Common use of Deficiencies; Qualification Clause in Contracts

Deficiencies; Qualification. None of the Plans nor any --------------------------- trust created thereunder has incurred any "accumulated funding deficiency," as such term is defined in Section 412 of the Code, whether or not waived, since the effective date of said Section 412, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, neither the Company, any of its Subsidiaries nor any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Plans. Each of the Plans which is intended to be a qualified plan under Section 401(a) of the Code is a standardized prototype plan or either (i) has received a favorable determination letter from the Service, or (ii) has time remaining under applicable treasury regulations or Service pronouncements in which to apply for such a determination letter and make any amendments necessary to obtain a favorable determination and has been operated in all material respects in accordance with its terms and with the provisions of the Code. All of the Plans have been administered and maintained in substantial compliance with ERISA, the Code and all other applicable Laws. All contributions required to be made to each of the Plans under the terms of that Plan, ERISA, the Code or any other applicable Laws have been timely made. Each Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Code meets such requirements in all material respects. There are no liens against the property of the Company or any of its Subsidiaries (including the Transferred Assets) or any ERISA Affiliate under Section 412(n) of the Code or Sections 302(f) or 4068 of ERISA. The Balance Sheet and the Monthly Financial Statements properly reflect all amounts required to be accrued as liabilities to date under each of the Plans. Except as disclosed in Section 6.16.4 of the -------------- Company Disclosure Letter, there is no contract, agreement or benefit arrangement covering any employee of the Company which, individually or collectively, could give rise to the payment of any amount which would constitute an "excess parachute payment" (as defined in Section 280G of the Code). Except as disclosed in Section 6.16.4 of the Company -------------- Disclosure Letter, the execution and performance of this Agreement will not (i) result in any obligation or liability (with respect to accrued benefits or otherwise) of the Surviving Corporation or any of its Subsidiaries to the Pension Benefit Guaranty Corporation, any Plan, or any present or former employee of the Surviving Corporation, (ii) be a trigger event under any Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents, or (iii) accelerate the time of payment or vesting, or increase the amount, of compensation due to any employee, officer, director, stockholder, contractor, or consultant of the Company or of any of its Subsidiaries. With respect to any insurance policy which provides, or has provided, funding for benefits under any Plan, (A) there is and will be no liability of the Company, any of its Subsidiaries, or the Surviving Corporation in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Recap Closing Date, nor would there be any such liability if such insurance policy were terminated as of the Recap Closing Date, and (B) no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and, to the knowledge of the Company, no such proceedings with respect to any insurer are imminent.

Deficiencies; Qualification. None of the Plans nor any trust --------------------------- trust created thereunder has incurred any "accumulated funding deficiency," as such term is defined in Section 412 of the Code, whether or not waived, since the effective date of said such Section 412, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, neither the Company, Company nor any of its Subsidiaries nor any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Plans. Each of the Plans which is intended to be a qualified plan under Section 401(a) of the Code is a standardized prototype plan or either (i) has received a favorable determination letter from the Internal Revenue Service, or (ii) has time remaining under applicable treasury regulations or Service pronouncements in which to apply for such a determination letter and make any amendments necessary to obtain a favorable determination and has been operated in all material respects in accordance with its terms and with the provisions of the Code. All of the Plans have been administered and maintained in substantial compliance with ERISA, the Code and all other applicable Laws. All contributions required to be made to each of the Plans under the terms of that Plan, ERISA, the Code or any other applicable Laws have been timely made. Each Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Code meets such requirements in all material respectsrequirements. There are no liens against the property of the Company or any of its Subsidiaries (including the Transferred Assets) or any of its ERISA Affiliate Affiliates under Section 412(n) of the Code or Sections 302(f) or 4068 of ERISA. The Balance Sheet and the Monthly Financial Statements properly reflect all material amounts required to be accrued as liabilities to date under each of the Plans. Except as disclosed in Section 6.16.4 of the -------------- Company Disclosure Letter, there There is no contract, agreement or benefit arrangement covering any employee of the Company which, individually or collectively, could give rise to the payment of any amount which would constitute an "excess parachute payment" (as defined in Section 280G of the Code). Except as disclosed in Section 6.16.4 of the Company -------------- Disclosure Letter, the The execution and performance of this Agreement will not (i) result in any obligation or liability (with respect to accrued benefits or otherwise) of the Surviving Corporation Parent or Merger Sub or any subsidiary of its Subsidiaries Parent to the Pension Benefit Guaranty CorporationPBGC, any Plan, or any present or former employee of the Surviving CorporationCompany, (ii) be a trigger event under any Plan that will result in any material payment (whether of severance pay or otherwise) becoming due to any present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents, or (iii) accelerate the time of payment or vesting, or increase the amount, of compensation due to any employee, officer, director, stockholder, contractor, or consultant of the Company or of any of its SubsidiariesCompany. With respect to any insurance policy which provides, or has provided, funding for benefits under any Plan, (A) there is and will be no material liability of the Company, any of its Subsidiaries, Company or the Surviving Corporation Parent or Merger Sub in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Recap Closing Date, nor would there be any such liability if such insurance policy were terminated as of the Recap Closing Date, and (B) no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and, to the knowledge of the Company, no such proceedings with respect to any insurer are imminent.

Deficiencies; Qualification. None of the Plans nor any --------------------------- trust created thereunder has incurred any "accumulated funding deficiency," as such term is defined in Section 412 of the Internal Revenue Code, whether or not waived, since the effective date of said Section 412, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, neither the Company, any of its Subsidiaries nor any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Plans. Each of the Plans which is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code is a standardized prototype plan or either (i) has received a favorable determination letter, opinion, notification or advisory letter from the Internal Revenue Service, or (ii) has time remaining under applicable treasury regulations or Service pronouncements in which to apply for such a determination letter and make any amendments necessary to obtain a favorable determination and has been operated in all material respects in accordance with its terms and with the provisions of the Internal Revenue Code. All of the Plans have been administered and maintained in substantial compliance with ERISA, the Internal Revenue Code and all other applicable Laws. All contributions required to be made to each of the Plans under the terms of that Plan, ERISA, the Internal Revenue Code or any other applicable Laws have been timely made. Each Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Internal Revenue Code meets is in compliance with such requirements in all material respectsrequirements. There are no liens Liens against the property of the Company or Company, any of its Subsidiaries (including the Transferred Assets) or any of their respective ERISA Affiliate Affiliates under Section 412(n) of the Internal Revenue Code or Sections 302(f) or 4068 of ERISA. The Balance Sheet and the Monthly Interim Financial Statements properly reflect all amounts required to be accrued as liabilities to date under each of the Plans. Except as disclosed in Section 6.16.4 of the -------------- Company Disclosure Letter, there is no contract, agreement or benefit arrangement covering any employee of the Company which, individually or collectively, could give rise to the payment of any amount which would constitute an "excess parachute payment" (as defined in Section 280G of the Code). Except as disclosed in Section 6.16.4 of the Company -------------- Disclosure Letter, the execution and performance of this Agreement will not (i) result in any obligation or liability (with respect to accrued benefits or otherwise) of the Surviving Corporation or any of its Subsidiaries to the Pension Benefit Guaranty Corporation, any Plan, or any present or former employee of the Surviving Corporation, (ii) be a trigger event under any Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents, or (iii) accelerate the time of payment or vesting, or increase the amount, of compensation due to any employee, officer, director, stockholder, contractor, or consultant of the Company or of any of its Subsidiaries. With respect to any insurance policy which provides, or has provided, funding for benefits under any Plan, (A) there is and will be no liability of the Company, any of its Subsidiaries, or the Surviving Corporation in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Recap Closing Date, nor would there be any such liability if such insurance policy were terminated as of the Recap Closing Date, and (B) no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and, to the knowledge of the Company, no such proceedings with respect to any insurer are imminent.

Deficiencies; Qualification. None of the Plans nor any --------------------------- trust created thereunder has incurred any "accumulated funding deficiency," as such term is defined in Section 412 of the Internal Revenue Code, whether or not waived, since the effective date of said Section 412, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, neither the Company, Company nor any of its Subsidiaries nor any of their respective ERISA Affiliates has any unfunded material liability under ERISA in respect of any of the Plans. Each of the Plans which is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code is a standardized prototype plan or either (i) has received a favorable determination letter, opinion, notification or advisory letter from the Internal Revenue Service, or (ii) has time remaining under applicable treasury regulations or Service pronouncements in which to apply for such a determination letter and make any amendments necessary to obtain a favorable determination and has been operated in all material respects in accordance with its terms and with the provisions of the Internal Revenue Code. All of the Plans have been administered and maintained in substantial compliance with ERISA, the Internal Revenue Code and all other applicable Laws. All material contributions required to be made to each of the Plans under the terms of that Plan, ERISA, the Internal Revenue Code or any other applicable Laws have been timely made. Each Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Internal Revenue Code meets is in compliance with such requirements in all material respectsrequirements. There are no liens Liens against the property of the Company or any of its Subsidiaries (including the Transferred Assets) or any ERISA Affiliate Affiliates under Section 412(n) of the Internal Revenue Code or Sections 302(f) or 4068 of ERISA. The Balance Sheet and the Monthly Company Financial Statements properly reflect all amounts required to be accrued as liabilities to through the date of such financial statements under each of the Plans. Except as disclosed Plans and the amounts required to be accrued since such date are not material in Section 6.16.4 of the -------------- Company Disclosure Letter, there is no contract, agreement or benefit arrangement covering any employee of the Company which, individually or collectively, could give rise to the payment of any amount which would constitute an "excess parachute payment" (as defined in Section 280G of the Code). Except as disclosed in Section 6.16.4 of the Company -------------- Disclosure Letter, the execution and performance of this Agreement will not (i) result in any obligation or liability (with respect to accrued benefits or otherwise) of the Surviving Corporation or any of its Subsidiaries to the Pension Benefit Guaranty Corporation, any Plan, or any present or former employee of the Surviving Corporation, (ii) be a trigger event under any Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents, or (iii) accelerate the time of payment or vesting, or increase the amount, of compensation due to any employee, officer, director, stockholder, contractor, or consultant of the Company or of any of its Subsidiaries. With respect to any insurance policy which provides, or has provided, funding for benefits under any Plan, (A) there is and will be no liability of the Company, any of its Subsidiaries, or the Surviving Corporation in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Recap Closing Date, nor would there be any such liability if such insurance policy were terminated as of the Recap Closing Date, and (B) no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and, to the knowledge of the Company, no such proceedings with respect to any insurer are imminent.

Deficiencies; Qualification. None of the Plans nor any --------------------------- trust created thereunder has incurred any "accumulated funding deficiency," as such term is defined in Section 412 of the Code, whether or not waived, since the effective date of said such Section 412, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, neither the Company, Company nor any of its Subsidiaries nor any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Plans. Each of the Plans which is intended to be a qualified plan under Section 401(a) of the Code is a standardized prototype plan or either (i) has received a favorable determination letter from the Internal Revenue Service, or (ii) has time remaining under applicable treasury regulations or Service pronouncements in which to apply for such a determination letter and make any amendments necessary to obtain a favorable determination and has been operated in all material respects in accordance with its terms and with the provisions of the Code. All of the Plans have been administered and maintained in substantial compliance with ERISA, the Code and all other applicable Laws. All contributions required to be made to each of the Plans under the terms of that Plan, ERISA, the Code or any other applicable Laws have been timely made. Each Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Code meets such requirements in all material respectsrequirements. There are no liens against the property of the Company or any of its Subsidiaries (including the Transferred Assets) or any of its ERISA Affiliate Affiliates under Section 412(n) of the Code or Sections 302(f) or 4068 of ERISA. The Balance Sheet and the Monthly Financial Statements properly reflect all material amounts required to be accrued as liabilities to date under each of the Plans. Except as disclosed in Section 6.16.4 of the -------------- Company Disclosure Letter, there There is no contract, agreement or benefit arrangement covering any employee of the Company which, individually or collectively, could give rise to the payment of any amount which would constitute an "excess parachute payment" (as defined in Section 280G of the Code). Except as disclosed in Section 6.16.4 of the Company -------------- Disclosure Letter, the The execution and performance of this Agreement will not (i) result in any obligation or liability (with respect to accrued benefits or otherwise) of the Surviving Corporation Parent or Merger Sub or any subsidiary of its Subsidiaries Parent to the Pension Benefit Guaranty CorporationPBGC, any Plan, or any present or former employee of the Surviving CorporationCompany, (ii) be a trigger event under any Plan that will result in any material payment (whether of severance pay or otherwise) becoming due to any present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents, or (iii) accelerate the time of payment or vesting, or increase the amount, of compensation due to any employee, officer, director, stockholder, contractor, or consultant of the Company or of any of its SubsidiariesCompany. With respect to any insurance policy which provides, or has provided, funding for benefits under any Plan, (A) there is and will be no material liability of the Company, any of its Subsidiaries, Company or the Surviving Corporation Parent or Merger Sub in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Recap Closing Date, nor would there be any such liability if such insurance policy were terminated as of the Recap Closing Date, and (B) no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and, to the knowledge of the Company, no such proceedings with respect to any insurer are imminent.

Deficiencies; Qualification. None of the Plans nor any --------------------------- trust created thereunder has incurred any "accumulated funding deficiency," as such term is defined in Section 412 of the Internal Revenue Code, whether or not waived, since the effective date of said Section 412, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, neither the Company, Company nor any of its Subsidiaries nor any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Plans. Each of the Plans which is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code is a standardized prototype plan or either (i) has received a favorable determination letter, opinion, notification or advisory letter from the Internal Revenue Service, or (ii) has time remaining under applicable treasury regulations or Service pronouncements in which to apply for such a determination letter and make any amendments necessary to obtain a favorable determination and has been operated in all material respects in accordance with its terms and with the provisions of the Internal Revenue Code. All of the Plans have been administered and maintained in substantial compliance with ERISA, the Internal Revenue Code and all other applicable Laws. All contributions required to be made to each of the Plans under the terms of that Plan, ERISA, the Internal Revenue Code or any other applicable Laws have been timely made. Each Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Internal Revenue Code meets is in compliance with such requirements in all material respectsrequirements. There are no liens Liens against the property of the Company or any of its Subsidiaries (including the Transferred Assets) or any ERISA Affiliate Affiliates under Section 412(n) of the Internal Revenue Code or Sections 302(f) or 4068 of ERISA. The Balance Sheet and the Monthly Interim Financial Statements properly reflect all amounts required to be accrued as liabilities to date under each of the Plans. Except as disclosed in Section 6.16.4 of the -------------- Company Disclosure Letter, there is no contract, agreement or benefit arrangement covering any employee of the Company which, individually or collectively, could give rise to the payment of any amount which would constitute an "excess parachute payment" (as defined in Section 280G of the Code). Except as disclosed in Section 6.16.4 of the Company -------------- Disclosure Letter, the execution and performance of this Agreement will not (i) result in any obligation or liability (with respect to accrued benefits or otherwise) of the Surviving Corporation or any of its Subsidiaries to the Pension Benefit Guaranty Corporation, any Plan, or any present or former employee of the Surviving Corporation, (ii) be a trigger event under any Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents, or (iii) accelerate the time of payment or vesting, or increase the amount, of compensation due to any employee, officer, director, stockholder, contractor, or consultant of the Company or of any of its Subsidiaries. With respect to any insurance policy which provides, or has provided, funding for benefits under any Plan, (A) there is and will be no liability of the Company, any of its Subsidiaries, or the Surviving Corporation in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Recap Closing Date, nor would there be any such liability if such insurance policy were terminated as of the Recap Closing Date, and (B) no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and, to the knowledge of the Company, no such proceedings with respect to any insurer are imminent.

Deficiencies; Qualification. None of the Plans nor any --------------------------- trust created thereunder has incurred any "accumulated funding deficiency," as such term is defined in Section 412 of the Code, whether or not waived, since the effective date of said Section 412, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, neither the Company, any of its Subsidiaries Subsidiary nor any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Plans. Each of the Plans which is intended to be a qualified plan under Section 401(a) of the Code is a standardized prototype plan or either (i) has received a favorable determination determination, opinion, notification or advisory letter from the Service, Internal Revenue Service or (ii) has remaining a period of time remaining under applicable treasury Treasury regulations or Service pronouncements IRS procurements in which to apply for such a determination letter and make any amendments necessary to obtain a favorable determination letter, and has been operated in all material respects in accordance with its terms and with the provisions of the CodeCode in all material respects. All of the Plans have been administered and maintained in substantial compliance with ERISA, the Code and all other applicable Laws. All material contributions required to be made to each of the Plans under the terms of that Plan, ERISA, the Code or any other applicable Laws have been timely made. Each Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Code meets is in compliance with such requirements in all material respectsrequirements. There are no liens Liens against the property of the Company Company, any Subsidiary or any of its Subsidiaries (including the Transferred Assets) or any their respective ERISA Affiliate Affiliates under Section 412(n) of the Code or Sections 302(f) or 4068 of ERISA. The Balance Sheet and the Monthly Interim Financial Statements properly reflect all material amounts required to be accrued as liabilities to date under each of the Plans. Except as disclosed in Section 6.16.4 of the -------------- Company Disclosure Letter, there is no contract, agreement or benefit arrangement covering any employee of the Company which, individually or collectively, could give rise to the payment of any amount which would constitute an "excess parachute payment" (as defined in Section 280G of the Code). Except as disclosed in Section 6.16.4 of the Company -------------- Disclosure Letter, the The execution and performance of this Agreement will not (i) result in any obligation or liability (with respect to accrued benefits or otherwise) of Parent, the Surviving Corporation Corporation, or any of its Subsidiaries Subsidiary to the Pension Benefit Guaranty CorporationPBGC, any Plan, or any present or former employee of Parent, the Surviving Corporation, or any Subsidiary, (ii) be a trigger event under any Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any present or former employee, officer, director, stockholdershareholder, contractor, or consultant, or any of their dependents, or (iii) accelerate the time of payment or vesting, or increase the amount, of compensation due to any employee, officer, director, stockholdershareholder, contractor, or consultant of the Company or of any of its SubsidiariesSubsidiary. With respect to any insurance policy which provides, or has provided, funding for benefits under any Plan, (AI) there is and will be no liability of the Company, any of its Subsidiaries, Subsidiary or the Surviving Corporation Parent in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Recap Closing Datedate, nor would there be any such liability if such insurance policy were terminated as of the Recap Closing Date, and (BII) to the knowledge of the Company, no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and, to the knowledge of the Company, and no such proceedings with respect to any insurer are imminent.

Deficiencies; Qualification. None of the Plans nor any --------------------------- trust created thereunder has incurred any "accumulated funding deficiency," as such term is defined in Section 412 of the Code, whether or not waived, since the effective date of said Section 412, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, neither the Company, any of its Subsidiaries ant Subsidiary nor any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Plans. Each of the Plans which is intended to be a qualified plan under Section 401(a) of the Code is a standardized prototype plan or either (i) has received a favorable determination letter, opinion, notification or advisory letter from the Internal Revenue Service, or (ii) has time remaining under applicable treasury regulations or Service pronouncements in which to apply for such a determination letter and make any amendments necessary to obtain a favorable determination and has been operated in all material respects been operated in accordance with its terms and with the provisions of the Code. All of the Plans have been administered and maintained in substantial compliance with ERISA, the Code and all other applicable Laws. Notwithstanding the foregoing, no representation is made by the Company concerning the impact of the termination of the Company's 401(k) plan on such plan's continued qualification under Section 401(a) of the Code. All contributions required to be made to each of the Plans under the terms of that Plan, ERISA, the Code or any other applicable Laws have been timely made. Each Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Code meets is in compliance with such requirements in all material respectsrequirements. There are no liens Liens against the property of the Company Company, any Subsidiary or any of its Subsidiaries (including the Transferred Assets) or any their respective ERISA Affiliate Affiliates under Section 412(n) of the Code or Sections 302(f) or 4068 of ERISA. The Balance Sheet and the Monthly Interim Financial Statements properly reflect all amounts required to be accrued as liabilities to date under each of the Plans. Except as disclosed in Section 6.16.4 of the -------------- Company Disclosure Letter, there is no contract, agreement or benefit arrangement covering any employee of the Company which, individually or collectively, could give rise to the payment of any amount which would constitute an "excess parachute payment" (as defined in Section 280G of the Code). Except as disclosed in Section 6.16.4 of the Company -------------- Disclosure Letter, the execution and performance of this Agreement will not (i) result in any obligation or liability (with respect to accrued benefits or otherwise) of the Surviving Corporation or any of its Subsidiaries to the Pension Benefit Guaranty Corporation, any Plan, or any present or former employee of the Surviving Corporation, (ii) be a trigger event under any Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents, or (iii) accelerate the time of payment or vesting, or increase the amount, of compensation due to any employee, officer, director, stockholder, contractor, or consultant of the Company or of any of its Subsidiaries. With respect to any insurance policy which provides, or has provided, funding for benefits under any Plan, (A) there is and will be no liability of the Company, any of its Subsidiaries, or the Surviving Corporation in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Recap Closing Date, nor would there be any such liability if such insurance policy were terminated as of the Recap Closing Date, and (B) no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and, to the knowledge of the Company, no such proceedings with respect to any insurer are imminent.

Deficiencies; Qualification. None of the Plans nor any --------------------------- trust created thereunder has incurred any "accumulated funding deficiency," as such term is defined in Section 412 of the Internal Revenue Code, whether or not waived, since the effective date of said Section 412, and no condition has occurred or exists which by the passage of time could be expected to result in an accumulated funding deficiency as of the last day of the current plan year of any such Plan. Furthermore, neither the Company, any of its Subsidiaries Subsidiary nor any of their respective ERISA Affiliates has any unfunded liability under ERISA in respect of any of the Plans. Each of the Plans which is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code is a standardized prototype plan or either (i) has received a favorable determination letter, opinion, notification or advisory letter from the Internal Revenue Service, or (ii) has time remaining under applicable treasury regulations or Service pronouncements in which to apply for such a determination letter and make any amendments necessary to obtain a favorable determination and has been operated in all material respects in accordance with its terms and with the provisions of the Internal Revenue Code. All of the Plans have been administered and maintained in substantial compliance with ERISA, the Internal Revenue Code and all other applicable Laws. All contributions required to be made to each of the Plans under the terms of that Plan, ERISA, the Internal Revenue Code or any other applicable Laws have been timely made. Each Plan intended to meet the requirements for tax-favored treatment under Subchapter B of Chapter 1 of the Internal Revenue Code meets is in compliance with such requirements in all material respectsrequirements. There are no liens Liens against the property of the Company Company, any Subsidiary or any of its Subsidiaries (including the Transferred Assets) or any their respective ERISA Affiliate Affiliates under Section 412(n) of the Internal Revenue Code or Sections 302(f) or 4068 of ERISA. The Balance Sheet and the Monthly Financial Statements properly reflect all amounts required to be accrued as liabilities to date under each of the Plans. Except as disclosed in Section 6.16.4 of the -------------- Company Disclosure Letter, there is no contract, agreement or benefit arrangement covering any employee of the Company which, individually or collectively, could give rise to the payment of any amount which would constitute an "excess parachute payment" (as defined in Section 280G of the Code). Except as disclosed in Section 6.16.4 of the Company -------------- Disclosure Letter, the execution and performance of this Agreement will not (i) result in any obligation or liability (with respect to accrued benefits or otherwise) of the Surviving Corporation or any of its Subsidiaries to the Pension Benefit Guaranty Corporation, any Plan, or any present or former employee of the Surviving Corporation, (ii) be a trigger event under any Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any present or former employee, officer, director, stockholder, contractor, or consultant, or any of their dependents, or (iii) accelerate the time of payment or vesting, or increase the amount, of compensation due to any employee, officer, director, stockholder, contractor, or consultant of the Company or of any of its Subsidiaries. With respect to any insurance policy which provides, or has provided, funding for benefits under any Plan, (A) there is and will be no liability of the Company, any of its Subsidiaries, or the Surviving Corporation in the nature of a retroactive or retrospective rate adjustment, loss sharing arrangement, or actual or contingent liability as of the Recap Closing Date, nor would there be any such liability if such insurance policy were terminated as of the Recap Closing Date, and (B) no insurance company issuing any such policy is in receivership, conservatorship, bankruptcy, liquidation, or similar proceeding, and, to the knowledge of the Company, no such proceedings with respect to any insurer are imminent.