Common use of ERISA; Benefit Plans Clause in Contracts

ERISA; Benefit Plans. Schedule 5.13 sets forth a list of all material deferred compensation, profit-sharing, retirement and pension plans and all material bonus and other material employee benefit or fringe benefit plans maintained, or with respect to which contributions have been made, by Seller with respect to current or former employees employed in connection with the power generation operations of the Generating Plants and the Gas Turbines (collectively, "Benefit Plans"). Seller and each trade or business (whether or not incorporated) which are or have ever been under common control, or which are or have ever been treated as a single employer, with Seller under Section 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") have fulfilled their respective obligations under the minimum funding requirements of Section 302 of ERISA, and Section 412 of the Code, with respect to each Benefit Plan which is an "employee pension benefit plan" as defined in Section 3(2) of ERISA and each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and the Code, except for such failures to fulfill such obligations or comply with such provisions which would not, individually or in the aggregate, create a Material Adverse Effect. Neither Seller nor any ERISA Affiliate has incurred any liability under Section 4062(b) of ERISA, or any withdrawal liability under Section 4201 of ERISA, to the Pension Benefit Guaranty Corporation in connection with any Benefit Plan which is subject to Title IV of ERISA which liability remains outstanding, and there has not been any reportable event (as defined in Section 4043 of ERISA) with respect to any such Benefit Plan (other than a reportable event with respect to which the 30-day notice requirement has been waived by the PBGC). Neither Seller nor any ERISA Affiliate or parent corporation, within the meaning of Section 4069(b) or Section 4212(c) of ERISA, has engaged in any transaction, within the meaning of Section 4069(b) or Section 4212(c)

ERISA; Benefit Plans. (a) Schedule 5.13 sets forth a list of 5.13(a) lists all material deferred compensation, profit-sharing, retirement and pension plans, including multiemployer plans (of which none exist), and all material bonus and other material employee benefit or fringe benefit plans maintained, maintained or with respect to which contributions have been made, are made by Seller with the Sellers in respect to current or former employees employed in connection with at the power generation operations of the Generating Plants and the Gas Turbines Purchased Assets (collectively, "Benefit Plans"). Seller Accurate and each trade or business complete copies of all such Benefit Plans have been made available to the Buyer. (whether or not incorporatedb) which are or have ever been under common control, or which are or have ever been treated Except as a single employer, with Seller under Section 414(bset forth in Schedule 5.13(b), (c), (m) or (o) of the Code (an "Sellers and the ERISA Affiliate") Affiliates have fulfilled their respective obligations under the minimum funding requirements of Section 302 of ERISA, and Section 412 of the Code, with respect to each Benefit Plan which is an "employee pension benefit plan" as defined in Section 3(2) of ERISA and each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and the Code. Except as set forth in Schedule 5.13(b), except for such failures to fulfill such obligations or comply with such provisions which would not, individually or in neither the aggregate, create a Material Adverse Effect. Neither Seller Sellers nor any ERISA Affiliate has incurred any liability under Section 4062(b) of ERISA, or any withdrawal liability under Section 4201 of ERISA, ERISA to the Pension Benefit Guaranty Corporation in connection with any Benefit Plan which is subject to Title IV of ERISA which ERISA, nor any withdrawal liability remains outstanding, and nor is there has not been any reportable event (as defined in Section 4043 of ERISA) with respect except as set forth in Schedule 5.13(b). Except as set forth in Schedule 5.13(b), the Internal Revenue Service has issued a letter for each Benefit Plan which is intended to be qualified determining that such plan is exempt from United States Federal Income Tax under Sections 401(a) and 501(a) of the Code, and there has been no occurrence since the date of any such Benefit Plan determination letter which has adversely affected such qualification. (other than a reportable event with respect to which c) None of the 30-day notice requirement has been waived by the PBGC). Neither Seller Sellers nor any ERISA Affiliate or parent corporation, within the meaning of Section 4069(b) or Section 4212(c) of ERISA, has engaged in any transaction, within the meaning of Section 4069(b) or Section 4212(c)) of ERISA. No Benefit Plan and no ERISA Affiliate Plan is a multiemployer plan. (d) Each of the Sellers that maintains a "group health plan" within the meaning of Section 5000(b)(1) of the Code has materially complied in good faith with the notice and continuation requirements of Section 4980B of the Code, COBRA, Part 6 of Subtitle B of Title I of ERISA and the regulations thereunder.

ERISA; Benefit Plans. (a) Schedule 5.13 sets forth 5.12(a) lists each employee benefit plan (as such term is defined in section 3(3) of ERISA) and each other plan, program, or arrangement providing benefits to employees that is maintained by, contributed to, or required to be contributed to by Seller (or any ERISA Affiliate of Seller) as of the date hereof on account of current Business Employees or persons who have retired from the Business (each, a list “Benefit Plan”). Copies of all material deferred compensation, profit-sharing, retirement and pension such plans and all material bonus amendments and other material employee benefit or fringe benefit plans maintaineddirect agreements pertaining thereto, or together with the most recent annual report and actuarial report with respect to which contributions thereto, if any, have been made, by Seller with respect made available to current or former employees employed in connection with Buyer prior to the power generation operations of the Generating Plants and the Gas Turbines date hereof. (collectively, "b) Each Benefit Plans"). Seller and each trade or business (whether or not incorporated) which are or have ever been Plan that is intended to be qualified under common control, or which are or have ever been treated as a single employer, with Seller under Section 414(b), (c), (m) or (osection 401(a) of the Code (an "ERISA Affiliate") have fulfilled their respective obligations under has received a determination from the minimum funding requirements of Section 302 of ERISAInternal Revenue Service that such Benefit Plan is so qualified, and Section 412 each trust that is intended to be exempt under section 501(a) of the CodeCode has received a determination letter that such trust is so exempt. Nothing has occurred since the date of such determination that would materially adversely affect the qualified or exempt status of such Benefit Plan or trust, nor will the consummation of the transactions provided for by this 1-LA/903877.26 Agreement have any such effect. Copies of the most recent determination letter of the IRS with respect to each such Benefit Plan or trust have been made available to Buyer prior to the date hereof. (i) Each Benefit Plan has been maintained, funded, and administered in compliance with its terms, the terms of any applicable Collective Bargaining Agreements, and all applicable Laws, including ERISA and the Code, (ii) there is no “accumulated funding deficiency” within the meaning of section 412 of the Code with respect to any Benefit Plan which is an "“employee pension benefit plan" ” as defined in Section section 3(2) of ERISA ERISA, and each such plan is (iii) no reportable event (within the meaning of section 4043 of ERISA) and no event described in compliance in all material respects with the presently applicable provisions sections 4041, 4042, 4062 or 4063 of ERISA and the Codehas occurred or exists in connection with any Benefit Plan, except for such failures to fulfill such obligations or comply with such provisions which in the case of (i), (ii) and (iii) as would not, individually or in the aggregate, create reasonably be expected to have a Material Adverse Effect. As of the date of this Agreement, no proceeding has been initiated to terminate the Seller Pension Plan nor has the Pension Benefit Guaranty Corporation threatened to terminate the Seller Pension Plan. Neither Seller nor any ERISA Affiliate has incurred any obligation to contribute to or any other liability under Section 4062(bor with respect to any multiemployer plan (as such term is defined in section 3(37) of ERISA), except as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect. No liability under Title IV or section 302 of ERISA has been incurred by Seller or any withdrawal ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to Seller or any ERISA Affiliate of incurring any such liability, other than liability under Section 4201 of ERISA, for premiums due to the Pension Benefit Guaranty Corporation Corporation, except as individually or in connection with the aggregate would not reasonably be expected to have a Material Adverse Effect. No Person has provided or is required to provide security to the Seller Pension Plan under section 401(a)(29) of the Code due to a plan amendment that results in an increase in current liability, except as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect. (d) Except for the ERISA Case, as set forth on Schedule 5.12(d) or as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, (i) there is no litigation or governmental administrative proceeding or, to Seller’s Knowledge, investigation involving any Benefit Plan, and (ii) the administrator and the fiduciaries of each Benefit Plan which is subject have in all material respects complied with the applicable requirements of ERISA, the Code, and any other requirements of applicable Laws, including the fiduciary responsibilities imposed by Part 4 of Title I, Subtitle B of ERISA. Except as set forth on Schedule 5.12(d) or as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, there have been no non-exempt “prohibited transactions” as described in section 4975 of the Code or Title IV I, Part 4 of ERISA involving any Benefit Plan, and, to Seller’s Knowledge, there are no facts or circumstances which liability remains outstanding, and there has not been could give rise to any reportable event (as defined in tax imposed by section 4975 of the Code or Section 4043 502 of ERISA) ERISA with respect to any Benefit Plan. (e) Except as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, all contributions (including all employer matching and other contributions and all employee salary reduction contributions) for all periods ending prior to the Closing Date (including periods from the first day of the current plan year to the Closing Date) have been paid to the Benefit Plans within the time required by Law or will be paid to the Benefit Plans prior to or as of the Closing, notwithstanding any provision of any Benefit Plan to the contrary. All returns, reports, and disclosure statements required to be made 1- LA/903877.26 under ERISA and the Code with respect to the Benefit Plans have been timely filed or delivered except to the extent the failure to file such returns, reports and disclosure statements would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (f) Except as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, each Benefit Plan that is a group health plan (within the meaning of Code section 5000(b)(1)) in all material respects complies with and has been maintained and operated in material compliance with each of the health care continuation requirements of section 4980B of the Code and Part 6 of Title I, Subtitle B of ERISA (or the applicable requirements of State insurance continuation law) and the requirements of the Health Insurance Protection Portability and Accountability Act of 1996. (g) Schedule 5.12(g) sets forth the medical and life insurance benefits provided as of the date of this Agreement by Seller to any currently retired or former employees of the Business other than pursuant to Part 6 of Subtitle B of Title I of ERISA, section 4980B of the Code, or similar provisions of state law. (h) Except for obligations assumed by Buyer as provided in Section 8.8, no provision of any Benefit Plan would require the payment by Buyer or such Benefit Plan of any money or other property, or the provision by Buyer or such Benefit Plan of any other rights or benefits, to or on behalf of any Business Employee or any other employee or former employee of Seller solely as a result of the transactions contemplated by this Agreement, whether or not such payment would constitute a parachute payment within the meaning of section 280G of the Code. (other than a reportable event with respect to which i) During the 30-day notice requirement has been waived by the PBGC). Neither past seven (7) years, neither Seller nor any ERISA Affiliate or parent corporation, (including the Business) has contributed to any “multiemployer plan” within the meaning of Section 4069(b) or Section 4212(csection 3(37) of ERISA, has engaged in any transaction, within the meaning of Section 4069(b) or Section 4212(c).

ERISA; Benefit Plans. (a) Schedule 5.13 sets forth 5.12(a) lists each employee benefit plan (as such term is defined in section 3(3) of ERISA) and each other plan, program, or arrangement providing benefits to employees that is maintained by, contributed to, or required to be contributed to by Seller (or any ERISA Affiliate of Seller) as of the date hereof on account of current Business Employees or persons who have retired from the Business (each, a list “Benefit Plan”). Copies of all material deferred compensation, profit-sharing, retirement and pension such plans and all material bonus amendments and other material employee benefit or fringe benefit plans maintaineddirect agreements pertaining thereto, or together with the most recent annual report and actuarial report with respect to which contributions thereto, if any, have been made, by Seller with respect made available to current or former employees employed in connection with Buyer prior to the power generation operations of the Generating Plants and the Gas Turbines date hereof. (collectively, "b) Each Benefit Plans"). Seller and each trade or business (whether or not incorporated) which are or have ever been Plan that is intended to be qualified under common control, or which are or have ever been treated as a single employer, with Seller under Section 414(b), (c), (m) or (osection 401(a) of the Code (an "ERISA Affiliate") have fulfilled their respective obligations under has received a determination from the minimum funding requirements of Section 302 of ERISAInternal Revenue Service that such Benefit Plan is so qualified, and Section 412 each trust that is intended to be exempt under section 501(a) of the CodeCode has received a determination letter that such trust is so exempt. Nothing has occurred since the date of such determination that would materially adversely affect the qualified or exempt status of such Benefit Plan or trust, nor will the consummation of the transactions provided for by this Agreement have any such effect. Copies of the most recent determination letter of the IRS with respect to each such Benefit Plan or trust have been made available to Buyer prior to the date hereof. (i) Each Benefit Plan has been maintained, funded, and administered in compliance with its terms, the terms of any applicable Collective Bargaining Agreements, and all applicable Laws, including ERISA and the Code, (ii) there is no “accumulated funding deficiency” within the meaning of section 412 of the Code with respect to any Benefit Plan which is an "“employee pension benefit plan" ” as defined in Section section 3(2) of ERISA ERISA, and each such plan is (iii) no reportable event (within the meaning of section 4043 of ERISA) and no event described in compliance in all material respects with the presently applicable provisions sections 4041, 4042, 4062 or 4063 of ERISA and the Codehas occurred or exists in connection with any Benefit Plan, except for such failures to fulfill such obligations or comply with such provisions which in the case of (i), (ii) and (iii) as would not, individually or in the aggregate, create reasonably be expected to have a Material Adverse Effect. As of the date of this Agreement, no proceeding has been initiated to terminate the Seller Pension Plan nor has the Pension Benefit Guaranty Corporation threatened to terminate the Seller Pension Plan. Neither Seller nor any ERISA Affiliate has incurred any obligation to contribute to or any other liability under Section 4062(bor with respect to any multiemployer plan (as such term is defined in section 3(37) of ERISA), except as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect. No liability under Title IV or section 302 of ERISA has been incurred by Seller or any withdrawal ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to Seller or any ERISA Affiliate of incurring any such liability, other than liability under Section 4201 of ERISA, for premiums due to the Pension Benefit Guaranty Corporation Corporation, except as individually or in connection with the aggregate would not reasonably be expected to have a Material Adverse Effect. No Person has provided or is required to provide security to the Seller Pension Plan under section 401(a)(29) of the Code due to a plan amendment that results in an increase in current liability, except as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect. (d) Except for the ERISA Case, as set forth on Schedule 5.12(d) or as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, (i) there is no litigation or governmental administrative proceeding or, to Seller’s Knowledge, investigation involving any Benefit Plan, and (ii) the administrator and the fiduciaries of each Benefit Plan which is subject have in all material respects complied with the applicable requirements of ERISA, the Code, and any other requirements of applicable Laws, including the fiduciary responsibilities imposed by Part 4 of Title I, Subtitle B of ERISA. Except as set forth on Schedule 5.12(d) or as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, there have been no non-exempt “prohibited transactions” as described in section 4975 of the Code or Title IV I, Part 4 of ERISA involving any Benefit Plan, and, to Seller’s Knowledge, there are no facts or circumstances which liability remains outstanding, and there has not been could give rise to any reportable event (as defined in tax imposed by section 4975 of the Code or Section 4043 502 of ERISA) ERISA with respect to any Benefit Plan. (e) Except as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, all contributions (including all employer matching and other contributions and all employee salary reduction contributions) for all periods ending prior to the Closing Date (including periods from the first day of the current plan year to the Closing Date) have been paid to the Benefit Plans within the time required by Law or will be paid to the Benefit Plans prior to or as of the Closing, notwithstanding any provision of any Benefit Plan to the contrary. All returns, reports, and disclosure statements required to be made under ERISA and the Code with respect to the Benefit Plans have been timely filed or delivered except to the extent the failure to file such returns, reports and disclosure statements would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (f) Except as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, each Benefit Plan that is a group health plan (within the meaning of Code section 5000(b)(1)) in all material respects complies with and has been maintained and operated in material compliance with each of the health care continuation requirements of section 4980B of the Code and Part 6 of Title I, Subtitle B of ERISA (or the applicable requirements of State insurance continuation law) and the requirements of the Health Insurance Protection Portability and Accountability Act of 1996. (g) Schedule 5.12(g) sets forth the medical and life insurance benefits provided as of the date of this Agreement by Seller to any currently retired or former employees of the Business other than pursuant to Part 6 of Subtitle B of Title I of ERISA, section 4980B of the Code, or similar provisions of state law. (h) Except for obligations assumed by Buyer as provided in Section 8.8, no provision of any Benefit Plan would require the payment by Buyer, the Companies or such Benefit Plan of any money or other property, or the provision by Buyer, the Companies or such Benefit Plan of any other rights or benefits, to or on behalf of any Business Employee or any other employee or former employee of Seller solely as a result of the transactions contemplated by this Agreement, whether or not such payment would constitute a parachute payment within the meaning of section 280G of the Code. (other than a reportable event with respect to which i) During the 30-day notice requirement has been waived by the PBGC). Neither past seven (7) years, neither Seller nor any ERISA Affiliate (including either of the Companies or parent corporation, the Business) has contributed to any “multiemployer plan” within the meaning of Section 4069(b) or Section 4212(csection 3(37) of ERISA, has engaged in any transaction, within the meaning of Section 4069(b) or Section 4212(c).

ERISA; Benefit Plans. (a) Schedule 5.13 sets forth a list 5.10 lists each employee benefit plan (as such term is defined in Section 3(3) of all material deferred compensation, profit-sharing, retirement ERISA) and pension plans and all material bonus and each other material employee benefit plan, program or fringe benefit plans arrangement maintained, contributed to, or required to be contributed to, by such Seller as of the date of the Original Agreement on account of current or former employees of the Business (each, a "Benefit Plan"). (b) Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a determination from the Internal Revenue Service that such Benefit Plan is so qualified, and, to the Knowledge of such Seller, nothing has occurred since the date of such determination that would materially adversely affect the qualified status of such Benefit Plan. (c) Except as set forth on Schedule 5.10, to the Knowledge of such Seller, each Benefit Plan has been maintained, funded, and administered in material compliance with its terms, the terms of any applicable collective bargaining agreements, and all applicable laws including, but not limited to, ERISA and the Code. Such Seller has no obligation to contribute to or any other liability under or with respect to which contributions have been made, by Seller with respect to current or former employees employed in connection with the power generation operations of the Generating Plants and the Gas Turbines any multiemployer plan (collectively, "Benefit Plans"). Seller and each trade or business (whether or not incorporated) which are or have ever been under common control, or which are or have ever been treated as a single employer, with Seller under Section 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") have fulfilled their respective obligations under the minimum funding requirements of Section 302 of ERISA, and Section 412 of the Code, with respect to each Benefit Plan which such term is an "employee pension benefit plan" as defined in Section 3(23(37) of ERISA and each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and the Code, except for such failures to fulfill such obligations or comply with such provisions which would not, individually or in the aggregate, create a Material Adverse Effect. Neither Seller nor any ERISA Affiliate has incurred any liability under Section 4062(b) of ERISA, or any withdrawal liability under Section 4201 of ERISA, to the Pension Benefit Guaranty Corporation in connection with any Benefit Plan which is subject to Title IV of ERISA which liability remains outstanding, and there has not been any reportable event (as defined in Section 4043 of ERISA) with respect to any such Benefit Plan (other than a reportable event with respect to which employee of the 30-day notice requirement has been waived by the PBGC)Business. Neither such Seller nor any ERISA Affiliate has any liability or parent corporationpotential liability under Title IV of ERISA or to the Pension Benefit Guaranty Corporation that could become a liability of the Buyer. (d) Except as set forth on Schedule 5.10, within to the meaning Knowledge of Section 4069(b) such Seller, such Seller has no obligation to provide medical or Section 4212(c) life insurance benefits to any current or future, retired or former employee of the Business other than pursuant to Part 6 of Subtitle B of Title I of ERISA, has engaged . (e) Neither such Seller nor any ERISA Affiliate maintains a plan which would be reasonably likely to result in the payment to any transaction, within the meaning employee or former employee of Section 4069(b) or Section 4212(c)such

ERISA; Benefit Plans. Schedule 5.13 sets forth a list of all material deferred compensation, profit-sharing, retirement and pension plans and all material bonus and other material employee benefit or fringe benefit plans maintained, or with respect to which contributions have been made, by Seller with respect to current or former employees employed in connection with the power generation operations of the Generating Plants and the Gas Turbines (collectively, "Benefit Plans"). Seller and each trade or business (whether or not incorporated) which are or have ever been under common control, or which are or have ever been treated as a single employer, with Seller under Section 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") have fulfilled their respective obligations under the minimum funding requirements of Section 302 of ERISA, and Section 412 of the Code, with respect to each Benefit Plan which is an "employee pension benefit plan" as defined in Section 3(2) of ERISA and each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and the Code, except for such failures to fulfill such obligations or comply with such provisions which would not, individually or in the aggregate, create a Material Adverse Effect. Neither Seller nor any ERISA Affiliate has incurred any liability under Section 4062(b) of ERISA, or any withdrawal liability under Section 4201 of ERISA, to the Pension Benefit Guaranty Corporation in connection with any Benefit Plan which is subject to Title IV of ERISA which liability remains outstanding, and there has not been any reportable event (as defined in Section 4043 of ERISA) with respect to any such Benefit Plan (other than a reportable event with respect to which the 30-day notice requirement has been waived by the PBGC). Neither Seller nor any ERISA Affiliate or parent corporation, within the meaning of Section 4069(b) or Section 4212(c) of ERISA, has engaged in any transaction, within the meaning of Section 4069(b) or Section 4212(c)) of ERISA. No Benefit Plan and no "employee pension benefit plan" (as defined in Section 3(2) of ERISA) maintained by Seller or any ERISA Affiliate or to which Seller or any ERISA Affiliate has contributed is a multiemployer plan.

ERISA; Benefit Plans. (a) Schedule 5.13 sets forth a list 5.8 lists each employee benefit plan (as such term is defined in section 3(3) of all material deferred compensation, profit-sharing, retirement ERISA) and pension plans and all material bonus and each other material employee benefit plan, program or fringe benefit plans arrangement maintained, contributed to, or required to be contributed to, by the Seller as of the date hereof on account of current or former employees of the Business (each, a "Benefit Plan"). (b) Each Benefit Plan that is intended to be qualified under section 401(a) of the Code and has received a determination from the Internal Revenue Service that such Benefit Plan is so qualified, and nothing has occurred since the date of such determination that would adversely affect the qualified status of such Benefit Plan. (c) Except as set forth on Schedule 5.8, each Benefit Plan has been maintained, funded, and administered in material compliance with its terms, the terms of any applicable collective bargaining agreements, and all applicable laws including, but not limited to, ERISA and the Code. The Seller has no obligation to contribute to or any other liability under or with respect to which contributions have been made, by Seller with respect to current any defined benefit or former employees employed in connection with the power generation operations of the Generating Plants and the Gas Turbines multiemployer plan (collectively, "Benefit Plans"). Seller and each trade or business (whether or not incorporated) which are or have ever been under common control, or which are or have ever been treated as a single employer, with Seller under Section 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") have fulfilled their respective obligations under the minimum funding requirements of Section 302 of ERISA, and Section 412 of the Code, with respect to each Benefit Plan which such term is an "employee pension benefit plan" as defined in Section 3(2section 3(37) of ERISA and each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and the Code, except for such failures to fulfill such obligations or comply with such provisions which would not, individually or in the aggregate, create a Material Adverse Effect. Neither Seller nor any ERISA Affiliate has incurred any liability under Section 4062(b) of ERISA, or any withdrawal liability under Section 4201 of ERISA, to the Pension Benefit Guaranty Corporation in connection with any Benefit Plan which is subject to Title IV of ERISA which liability remains outstanding, and there has not been any reportable event (as defined in Section 4043 of ERISA) with respect to any such Benefit Plan (other than a reportable event with respect to which employee or former employee of the 30-day notice requirement has been waived by the PBGC)Business. Neither the Seller nor any ERISA Affiliate has any liability or parent corporationpotential liability under Title IV of ERISA or to the Pension Benefit Guaranty Corporation that could become a liability of the Buyer. (d) Except as set forth on Schedule 5.8, the Seller has no obligation to provide medical or life insurance benefits to any current or future retired or former employee of the Business other than pursuant to Part 6 of Subtitle B of Title I of ERISA. (e) Neither the Seller nor any ERISA Affiliate maintains a plan or is a party to any other written contract or arrangement which would be reasonably likely to result in the payment to any employee or former employee of the Seller by the Buyer of any money or other property or rights or accelerate or provide any other rights or benefits to any employee or former employee of the Seller as a result of the transactions contemplated by this Agreement, whether or not such payment would constitute a parachute payment within the meaning of Section 4069(b) or Section 4212(c) 280G of ERISA, has engaged in any transaction, within the meaning of Section 4069(b) or Section 4212(c)Code.

ERISA; Benefit Plans. Schedule 5.13 sets forth a list of all material deferred compensation, profit-sharing, retirement and pension plans and all material bonus and other material employee benefit or fringe benefit plans maintained, or with respect to which contributions have been made, by Seller with respect to current or former employees employed in connection with the power generation operations of the Generating Plants and the Gas Turbines (collectively, "Benefit Plans"). Seller and each trade or business (whether or not incorporatedA) which are or have ever been under common control, or which are or have ever been treated as a single employer, with Seller under Section 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") have fulfilled their respective obligations under the minimum funding requirements of Section 302 of ERISA, and Section 412 of the Code, with With respect to each "Benefit Plan which is an "employee pension benefit planPlan" (as defined in Section 3(23(3) of ERISA ERISA) and each such plan employee agreement listed in Schedule 2.16, the Company has performed all obligations required to be performed by it under each Benefit Plan and employee agreement and the Company is not in default under or in violation of the terms of any Benefit Plan or employee agreement. (B) Each Benefit Plan was established and has been maintained in compliance in all material respects with the presently applicable provisions of ERISA, the Code and any other Applicable Law (including timely satisfying all reporting and disclosure requirements under Applicable Law). No "prohibited transaction," as defined in Section 406 of ERISA and Section 4975 of the Code, has occurred in respect of any Benefit Plan. No civil or criminal action brought pursuant to Part V of Title I of ERISA is pending or, to the Sellers' Knowledge, threatened against any fiduciary of any such plan. (C) With respect to qualified retirement plans, the Company represents and warrants that the only qualified retirement plan that the Company or any Affiliate maintains or has maintained during the past five years is a defined contribution profit sharing plan (with a 401(k) feature). Neither the Company nor any Affiliate has ever maintained, established, sponsored, participated in or contributed to any qualified defined contribution money purchase EXECUTION pension plan, qualified defined benefit pension plan (that is subject to ERISA Title IV and Code Section 412), a "multiemployer pension plan" (as defined in ERISA Section 3(37)), or a "multiple employer plan" as defined under ERISA and the Code, except . (D) The Internal Revenue Service ("IRS") has issued a favorable determination letter for such failures to fulfill such obligations or comply with such provisions which would not, individually or in the aggregate, create a Material Adverse Effect. Neither Seller nor any ERISA Affiliate has incurred any liability under Section 4062(b) of ERISA, or any withdrawal liability under Section 4201 of ERISA, to the Pension Benefit Guaranty Corporation in connection with any each employee pension Benefit Plan which is subject to Title IV regarding the qualification of ERISA which liability remains outstandingsuch plan and its related trust under Code Sections 401(a) and 501(a), and there has not been no occurrence since the date of any reportable event such determination letter which has adversely affected such qualification. All contributions to Benefit Plans are fully deductible under the Code as employer contributions and there is no actual or potential liability for any tax under Code Section 4972 on nondeductible contributions to Benefit Plans; and there is no actual or potential liability for any tax under Code Section 4979 on excess contributions to Benefit Plans. Any trust maintained in connection with a Benefit Plan (and from its establishment) has been exempt from federal income taxation under Code Section 501 and has not, at any time, had any "unrelated business taxable income" (as defined under the Code Section 512) and, to the Sellers' Knowledge, nothing has occurred with respect to the operation of any such Benefit Plan that could cause the loss of such qualification of exemption or the imposition of any liability, penalty or tax under Applicable Law. (E) The Sellers have provided the buyer with true, correct, and complete copies of all Benefit Plans, including all amendments, together with copies of any related trust agreements, summary plan descriptions, IRS determination letters, IRS Forms 5500 for the last three (3) fiscal years and IRS summary annual reports for the last three (3) fiscal years and, since the date of the documents delivered, there has not been a material change in Section 4043 the assets or liabilities of ERISAany such plan. (F) No action or failure to act and no transaction or holding of any asset by, or with respect to, any Benefit Plan has or may subject the Company to any Tax, penalty or other liability, whether by way of indemnity or otherwise. There are no Proceedings pending, or to the Sellers' Knowledge, threatened or anticipated (other than routine claims for benefits) against the Company or, to the Sellers' Knowledge, pending, threatened or anticipated against any administrator, trustee or other fiduciary of any Benefit Plan with respect to any Benefit Plan, or against any such plan or against the assets of any such plan. Each Benefit Plan and agreement can be amended, terminated or otherwise discontinued without liability to the Company. The Company has made all accrued contributions and other payments with respect to all periods through the date hereof, and will make a pro-rata payment for the period ending as of the Closing Date, in each case which are required by each Benefit Plan, each related trust or by law to be made to, or with respect to each Benefit Plan (other than a reportable event including all insurance premiums, intercompany charges or Taxes with respect to which each Benefit Plan), or reserves adequate for such purposes as of the 30-day notice requirement Closing Date have been set aside and reflected on the latest Financial Statement. To the Sellers' Knowledge, Benefit Plan is not under audit or investigation by the IRS, the Department of Labor or the PBGC, and no such audit or investigation has been waived by threatened. (G) Neither the PBGC). Neither Seller execution and delivery of this Agreement nor the consummation of any ERISA Affiliate or parent corporation, within all of the meaning of Section 4069(b) or Section 4212(c) of ERISA, has engaged in any transaction, within transactions contemplated hereby (other than the meaning of Section 4069(b) or Section 4212(c)Employment

ERISA; Benefit Plans. (a) Schedule 5.13 sets forth 5.12(a) lists each employee benefit plan (as such term is defined in section 3(3) of ERISA) and each other plan, program, or arrangement providing benefits to employees that is maintained by, contributed to, or required to be contributed to by Seller (or any ERISA Affiliate of Seller) as of the date hereof on account of current Business Employees or persons who have retired from the Business (each, a list “Benefit Plan”). Copies of all material deferred compensation, profit-sharing, retirement and pension such plans and all material bonus amendments and other material employee benefit or fringe benefit plans maintaineddirect agreements pertaining thereto, or together with the most recent annual report and actuarial report with respect to which contributions thereto, if any, have been made, by Seller with respect made available to current or former employees employed in connection with Buyer prior to the power generation operations of the Generating Plants and the Gas Turbines date hereof. (collectively, "b) Each Benefit Plans"). Seller and each trade or business (whether or not incorporated) which are or have ever been Plan that is intended to be qualified under common control, or which are or have ever been treated as a single employer, with Seller under Section 414(b), (c), (m) or (osection 401(a) of the Code (an "ERISA Affiliate") have fulfilled their respective obligations under has received a determination from the minimum funding requirements of Section 302 of ERISAInternal Revenue Service that such Benefit Plan is so qualified, and Section 412 each trust that is intended to be exempt under section 501(a) of the CodeCode has received a determination letter that such trust is so exempt. Nothing has occurred since the date of such determination that would materially adversely affect the qualified or exempt status of such Benefit Plan or trust, nor will the consummation of the transactions provided for by this Agreement have any such effect. Copies of the most recent determination letter of the IRS with respect to each such Benefit Plan or trust have been made available to Buyer prior to the date hereof. (i) Each Benefit Plan has been maintained, funded, and administered in compliance with its terms, the terms of any applicable Collective Bargaining Agreements, and all applicable Laws, including ERISA and the Code, (ii) there is no “accumulated funding deficiency” within the meaning of section 412 of the Code with respect to any Benefit Plan which is an "“employee pension benefit plan" ” as defined in Section section 3(2) of ERISA ERISA, and each such plan is (iii) no reportable event (within the meaning of section 4043 of ERISA) and no event described in compliance in all material respects with the presently applicable provisions sections 4041, 4042, 4062 or 4063 of ERISA and the Codehas occurred or exists in connection with any Benefit Plan, except for such failures to fulfill such obligations or comply with such provisions which in the case of (i), (ii) and (iii) as would not, individually or in the aggregate, create reasonably be expected to have a Material Adverse Effect. As of the date of this Agreement, no proceeding has been initiated to terminate the Seller Pension Plan nor has the Pension Benefit Guaranty Corporation threatened to terminate the Seller Pension Plan. Neither Seller nor any ERISA Affiliate has incurred any obligation to contribute to or any other liability under Section 4062(bor with respect to any multiemployer plan (as such term is defined in section 3(37) of ERISA), except as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect. No liability under Title IV or section 302 of ERISA has been incurred by Seller or any withdrawal ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to Seller or any ERISA Affiliate of incurring any such liability, other than liability under Section 4201 of ERISA, for premiums due to the Pension Benefit Guaranty Corporation Corporation, except as individually or in connection with the aggregate would not reasonably be expected to have a Material Adverse Effect. No Person has provided or is required to provide security to the Seller Pension Plan under section 401(a)(29) of the Code due to a plan amendment that results in an increase in current liability, except as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect. (d) Except for the ERISA Case, as set forth on Schedule 5.12(d) or as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, (i) there is no litigation or governmental administrative proceeding or, to Seller’s Knowledge, investigation involving any Benefit Plan, and (ii) the administrator and the fiduciaries of each Benefit Plan which is subject have in all material respects complied with the applicable requirements of ERISA, the Code, and any other requirements of applicable Laws, including the fiduciary responsibilities imposed by Part 4 of Title I, Subtitle B of ERISA. Except as set forth on Schedule 5.12(d) or as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, there have been no non-exempt “prohibited transactions” as described in section 4975 of the Code or Title IV I, Part 4 of ERISA involving any Benefit Plan, and, to Seller’s Knowledge, there are no facts or circumstances which liability remains outstanding, and there has not been could give rise to any reportable event (as defined in tax imposed by section 4975 of the Code or Section 4043 502 of ERISA) ERISA with respect to any Benefit Plan. (e) Except as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, all contributions (including all employer matching and other contributions and all employee salary reduction contributions) for all periods ending prior to the Closing Date (including periods from the first day of the current plan year to the Closing Date) have been paid to the Benefit Plans within the time required by Law or will be paid to the Benefit Plans prior to or as of the Closing, notwithstanding any provision of any Benefit Plan to the contrary. All returns, reports, and disclosure statements required to be made under XXXXX and the Code with respect to the Benefit Plans have been timely filed or delivered except to the extent the failure to file such returns, reports and disclosure statements would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (f) Except as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, each Benefit Plan that is a group health plan (within the meaning of Code section 5000(b)(1)) in all material respects complies with and has been maintained and operated in material compliance with each of the health care continuation requirements of section 4980B of the Code and Part 6 of Title I, Subtitle B of ERISA (or the applicable requirements of State insurance continuation law) and the requirements of the Health Insurance Protection Portability and Accountability Act of 1996. (g) Schedule 5.12(g) sets forth the medical and life insurance benefits provided as of the date of this Agreement by Seller to any currently retired or former employees of the Business other than pursuant to Part 6 of Subtitle B of Title I of ERISA, section 4980B of the Code, or similar provisions of state law. (h) Except for obligations assumed by Xxxxx as provided in Section 8.8, no provision of any Benefit Plan would require the payment by Buyer or such Benefit Plan of any money or other property, or the provision by Buyer or such Benefit Plan of any other rights or benefits, to or on behalf of any Business Employee or any other employee or former employee of Seller solely as a result of the transactions contemplated by this Agreement, whether or not such payment would constitute a parachute payment within the meaning of section 280G of the Code. (other than a reportable event with respect to which i) During the 30-day notice requirement has been waived by the PBGC). Neither past seven (7) years, neither Seller nor any ERISA Affiliate or parent corporation, (including the Business) has contributed to any “multiemployer plan” within the meaning of Section 4069(b) or Section 4212(csection 3(37) of ERISA, has engaged in any transaction, within the meaning of Section 4069(b) or Section 4212(c).

ERISA; Benefit Plans. (a) Schedule 5.13 sets forth a list 5.12(a) lists each employee benefit plan (as such term is defined in section 3(3) of all material deferred ERISA) and each other health, accident, life insurance, disability, equity compensation, profit-bonus, deferred or incentive compensation, retention, change in control, severance or separation, pension, profit sharing, retirement and pension retirement, welfare or other benefit plan, program, or arrangement providing benefits to employees that is maintained by, contributed to, or required to be contributed to by Seller or any ERISA Affiliate as of the date hereof on account of current Business Employees or persons who have retired or may retire from, or terminated employment with, the Business (each, a “Benefit Plan”). Copies of such plans and all material bonus amendments thereto, together with the most recent annual report and other material employee benefit or fringe benefit plans maintained, or actuarial report with respect to which contributions thereto, if any, have been made, by Seller with respect made available to current or former employees employed in connection with the power generation operations of the Generating Plants and the Gas Turbines Buyer. (collectively, "b) Each Benefit Plans"). Seller and each trade or business (whether or not incorporated) which are or have ever been Plan that is intended to be qualified under common control, or which are or have ever been treated as a single employer, with Seller under Section 414(b), (c), (m) or (osection 401(a) of the Code (an "ERISA Affiliate") have fulfilled their respective obligations under has received a determination from the minimum funding requirements of Section 302 of ERISAInternal Revenue Service that such Benefit Plan is so qualified, and Section 412 each trust that is intended to be exempt under section 501(a) of the CodeCode has received a determination letter that such trust is so exempt. Nothing has occurred since the date of such determination that would materially adversely affect the qualified or exempt status of such Benefit Plan or trust, nor will the consummation of the transactions provided for by this Agreement have any such effect. Seller has made available to Buyer a copy of the most recent determination letter of the IRS with respect to each such Benefit Plan or trust. (c) Each Benefit Plan has been maintained, funded, and administered in material compliance with its terms, the terms of any applicable Collective Bargaining Agreements, and all applicable Laws, including ERISA and the Code. There is no “accumulated funding deficiency” within the meaning of section 412 of the Code with respect to any Benefit Plan which is an "“employee pension benefit plan" ” as defined in Section section 3(2) of ERISA and each no such plan is Benefit Plan has applied for or received a waiver of an accumulated funding or an extension of any amortization period within the meaning of Section 412 of the Code or Section 303 or 304. No reportable event (within the meaning of section 4043 of ERISA) and no event described in compliance in all material respects with the presently applicable provisions section 4041, 4042, 4062, 4063, 4064 or 4069 of ERISA and the Code, except for such failures to fulfill such obligations or comply has occurred in connection with such provisions any Benefit Plan other than events which would not, individually or in the aggregate, create a Material Adverse Effecthave an adverse effect on the Purchased Assets or Business. Neither Seller nor any ERISA Affiliate has incurred any liability under Section 4062(b) of ERISA, or any withdrawal liability under Section 4201 of ERISA, been required to provide information to the Pension Benefit Guaranty Corporation in connection under Section 4010 of ERISA with respect to any Benefit Plan which for the last three plan years. No proceeding has been initiated to terminate the Seller Pension Plan or any other Benefit Plan that is subject to Title IV of ERISA which liability remains outstanding, and there has not been any reportable event (as defined in Section 4043 of ERISA) with respect to any such Benefit Plan (other than a reportable event with respect to which the 30-day notice requirement has been waived by the PBGC). Neither Seller nor any ERISA Affiliate has any obligation to contribute to or parent corporationany other liability under or with respect to any multiemployer plan (as such term is defined in section 3(37) of ERISA). No liability under Title IV or section 302 of ERISA has been incurred by Seller or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to Seller or any ERISA Affiliate of incurring any such liability, other than liability for premiums due to the Pension Benefit Guaranty Corporation. No Person has provided or is required to provide security to the Seller Pension Plan under section 401(a)(29) of the Code due to a plan amendment that results in an increase in current liability. (d) Except as set forth on Schedule 5.12(d), the administrator and the fiduciaries of each Benefit Plan have in all material respects complied with the applicable requirements of ERISA, the Code, and any other requirements of applicable Laws, including the fiduciary responsibilities imposed by Part 4 of Title I, Subtitle B of ERISA. Except as set forth on Schedule 5.12(d), there have been no non-exempt “prohibited transactions” as described in section 4975 of the Code or Title I, Part 4 of ERISA involving any Benefit Plan, and to Seller’s Knowledge there are no facts or circumstances which could give rise to any tax imposed by section 4975 of the Code with respect to any Benefit Plan. (e) All contributions (including all employer matching and other contributions and all employee salary reduction contributions) for all periods ending prior to the Effective Time (including periods from the first day of the current plan year to the Effective Time) have been paid to the Benefit Plans within the time required by Law or will be paid to the Benefit Plans prior to or as of the Closing, notwithstanding any provision of any Benefit Plan to the contrary. All returns, reports, and disclosure statements required to be made under ERISA and the Code with respect to the Benefit Plans have been timely filed or delivered. (f) Each Benefit Plan that is a group health plan (within the meaning of Section 4069(bCode section 5000(b)(1)) in all material respects complies with and has been maintained and operated in material compliance with each of the health care continuation requirements of section 4980B of the Code and Part 6 of Title I, Subtitle B of ERISA and the requirements of the Health Insurance Portability and Accountability Act of 1996. (g) Except as set forth on Schedule 5.12(g), Seller does not provide, and is not obligated to provide medical or Section 4212(c) life insurance benefits currently provided by Seller to any currently retired or former employees of the Business other than pursuant to Part 6 of Subtitle B of Title I of ERISA, has engaged section 4980B of the Code, or similar provisions of state law. (h) Except as provided in Section 7.9, no provision of any transactionBenefit Plan would require the payment by Buyer of any money or other property, or the provision by Buyer of any other rights or benefits, to any employee or former employee of Seller as a result of the transactions contemplated by this Agreement, whether or not such payment would constitute a parachute payment within the meaning of Section 4069(bsection 280G of the Code. (i) Except as set forth on Schedule 5.12(d) or Schedule 5.12(i), there are no actions, suits or claims pending, or, to Seller’s Knowledge, threatened (other than routine claims for benefits) with respect to any Benefit Plan. (j) Except as set forth on Schedule 5.12(j), to Seller’s Knowledge there are no audits, inquiries, or proceedings pending or threatened by any Governmental Entity with respect to any Benefit Plan. (k) Each Benefit Plan that is a “nonqualified deferred compensation plan” (within the meaning of section 409A of the Code) has been administered in good faith compliance with the requirements of section 409A and the Treasury guidance promulgated thereunder. (l) Each Benefit Plan that provides prescription drug coverage to Medicare-eligible retirees (or their Medicare-eligible dependents) is expected to be a “qualified retiree prescription drug plan” (within the meaning of 42 CFR Section 4212(c)423.882) and Seller will timely apply for the Medicare Part D retiree drug subsidy with respect to each such Benefit Plan in accordance with the requirements of 42 CFR Part 423, Subpart R. Seller has provided or will make available to Buyer copies of the subsidy application as completed as of the date hereof and all communications related to Medicare Part D that it has furnished to employees and retirees of the Business.

ERISA; Benefit Plans. (a) Schedule 5.13 sets forth 5.12(a) lists each employee benefit plan (as such term is defined in section 3(3) of ERISA) and each other plan, program, or arrangement providing benefits to employees that is maintained by, contributed to, or required to be contributed to by Seller (or any ERISA Affiliate of Seller) as of the date hereof on account of current or former Business Employees, including persons who have retired or may retire from the Business (each, a list "Benefit Plan"). Copies of all material deferred compensation, profit-sharing, retirement and pension such plans and all material bonus amendments thereto, together with the most recent annual report and other material employee benefit or fringe benefit plans maintained, or actuarial report with respect to which contributions thereto, if any, have been made, by Seller with respect made available to current or former employees employed in connection with the power generation operations of the Generating Plants and the Gas Turbines Buyer. (collectively, "b) Each Benefit Plans"). Seller and each trade or business (whether or not incorporated) which are or have ever been Plan that is intended to be qualified under common control, or which are or have ever been treated as a single employer, with Seller under Section 414(b), (c), (m) or (osection 401(a) of the Code (an "ERISA Affiliate") have fulfilled their respective obligations under is qualified in all material respects and has received a determination from the minimum funding requirements of Section 302 of ERISAInternal Revenue Service that such Benefit Plan is so qualified, and Section each trust that is intended to be exempt under section 501(a) of the Code has received a determination letter that such trust is so exempt. Seller has furnished to Buyer true and complete copies of all such determination letters. Nothing has occurred since the date of such determination that would materially adversely affect the qualified or exempt status of such Benefit Plan or trust, nor will the consummation of the transactions provided for by this Agreement have any such effect. (c) Each Benefit Plan has been maintained, funded, and administered in material compliance with its terms, the terms of any applicable Collective Bargaining Agreements, and all applicable Laws, including ERISA and the Code. There is no "accumulated funding deficiency" within the meaning of section 412 of the Code, Code with respect to each any Benefit Plan which is an "employee pension benefit plan" as defined in Section section 3(2) of ERISA and each such plan is ERISA. No reportable event (within the meaning of section 4043 of ERISA) has occurred or exists in compliance in all material respects connection with the presently applicable provisions of ERISA and the Code, except for such failures to fulfill such obligations or comply with such provisions any Benefit Plan other than events which would not, individually or in the aggregate, create a Material Adverse Effecthave an adverse effect on the Purchased Assets or Business. No event or liability or lien on assets described in sections 4041, 4042, 4062, 4063, 4064, 4068, or 4069 of ERISA has occurred or exists in connection with any Benefit Plan. Seller has accounted for the Seller Pension Plan in accordance with GAAP, and the contributions to the Seller Pension Plan have been made in accordance with applicable Law. No proceeding has been initiated to terminate the Seller Pension Plan, nor, to Seller's Knowledge, has the Pension Benefit Guaranty Corporation threatened or otherwise expressed its intention to terminate the Seller Pension Plan. Neither Seller nor any ERISA Affiliate has incurred any obligation to contribute to or any other liability under Section 4062(bor with respect to any multiemployer plan (as such term is defined in section 3(37) of ERISA, ). No liability under Title IV or section 302 of ERISA has been incurred by Seller or any withdrawal ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to Seller or any ERISA Affiliate of incurring any such liability, other than liability under Section 4201 of ERISA, for premiums due to the Pension Benefit Guaranty Corporation in connection with any Benefit Plan which is subject to Title IV of ERISA which liability remains outstanding, and there has not been any reportable event (as defined in Section 4043 of ERISA) with respect to any such Benefit Plan (other than a reportable event with respect to which the 30-day notice requirement has been waived by the PBGC). Neither Seller nor any ERISA Affiliate or parent corporation, within the meaning of Section 4069(b) or Section 4212(c) of ERISA, has engaged in any transaction, within the meaning of Section 4069(b) or Section 4212(c)<PAGE>

ERISA; Benefit Plans. (a) Schedule 5.13 sets forth 5.12(a) lists each employee benefit plan (as such term is defined in section 3(3) of ERISA) and each other plan, program, or arrangement providing benefits to employees that is maintained by, contributed to, or required to be contributed to by Seller (or any ERISA Affiliate of Seller) as of the date hereof on account of current or former Business Employees, including persons who have retired or may retire from the Business (each, a list “Benefit Plan”). Copies of all material deferred compensation, profit-sharing, retirement and pension such plans and all material bonus amendments thereto, together with the most recent annual report and other material employee benefit or fringe benefit plans maintained, or actuarial report with respect to which contributions thereto, if any, have been made, by Seller with respect made available to current or former employees employed in connection with the power generation operations of the Generating Plants and the Gas Turbines Buyer. (collectively, "b) Each Benefit Plans"). Seller and each trade or business (whether or not incorporated) which are or have ever been Plan that is intended to be qualified under common control, or which are or have ever been treated as a single employer, with Seller under Section 414(b), (c), (m) or (osection 401(a) of the Code (an "ERISA Affiliate") have fulfilled their respective obligations under is qualified in all material respects and has received a determination from the minimum funding requirements of Section 302 of ERISAInternal Revenue Service that such Benefit Plan is so qualified, and Section each trust that is intended to be exempt under section 501(a) of the Code has received a determination letter that such trust is so exempt. Seller has furnished to Buyer true and complete copies of all such determination letters. Nothing has occurred since the date of such determination that would materially adversely affect the qualified or exempt status of such Benefit Plan or trust, nor will the consummation of the transactions provided for by this Agreement have any such effect. (c) Each Benefit Plan has been maintained, funded, and administered in material compliance with its terms, the terms of any applicable Collective Bargaining Agreements, and all applicable Laws, including ERISA and the Code. There is no “accumulated funding deficiency” within the meaning of section 412 of the Code, Code with respect to each any Benefit Plan which is an "“employee pension benefit plan" ” as defined in Section section 3(2) of ERISA and each such plan is ERISA. No reportable event (within the meaning of section 4043 of ERISA) has occurred or exists in compliance in all material respects connection with the presently applicable provisions of ERISA and the Code, except for such failures to fulfill such obligations or comply with such provisions any Benefit Plan other than events which would not, individually or in the aggregate, create a Material Adverse Effecthave an adverse effect on the Purchased Assets or Business. No event or liability or lien on assets described in sections 4041, 4042, 4062, 4063, 4064, 4068, or 4069 of ERISA has occurred or exists in connection with any Benefit Plan. Seller has accounted for the Seller Pension Plan in accordance with GAAP, and the contributions to the Seller Pension Plan have been made in accordance with applicable Law. No proceeding has been initiated to terminate the MINNESOTA GAS Seller Pension Plan, nor, to Seller’s Knowledge, has the Pension Benefit Guaranty Corporation threatened or otherwise expressed its intention to terminate the Seller Pension Plan. Neither Seller nor any ERISA Affiliate has incurred any obligation to contribute to or any other liability under Section 4062(bor with respect to any multiemployer plan (as such term is defined in section 3(37) of ERISA, ). No liability under Title IV or section 302 of ERISA has been incurred by Seller or any withdrawal ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to Seller or any ERISA Affiliate of incurring any such liability, other than liability under Section 4201 of ERISA, for premiums due to the Pension Benefit Guaranty Corporation Corporation. No Person has provided or is required to provide security to the Seller Pension Plan under section 401(a)(29) of the Code due to a plan amendment that results in connection an increase in current liability. (d) Except as set forth on Schedule 5.12(d), the administrator and the fiduciaries of each Benefit Plan have in all material respects complied with the applicable requirements of ERISA, the Code, and any other requirements of applicable Laws, including the fiduciary responsibilities imposed by Part 4 of Title I, Subtitle B of ERISA. Except as set forth on Schedule 5.12(d), there have been no non-exempt “prohibited transactions” as described in section 4975 of the Code or Title I, Part 4 of ERISA involving any Benefit Plan Plan, and to Seller’s Knowledge there are no facts or circumstances which is subject could give rise to Title IV any tax or penalty imposed by section 4975 of the Code or section 502 of ERISA which liability remains outstanding, and there has not been any reportable event (as defined in Section 4043 of ERISA) with respect to any such Benefit Plan. (e) All contributions (including all employer matching and other contributions and all employee salary reduction contributions) for all periods ending prior to the Effective Time (including periods from the first day of the current plan year to the Effective Time) have been paid to the Benefit Plans within the time required by Law or will be paid to the Benefit Plans prior to or as of the Closing, notwithstanding any provision of any Benefit Plan (other than a reportable event to the contrary. All returns, reports, and disclosure statements required to be made under ERISA and the Code with respect to which the 30-day notice requirement has Benefit Plans have been waived by the PBGC). Neither Seller nor any ERISA Affiliate timely filed or parent corporation, delivered. (f) Each Benefit Plan that is a group health plan (within the meaning of Section 4069(bCode section 5000(b)(1)) in all material respects complies with and has been maintained and operated in material compliance with each of the health care continuation requirements of section 4980B of the Code and Part 6 of Title I, Subtitle B of ERISA (or Section 4212(cthe applicable requirements of state insurance continuation law) and the requirements of the Health Insurance Portability and Accountability Act of 1996. (g) Schedule 5.12(g) sets forth the medical and life insurance benefits currently provided by Seller to any currently retired or former employees of the Business other than pursuant to Part 6 of Subtitle B of Title I of ERISA, has engaged section 4980B of the Code, or similar provisions of state law. Except for (i) any obligation to provide medical and/or life insurance benefits under and for the duration of any applicable Collective Bargaining Agreement or any prior collective bargaining agreement to which Seller or any of Seller’s predecessors was a party with respect to the Business, or (ii) any obligation under the Consolidated Omnibus Budget Reconciliation Act of 1985 or other applicable Law, Seller may amend, modify, or terminate post-retirement and post- MINNESOTA GAS employment medical and life benefits or coverage, or adjust retirement premiums or cost-sharing provisions, at any time without further liability. (h) Except as provided in Section 7.9, no provision of any transactionBenefit Plan would require the payment by Buyer of any money or other property, or the provision by Buyer of any other rights or benefits, to any employee or former employee of Seller as a result of the transactions contemplated by this Agreement, whether or not such payment would constitute a parachute payment within the meaning of Section 4069(b) or Section 4212(c)section 280G of the Code.