which could give rise to any such Claims (other than routine claims for benefits or actions seeking qualified domestic relations orders); (vii6) no such the Company has not maintained any Plan that is subject to Title IV of ERISA, or, if subject, there have been no "report able events" (as described in Section 4043 of ERISA), and no steps have been taken to terminate any such Plan; (viii7) all group health Plans of Diablo have been operated in compliance in all material respects with to the group health plan continuation coverage requirements of COBRA; (ix) actuarially adequate accruals for all obligations under the Plans are reflected in extent that the most recent balance sheet forming part of the Diablo Company Financial Statements and such obligations does not include a pro rata amount of the contributions which would otherwise have been made in accordance with past practices for the Plan years which include the Closing Date, such amounts are set forth in Section 4.15(A) of the Company Disclosure Schedule; (x) 8) neither Diablo the Company nor any of its respective Members, directors, officers, employees or any other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA that would, directly or indirectly, subject the Company to any similar Applicable Law that would subject Diablo or any of its respective directors, officers or employees to material liability under ERISA or any similar Applicable Law;ERISA; and (xi) no such Plan which is subject to Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code had an accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied, nor would have had an accumulated funding deficiency on such date if such year were the first year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code applied; (xii) no material liability to the PBGC has been or is expected by Diablo to be incurred by Diablo with respect to any Plan, and there has been no event or condition which presents a material risk of termination of any Plan by the PBGC; (xiii9) except as set forth in Section 3.12(xiii4.15(A) of the Diablo Disclosure Schedule, Diablo is not and never has been a party to any Multiemployer Plan or made contributions to any such Plan; (xiv) except as set forth in Section 3.12(a)(xiv) of the Diablo Company Disclosure Schedule (which entry, if applicable, shall indicate the present value of accumulated plan liabilities calculated in a manner consistent with FAS 106 and actual annual expense for such benefits for each of the last two (2) years) and pursuant to the provisions of COBRA, Diablo the Company does not maintain any Plan that provides benefits described in Section 3(1) of ERISA, except as the provisions of COBRA may apply, ERISA to any former employees or retirees of Diablo; andthe Company; (xv) Diablo B. The Company is not nor has made available to ATS ever been a copy of the two most recently filed Federal Form 5500 series and accountant's opinion, if applicable, for each Plan (and the two most recent actuarial valuation reports for each Plan, if any, that is subject to Title IV of ERISA), and all information provided by Diablo party to any actuary in connection with the preparation of Multiemployer Plan or made contributions to any such actuarial valuation report was true, accurate and complete in all material respectsplan. (b) The execution, delivery and performance by Diablo of this Agreement and the Collateral Documents executed or required to be executed pursuant hereto and thereto will not involve any prohibited transaction within the meaning of ERISA or Section 4975 of the Code.