Common use of SECTION ERISA Clause in Contracts

SECTION ERISA. None of such Credit Party or any ERISA Affiliate of such ------ Credit Party maintains or contributes to any Plan other than a Plan listed on Schedule 3.12 hereto. Except as disclosed on Schedule 3.12, each Plan which is ------------- ------------- intended to be qualified under Section 401(a) of the IRC has been determined by the IRS to be so qualified, and each trust related to any such Plan has been determined to be exempt from federal income tax under Section 501(a) of the IRC. Except as disclosed on Schedule 3.12, none of such Credit Party or any ERISA ------------- Affiliate maintains or contributes to any employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA. None of such Credit Party or any ERISA Affiliate has breached any of the material responsibilities, obligations or duties imposed on it by ERISA or regulations promulgated thereunder with respect to any Plan. No Plan has incurred any accumulated funding deficiency (as defined in Section 302(a)(2) of ERISA and Section 412(a) of the IRC), whether waived or not waived. None of such Credit Party or any ERISA Affiliate nor any fiduciary of any Plan which is not a Multiemployer Plan (i) has engaged in a nonexempt "prohibited transaction" described in Section 406 of ERISA or Section 4975 of the IRC or (ii) has taken or failed to take any action which would constitute or result in a Termination Event; provided that, in the case of the events described in clauses (i) and (ii), such action, or failure to take action results in a material liability to the Borrower. None of such Credit Party or any ERISA Affiliate has incurred any liability to the PBGC which remains outstanding, other than the payment of premiums, and there are no premium payments which have become due which are unpaid. Schedule B to the most recent annual report filed with the IRS with respect to each Plan is complete and accurate. Since the date of each such Schedule B, there has been no adverse change in the funding status or financial condition of the Plan relating to such Schedule B. SECOND PRIORITY LOAN AGREEMENT ------------------------------ None of such Credit Party or any ERISA Affiliate has (i) failed to make a required contribution or payment to a Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections 4203 or 4205 of ERISA from a Multiemployer Plan. None of such Credit Party or any ERISA Affiliate has failed to make a required installment or any other required payment under Section 412 of the IRC on or before the due date for such installment or other payment. None of such Credit Party or any ERISA Affiliate is required to provide security to a Plan under Section 401(a)(29) of the IRC due to a Plan amendment that results in an increase in current liability for the plan year.

SECTION ERISA. None No Credit Party nor any ERISA Affiliate of such any Credit Party maintains or has ever maintained or been obligated to contribute to any Plan covered by Title IV of ERISA or subject to the funding requirements of Section 412 of the Code or Section 302 of ERISA. Each Plan maintained by any Credit Party or any ERISA Affiliate of any Credit Party is in compliance in all material respects with all applicable Laws. Except in such ------ instances where an omission or failure would not result in a Material Adverse Change, (a) all returns, reports and notices required to be filed with any regulatory agency with respect to any Plan have been filed timely, and (b) no Credit Party nor any ERISA Affiliate of any Credit Party has failed to make any contribution or pay any amount due or owing as required by the terms of any Plan. There are not pending or, to the best of Borrower's knowledge, threatened claims, lawsuits, investigations or actions (other than routine claims for benefits in the ordinary course) asserted or instituted against, and no Credit Party nor any ERISA Affiliate of any Credit Party has knowledge of any threatened litigation or claims against, the assets of any Plan or its related trust or against any fiduciary of a Plan with respect to the operation of such Plan that are likely to result in liability of any Credit Party resulting in a Material Adverse Change. Except in such instances where an omission or failure would not result in a Material Adverse Change, each Plan that is intended to be "qualified" within the meaning of section 401(a) of the Code is, and has been during the period from its adoption to date, so qualified, both as to form and operation and all necessary governmental approvals, including a favorable determination as to the qualification under the Code of such Plan and each amendment thereto, have been or will be timely obtained. No Credit Party nor any ERISA Affiliate of any Credit Party has engaged in any prohibited transactions, within the meaning of section 406 of ERISA or section 4975 of the Code, in connection with any Plan which would result in liability of any Credit Party resulting in a Material Adverse Change. No Credit Party nor any ERISA Affiliate of any Credit Party maintains or contributes to any Plan that provides a post-employment health benefit, other than a Plan listed on Schedule 3.12 hereto. Except as disclosed on Schedule 3.12, each Plan which is ------------- ------------- intended to be qualified benefit required under Section 401(a) 601 of the IRC has been determined by the IRS to be so qualifiedERISA, and each trust related to any such Plan has been determined to be exempt from federal income tax under Section 501(a) of the IRC. Except as disclosed on Schedule 3.12, none of such Credit Party or any ERISA ------------- Affiliate maintains or contributes to a Plan that provides health benefits that is not fully funded except where the failure to fully fund such Plan would not result in a Material Adverse Change. No Credit Party nor any employee ERISA Affiliate of any Credit Party maintains, has established or has ever participated in a multiple employer welfare benefit plan arrangement within the meaning of Section 3(1section 3(40)(A) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA. None of such Credit Party or any ERISA Affiliate has breached any of the material responsibilities, obligations or duties imposed on it by ERISA or regulations promulgated thereunder with respect to any Plan1.9. No Plan has incurred any accumulated funding deficiency (as defined in Section 302(a)(2) of ERISA and Section 412(a) of the IRC), whether waived or not waived. None of such Credit Party or any ERISA Affiliate nor any fiduciary of any Plan which is not a Multiemployer Plan (i) has engaged in a nonexempt "prohibited transaction" described in Section 406 of ERISA or Section 4975 of the IRC or (ii) has taken or failed to take any action which would constitute or result in a Termination Event; provided that, in the case of the events described in clauses (i) and (ii), such action, or failure to take action results in a material liability to the Borrower. None of such Credit Party or any ERISA Affiliate has incurred any liability to the PBGC which remains outstanding, other than the payment of premiums, and there are no premium payments which have become due which are unpaid. Schedule B to the most recent annual report filed with the IRS with respect to each Plan is complete and accurate. Since the date of each such Schedule B, there has been no adverse change in the funding status or financial condition of the Plan relating to such Schedule B. SECOND PRIORITY LOAN AGREEMENT ------------------------------ None of such Credit Party or any ERISA Affiliate has (i) failed to make a required contribution or payment to a Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections 4203 or 4205 of ERISA from a Multiemployer Plan. None of such Credit Party or any ERISA Affiliate has failed to make a required installment or any other required payment under Section 412 of the IRC on or before the due date for such installment or other payment. None of such Credit Party or any ERISA Affiliate is required to provide security to a Plan under Section 401(a)(29) of the IRC due to a Plan amendment that results in an increase in current liability for the plan year1.10.

SECTION ERISA. None of such Credit Neither any Loan Party or nor any ERISA Affiliate of such ------ Credit Party maintains or contributes to any Plan other than a Plan listed on Schedule 3.12 hereto. Except as disclosed on Schedule 3.12, each Plan which is ------------- ------------- intended to be qualified under Section 401(a) of the IRC has been determined by the IRS to be so qualified, and each trust related to any such Plan has been determined to be exempt from federal income tax under Section 501(a) of the IRC. Except as disclosed on Schedule 3.12, none of such Credit Party or any ERISA ------------- Affiliate maintains or contributes to to, or has any employee welfare benefit plan obligation under, any Pension Plan other than the Pension Plans identified on Schedule 7.13. Each Plan of each Loan Party is in compliance in all material respects with all applicable provisions of ERISA and the Code. Neither a Reportable Event nor a Prohibited Transaction has occurred within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA. None of such Credit Party or any ERISA Affiliate has breached any of the material responsibilities, obligations or duties imposed on it by ERISA or regulations promulgated thereunder last 60 months with respect to any Plan. No notice of intent to terminate a Pension Plan has incurred been filed, nor has any accumulated funding deficiency (as defined in Section 302(a)(2) of ERISA and Section 412(a) Pension Plan been terminated. No circumstances exist which constitute grounds entitling the PBGC to institute proceedings to terminate, or appoint a trustee to administer, a Pension Plan, nor has the PBGC instituted any such proceedings. Neither any of the IRC), whether waived or not waived. None of such Credit Party or Loan Parties nor any ERISA Affiliate nor any fiduciary has completely or partially withdrawn from a Multiemployer Plan. Each Loan Party and each ERISA Affiliate have met their minimum funding requirements under ERISA and the Code with respect to all of their Plans subject to such requirements, and, as of the Closing Date except as specified on Schedule 7.13, the present value of all vested benefits under each funded Plan (exclusive of any Multiemployer Plan) does not exceed the fair market value of all such Plan which is not a Multiemployer assets allocable to such benefits, as determined on the most recent valuation date of such Plan (i) has engaged and in a nonexempt "prohibited transaction" described in Section 406 of ERISA or Section 4975 accordance with ERISA. Neither any of the IRC or (ii) has taken or failed to take any action which would constitute or result in a Termination Event; provided that, in the case of the events described in clauses (i) and (ii), such action, or failure to take action results in a material liability to the Borrower. None of such Credit Party or Loan Parties nor any ERISA Affiliate has incurred any liability to the PBGC which remains outstanding, other than the payment of premiums, and there under ERISA. No litigation is pending or threatened concerning or involving any Plan. There are no premium payments which have become due which are unpaid. Schedule B unfunded or unreserved liabilities relating to the most recent annual report filed with the IRS with respect to each any Plan is complete and accurate. Since the date of each such Schedule Bthat could, there has been no adverse change individually or in the funding status aggregate, have a Material Adverse Effect if such Loan Party were required to fund or financial condition reserve such liability in full. As of the Plan relating to such Schedule B. SECOND PRIORITY LOAN AGREEMENT ------------------------------ None of such Credit Party Closing Date, no funding waivers have been requested or any ERISA Affiliate has (i) failed to make a required contribution or payment to a Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections 4203 or 4205 of ERISA from a Multiemployer Plan. None of such Credit Party or any ERISA Affiliate has failed to make a required installment or any other required payment granted under Section 412 of the IRC on Code with respect to any Plan. As of the Closing Date, no unfunded or before unreserved liability for benefits under any Plan or Plans (exclusive of any Multiemployer Plans) exceeds $250,000 with respect to any such Plan or $500,000 with respect to all such Plans in the due date for such installment aggregate. A. Section Disclosure. No written statement, information, report, representation or other payment. None of such Credit warranty made by any Loan Party in any Loan Document or furnished to Agent or any ERISA Affiliate Lender by any Loan Party in connection with the Loan Documents or any transaction contemplated hereby or thereby, when considered in the context in which the same is required made or furnished, contains any untrue statement of a material fact or omits to provide security state any material fact necessary to make the statements herein or therein not misleading. There is no fact known to any Loan Party which has had a Plan under Section 401(a)(29) of Material Adverse Effect, and there is no fact known to any Loan Party which in the IRC due future would reasonably be expected to have a Plan amendment that results in an increase in current liability for the plan yearMaterial Adverse Effect.

SECTION ERISA. None of such Credit Party or any ERISA Affiliate of such ------ ----- Credit Party maintains or contributes to any Plan other than a Plan listed on Schedule 3.12 hereto. Except as disclosed on Schedule 3.12, each Plan which is ------------- ------------- intended to be qualified under Section 401(a) of the IRC has been determined by the IRS to be so qualified, and each trust related to any such Plan has been determined to be exempt from federal income tax under Section 501(a) of the IRC. Except as disclosed on Schedule 3.12, none of such Credit Party or any ERISA ------------- Affiliate maintains or contributes to any employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA. None of such Credit Party or any ERISA Affiliate has breached any of the material responsibilities, obligations or duties imposed on it by ERISA or regulations promulgated thereunder with respect to any Plan. No Plan has incurred any accumulated funding deficiency (as defined in Section 302(a)(2) of ERISA and Section 412(a) of the IRC), whether waived or not waived. None of such Credit Party or any ERISA Affiliate nor any fiduciary of any Plan which is not a Multiemployer Plan (i) has engaged in a nonexempt "prohibited transaction" described in Section 406 of ERISA or Section 4975 of the IRC or (ii) has taken or failed to take any action which would constitute or result in a Termination Event; provided that, in the case of the events described in clauses (i) and (ii), such action, or failure to take action results in a material liability to the Borrower. None of such Credit Party or any ERISA Affiliate has incurred any liability to the PBGC which remains outstanding, other than the payment of premiums, and there are no premium payments which have become due which are unpaid. Schedule B to the most recent annual report filed with the IRS with respect to each Plan is complete and accurate. Since the date of each such Schedule B, there has been no adverse change in the funding status or financial condition of the Plan relating to such Schedule B. SECOND PRIORITY LOAN AGREEMENT ------------------------------ None of such Credit Party or any ERISA Affiliate has (i) failed to make a required contribution or payment to a Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections 4203 or 4205 of ERISA from a Multiemployer Plan. None of such Credit Party or any ERISA Affiliate has failed to make a required installment or any other required payment under Section 412 of the IRC on or before the due date for such installment or other payment. None of such Credit Party or any ERISA Affiliate is required to provide security to a Plan under Section 401(a)(29) of the IRC due to a Plan amendment that results in an increase in current liability for the plan year.

SECTION ERISA. None As of such Credit Party the Closing Date, except as would not have a Material Adverse Effect: EEX, the Subsidiaries and each ERISA Affiliate have complied in all material respects with ERISA and, where applicable, the Code regarding each Plan. No act, omission or transaction has occurred which could result in imposition on EEX, any Subsidiary or any ERISA Affiliate of such ------ Credit Party maintains (whether directly or contributes to any Plan other than a Plan listed on Schedule 3.12 hereto. Except as disclosed on Schedule 3.12, each Plan which is ------------- ------------- intended to be qualified under Section 401(aindirectly) of the IRC has been determined by the IRS (i) either a material civil penalty assessed pursuant to be so qualifiedsubsections (c), and each trust related to any such Plan has been determined to be exempt from federal income tax under Section 501(a(i) or (l) of the IRC. Except as disclosed on Schedule 3.12, none of such Credit Party or any ERISA ------------- Affiliate maintains or contributes to any employee welfare benefit plan within the meaning of Section 3(1) section 502 of ERISA which provides benefits or a tax imposed pursuant to employees after termination Chapter 43 of employment other than as required by Section 601 Subtitle D of the Code or (ii) breach of fiduciary duty liability damages under section 409 of ERISA. None No liability to the PBGC (other than for the payment of such Credit Party current premiums which are not past due) by EEX, any Subsidiary or any ERISA Affiliate has breached been or is expected by EEX, any of the material responsibilities, obligations Subsidiary or duties imposed on it by any ERISA or regulations promulgated thereunder Affiliate to be incurred with respect to any Plan. No ERISA Event with respect to any Plan has incurred occurred which could result in a liability of EEX, any Subsidiary or any ERISA Affiliate. Full payment when due has been made of all amounts which EEX, the Subsidiaries or any ERISA Affiliate is required under the terms of each Plan or applicable law to have paid as contributions to such Plan as of the date hereof, and no accumulated funding deficiency (as defined in Section 302(a)(2) section 302 of ERISA and Section 412(a) section 412 of the IRCCode), whether waived or not waived, exists with respect to any Benefit Plan. None The actuarial present value of such Credit Party or any ERISA Affiliate nor any fiduciary of any the benefit liabilities under each Benefit Plan which is not a Multiemployer Plan (i) has engaged in a nonexempt "prohibited transaction" described in Section 406 subject to Title IV of ERISA or Section 4975 does not, as of the IRC or (ii) has taken or failed to take any action which would constitute or result in a Termination Event; provided thatend of EEX's most recently ended fiscal year, in exceed the case current value of the events described assets (computed on a plan termination basis in clauses (iaccordance with Title IV of ERISA) and (ii), such action, or failure to take action results in a material liability to the Borrower. None of such Credit Party or Benefit Plan allocable to such benefit liabilities. The term "actuarial present value of the benefit liabilities" shall have the meaning specified in section 4041 of ERISA. Neither EEX nor any ERISA Affiliate has incurred received any liability notification (or has knowledge of any reason to the PBGC which remains outstanding, other than the payment of premiums, and there are no premium payments which have become due which are unpaid. Schedule B to the most recent annual report filed with the IRS with respect to each expect) that any Multiemployer Plan is complete and accurate. Since the date of each such Schedule Bin reorganization, there is insolvent or has been no adverse change in terminated, within the funding status or financial condition meaning of the Plan relating to such Schedule B. SECOND PRIORITY LOAN AGREEMENT ------------------------------ None Title IV of such Credit Party or any ERISA Affiliate has (i) failed to make a required contribution or payment to a Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections 4203 or 4205 of ERISA from a Multiemployer PlanERISA. None of such Credit Party or any ERISA Affiliate has failed to make a required installment or any other required payment under Section 412 of the IRC on or before the due date for such installment or other payment. None of such Credit Party or Neither EEX nor any ERISA Affiliate is required to provide security to a Plan under Section section 401(a)(29) of the IRC Code due to a Plan amendment that results in an increase in current liability for the plan yearPlan.