Common use of SECTION ERISA Clause in Contracts

SECTION ERISA. Neither any Loan Party nor any ERISA Affiliate maintains or contributes to, or has any 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 last 60 months with respect to any Plan. No notice of intent to terminate a Pension Plan has been filed, nor has any 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 Neither any of the Loan Parties nor any ERISA Affiliate has completely or partially withdrawn from a Multiemployer Plan.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 assets allocable to such benefits, as determined on the most recent valuation date of such Plan and in accordance with ERISA. Neither any of the Loan Parties nor any ERISA Affiliate has incurred any liability to the PBGC under ERISA. No litigation is pending or threatened concerning or involving any Plan. There are no unfunded or unreserved liabilities relating to any Plan that could, individually or in the aggregate, have a Material Adverse Effect if such Loan Party were required to fund or reserve such liability in full. As of the Closing Date, no funding waivers have been requested or granted under Section 412 of the Code with respect to any Plan. As of the Closing Date, no unfunded or 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 aggregate. A. Section Disclosure. No written statement, information, report, representation or warranty made by any Loan Party in any Loan Document or furnished to Agent or any 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 made or furnished, contains any untrue statement of a material fact or omits to 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 Material Adverse Effect, and there is no fact known to any Loan Party which in the future would reasonably be expected to have a Material Adverse Effect.

SECTION ERISA. Neither any Loan Party nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Pension Plan other than Unless 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 last 60 months with respect failure to any Plan. No notice of intent to terminate a Pension Plan has been filed, nor has any 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 Loan Parties nor any ERISA Affiliate 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 assets allocable to such benefits, as determined on the most recent valuation date of such Plan and in accordance with ERISA. Neither any of the Loan Parties nor any ERISA Affiliate has incurred any liability to the PBGC under ERISA. No litigation is pending or threatened concerning or involving any Plan. There are no unfunded or unreserved liabilities relating to any Plan that could, individually or in the aggregate, have a Material Adverse Effect if such Loan Party were required to fund or reserve such liability in full. As of the Closing Date, no funding waivers have been requested or granted under Section 412 of the Code with respect to any Plan. As of the Closing Date, no unfunded or 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 aggregate. A. Section Disclosure. No written statement, information, report, representation or warranty made by any Loan Party in any Loan Document or furnished to Agent or any Lender by any Loan Party in connection comply with the Loan Documents or any transaction contemplated hereby or thereby, when considered in the context in which the same following is made or furnished, contains any untrue statement of a material fact or omits to 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 Material Adverse Effect, and there is no fact known to any Loan Party which in the future would ----- reasonably be expected likely to have a Material Adverse Effect, such Credit Party shall not: (a) engage, or permit any ERISA Affiliate to engage, in any prohibited transaction described in Section 406 of ERISA or 4975 of the IRC for which a statutory or class exemption is not available or a private exemption has not been previously obtained from the United States Department of Labor and which may result in a material liability to the Borrower; (b) permit to exist any accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the IRC), whether or not waived; FIRST PRIORITY LOAN AGREEMENT ----------------------------- (c) fail, or permit any ERISA Affiliate to fail, to pay timely required contributions or annual installments due with respect to any waived funding deficiency to any Benefit Plan; (d) terminate, or permit any ERISA Affiliate to terminate, any Benefit Plan which would result in any material liability of such Credit Party under Title IV of ERISA; (e) fail to make any contribution or payment to any Multiemployer Plan which such Credit Party or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereto; (f) amend, or permit any ERISA Affiliate to amend, a Plan resulting in an increase in current liability for the plan year such that such Credit Party is required to provide security to such Plan under Section 401(a)(29) of the IRC; or (g) fail, or permit any ERISA Affiliate to fail, to pay any required installment under Section 412 of the IRC on or before the due date for such installment or other payment.

SECTION ERISA. Neither any Loan None of such Credit Party nor 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, or has to any obligation under, any Pension Plan 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 Pension Plans identified material responsibilities, obligations or duties imposed on Schedule 7.13. Each Plan of each Loan Party is in compliance in all material respects with all applicable provisions of it by ERISA and the Code. Neither a Reportable Event nor a Prohibited Transaction has occurred within the last 60 months or regulations promulgated thereunder with respect to any Plan. No notice of intent to terminate a Pension Plan has been filed, nor has incurred any 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 accumulated funding deficiency (as defined in Section 302(a)(2) of ERISA and Section 412(a) of the Loan Parties nor IRC), whether waived or not waived. None of such Credit Party or any ERISA Affiliate has completely or partially withdrawn from nor any fiduciary of any Plan which is not a Multiemployer Plan. Each Loan Party and each Plan (i) has engaged in a nonexempt "prohibited transaction" described in Section 406 of 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 or Section 4975 of the Closing Date except as specified on Schedule 7.13IRC or (ii) has taken or failed to take any action which would constitute or result in a Termination Event; provided that, in the present value case of all vested benefits under each funded Plan the events described in clauses (exclusive of any Multiemployer Plani) does not exceed and (ii), such action, or failure to take action results in a material liability to the fair market value of all such Plan assets allocable to such benefits, as determined on the most recent valuation date Borrower. None of such Plan and in accordance with ERISA. Neither any of the Loan Parties nor 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 ERISA. No litigation is pending Sections 4203 or threatened concerning or involving any 4205 of ERISA from a Multiemployer Plan. There are no unfunded None of such Credit Party or unreserved liabilities relating any ERISA Affiliate has failed to make a required installment or any Plan that could, individually or in the aggregate, have a Material Adverse Effect if such Loan Party were other required to fund or reserve such liability in full. As of the Closing Date, no funding waivers have been requested or granted payment under Section 412 of the Code with respect 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 any Plan. As provide security to a Plan under Section 401(a)(29) of the Closing Date, no unfunded or unreserved IRC due to a Plan amendment that results in an increase in current 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 aggregate. A. Section Disclosure. No written statement, information, report, representation or warranty made by any Loan Party in any Loan Document or furnished to Agent or any 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 made or furnished, contains any untrue statement of a material fact or omits to 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 Material Adverse Effect, and there is no fact known to any Loan Party which in the future would reasonably be expected to have a Material Adverse Effectplan year.

SECTION ERISA. Neither any Loan None of such Credit Party nor 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, or has to any obligation under, any Pension Plan 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 Pension Plans identified material responsibilities, obligations or duties imposed on Schedule 7.13. Each Plan of each Loan Party is in compliance in all material respects with all applicable provisions of it by ERISA and the Code. Neither a Reportable Event nor a Prohibited Transaction has occurred within the last 60 months or regulations promulgated thereunder with respect to any Plan. No notice of intent to terminate a Pension Plan has been filed, nor has incurred any 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 accumulated funding deficiency (as defined in Section 302(a)(2) of ERISA and Section 412(a) of the Loan Parties nor IRC), whether waived or not waived. None of such Credit Party or any ERISA Affiliate has completely or partially withdrawn from nor any fiduciary of any Plan which is not a Multiemployer Plan. Each Loan Party and each Plan (i) has engaged in a nonexempt "prohibited transaction" described in Section 406 of 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 or Section 4975 of the Closing Date except as specified on Schedule 7.13IRC or (ii) has taken or failed to take any action which would constitute or result in a Termination Event; provided that, in the present value case of all vested benefits under each funded Plan the events described in clauses (exclusive of any Multiemployer Plani) does not exceed and (ii), such action, or failure to take action results in a material liability to the fair market value of all such Plan assets allocable to such benefits, as determined on the most recent valuation date Borrower. None of such Plan and in accordance with ERISA. Neither any of the Loan Parties nor 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. 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 ERISA. No litigation is pending Sections 4203 or threatened concerning or involving any 4205 of ERISA from a Multiemployer Plan. There are no unfunded None of such Credit Party or unreserved liabilities relating any ERISA Affiliate has failed to make a required installment or any Plan that could, individually or in the aggregate, have a Material Adverse Effect if such Loan Party were other required to fund or reserve such liability in full. As of the Closing Date, no funding waivers have been requested or granted payment under Section 412 of the Code with respect 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 any Plan. As provide security to a Plan under Section 401(a)(29) of the Closing Date, no unfunded or unreserved IRC due to a Plan amendment that results in an increase in current 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 aggregate. A. Section Disclosure. No written statement, information, report, representation or warranty made by any Loan Party in any Loan Document or furnished to Agent or any 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 made or furnished, contains any untrue statement of a material fact or omits to 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 Material Adverse Effect, and there is no fact known to any Loan Party which in the future would reasonably be expected to have a Material Adverse Effectplan year.

SECTION ERISA. Neither any Loan Party nor any As of the Closing Date, except as would not have a Material Adverse Effect: EEX, the Subsidiaries and each ERISA Affiliate maintains or contributes to, or has any obligation under, any Pension Plan other than the Pension Plans identified on Schedule 7.13. Each Plan of each Loan Party is in compliance have complied in all material respects with all applicable provisions 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 (whether directly or indirectly) of (i) either a material civil penalty assessed pursuant to subsections (c), (i) or (l) of section 502 of ERISA and or a tax imposed pursuant to Chapter 43 of Subtitle D of the CodeCode or (ii) breach of fiduciary duty liability damages under section 409 of ERISA. Neither a Reportable Event nor a Prohibited Transaction No liability to the PBGC (other than for the payment of current premiums which are not past due) by EEX, any Subsidiary or any ERISA Affiliate has occurred within the last 60 months been or is expected by EEX, any Subsidiary or any ERISA Affiliate to be incurred with respect to any Plan. No notice of intent ERISA Event with respect to terminate a Pension any Plan has occurred which could result in a liability of EEX, any Subsidiary or any ERISA Affiliate. Full payment when due has been filedmade of all amounts which EEX, nor has the Subsidiaries or any Pension ERISA Affiliate is required under the terms of each Plan been terminatedor 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 of ERISA and section 412 of the Code), whether or not waived, exists with respect to any Benefit Plan. No circumstances exist The actuarial present value of the benefit liabilities under each Benefit Plan which constitute grounds entitling is subject to Title IV of ERISA does not, as of the PBGC end of EEX's most recently ended fiscal year, exceed the current value of the assets (computed on a plan termination basis in accordance with Title IV of ERISA) of such Benefit Plan allocable to institute proceedings to terminate, or appoint a trustee to administer, a Pension Plan, nor has such benefit liabilities. The term "actuarial present value of the PBGC instituted any such proceedingsbenefit liabilities" shall have the meaning specified in section 4041 of ERISA. Neither any of the Loan Parties EEX nor any ERISA Affiliate has completely received any notification (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 has knowledge of any reason to expect) that any Multiemployer Plan) does not exceed Plan is in reorganization, is insolvent or has been terminated, within the fair market value meaning of all such Plan assets allocable to such benefits, as determined on the most recent valuation date Title IV of such Plan and in accordance with ERISA. Neither any of the Loan Parties EEX nor any ERISA Affiliate has incurred any liability to the PBGC under ERISA. No litigation is pending or threatened concerning or involving any Plan. There are no unfunded or unreserved liabilities relating to any Plan that could, individually or in the aggregate, have a Material Adverse Effect if such Loan Party were required to fund or reserve such liability in full. As of the Closing Date, no funding waivers have been requested or granted provide security under Section 412 section 401(a)(29) of the Code with respect due to any Plan. As of the Closing Date, no unfunded or unreserved a Plan amendment that results in an increase in current 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 aggregate. A. Section Disclosure. No written statement, information, report, representation or warranty made by any Loan Party in any Loan Document or furnished to Agent or any 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 made or furnished, contains any untrue statement of a material fact or omits to 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 Material Adverse Effect, and there is no fact known to any Loan Party which in the future would reasonably be expected to have a Material Adverse EffectPlan.