Common use of Following the Closing Clause in Contracts

Following the Closing. Buyer agrees to cause each Company and each Subsidiary of each Company to honor and perform the obligations of such Company and such Subsidiary under each Benefit Plan in accordance with the terms of any such Benefit Plan and in accordance with the obligations imposed under the Sithe/GPU Agreements and the Collective Bargaining Agreements; provided, however, that Buyer, any Company and any Subsidiary of any Company may make any lawful changes to any such Benefit Plan, or terminate any Benefit Plan, to the extent permitted under the terms of such Benefit Plan, the Sithe/GPU Agreements, the Collective Bargaining Agreements and applicable law. Effective as of the Closing, Buyer shall assume in place of Sithe all the obligations of Sithe under the Sithe/GPU Agreements that pertain to the Benefit Plans and shall cause Sithe to be released from all such obligations. In the event 88 96 that any employees of a Company or Subsidiary of a Company are covered under a Benefit Plan sponsored by Sithe that is required to be maintained on behalf of such employees pursuant to the Sithe/GPU Agreements or a Collective Bargaining Agreement, Buyer shall, or shall cause the Company or the Subsidiary of any Company that employs such employees either to assume the sponsorship of such Benefit Plan, accept a spin-off of the portion of such Benefit Plan covering such employees, adopt a new Employee Benefit Plan or amend an existing Employee Benefit Plan to provide the required benefits, as Buyer may determine, provided that Buyer shall notify Sithe of the manner in which it will meet the obligation described in this sentence at least thirty (30) days before the Closing and cause Sithe to be released from its obligations under the Sithe/GPU Agreements effective upon the Closing. Nothing in this Agreement shall preclude a subsequent agreement by Buyer to assume the obligation to provide benefits under any Employee Benefit Plan to any group of employees under one or more of the Collective Bargaining Agreements with respect to service earned with a Company or a Subsidiary of any Company for the period commencing November 24, 1999 and ending on the Closing Date, subject to reimbursement of Buyer by Sithe for the cost of any such benefits, calculated as Buyer and Sithe may agree, and subject to the agreement of the Union that represents the affected employees.

Following the Closing. Buyer agrees (i) Federated shall provide the Transferring Employees who become employees of Federated (or its Subsidiaries) upon Closing with incentive compensation and employee benefits that are no less favorable in the aggregate than those provided to similarly situated employees of Federated and its Subsidiaries generally, except as otherwise provided in any Employment Agreement signed by such a Transferring Employee. For purposes of eligibility and vesting, and (with respect only to vacation, severance or paid time-off plans or programs) for purposes of benefit accrual and seniority, Federated and its Subsidiaries will credit and will cause each Company and each Subsidiary of each Company to honor and perform the obligations of such Company and such Subsidiary under each Benefit Plan in accordance with the terms of any such Benefit Plan and in accordance with the obligations imposed under the Sithe/GPU Agreements and the Collective Bargaining Agreements; provided, however, that Buyer, any Company and employee benefit plan sponsored by Federated or any Subsidiary of (except any Company may make any lawful changes stock or equity based employee benefit plans) that is made available to any such Benefit Transferring Employee (a “Federated Plan, or terminate any Benefit Plan, ”) to credit each such Transferring Employee with the extent permitted number of months and years of service credited such employee under the terms of such Benefit Plan, the Sithe/GPU Agreements, the Collective Bargaining Agreements and applicable law. Effective a corresponding Seller Plan as of the Closing, Buyer Closing Date. Any Federated Plan which is a health or medical plan shall assume in place provide coverage for any pre-existing health condition of Sithe all such a Transferring Employee or the obligations of Sithe under the Sithe/GPU Agreements that pertain dependents thereof to the Benefit same extent provided by the corresponding Seller Plan under which such Transferring Employee or dependent was covered immediately prior to the Closing Date. Transferred Employees shall be first eligible to participate in Federated health and welfare plans effective January 1, 2009. The Seller shall continue to provide such Transferring Employees with all applicable medical, prescription drug, dental, vision, and flexible spending account benefits under Seller Plans from the Closing Date through December 31, 2008 (“Transition Period”), as may be applicable. Federated agrees to reimburse Seller for all costs and shall cause Sithe to be released from all such obligations. In the event 88 96 that any employees expenses incurred by Seller as a result of a Company or Subsidiary of a Company are covered under a Benefit Plan sponsored by Sithe that is required to be maintained on behalf Seller’s provision of such employees pursuant benefits to such Transferring Employees during the Sithe/GPU Agreements or a Collective Bargaining Agreement, Buyer shall, or shall cause the Company or the Subsidiary of any Company that employs such employees either to assume the sponsorship of such Benefit Plan, accept a spin-off Transition Period as part of the portion initial true-up contemplated in Section 2.6 of such Benefit Plan covering such employees, adopt a new Employee Benefit Plan or amend an existing Employee Benefit Plan to provide the required benefits, as Buyer may determinethis Agreement, provided that Buyer Seller has presented Federated with reasonable documentation supporting the amount of such reimbursement. Federated also agrees that Federated shall notify Sithe be responsible, as “Assumed Liabilities” for purposes of this Agreement, for all Liabilities that may arise as to such benefits for such Transferring Employees during the manner in which it will meet Transition Period, notwithstanding Seller’s actual provision of such health and welfare benefits to such Transferring Employees during the obligation described in this sentence at least thirty Transition Period (30) days before the Closing and cause Sithe other than Liabilities as arising out of, resulting from or relating to be released from its obligations under the Sithe/GPU Agreements effective upon the Closing. Nothing in this Agreement shall preclude a subsequent agreement by Buyer to assume the obligation to provide benefits under any Employee Benefit Plan to any group of employees under one Seller’s gross negligence or more of the Collective Bargaining Agreements with respect to service earned with a Company or a Subsidiary of any Company for the period commencing November 24, 1999 and ending on the Closing Date, subject to reimbursement of Buyer by Sithe for the cost of any such benefits, calculated as Buyer and Sithe may agree, and subject to the agreement of the Union that represents the affected employeeswillful misconduct).

Following the Closing. Buyer agrees and Hanover shall use their, and shall cause their subsidiaries to cause each Company and each Subsidiary of each Company use their, reasonable efforts to honor and perform the obligations of obtain promptly such Company and such Subsidiary under each Benefit Plan in accordance with the terms of any such Benefit Plan and in accordance with the obligations imposed under the Sithe/GPU Agreements and the Collective Bargaining AgreementsApprovals; provided, however, that Buyernone of Hanover or any of its subsidiaries shall be required to pay any consideration therefor, other than filing, recordation or similar fees payable to any domestic or foreign government or governmental authority. Pending such Approval, (i) the parties shall cooperate with each other in any reasonable and lawful arrangements designed to allocate to Seller the benefits and burdens of such asset or liability not sold, assigned, transferred, conveyed or delivered prior to the Closing (each, a "Seller Deferred Item") and (ii) Buyer and Hanover shall, or shall cause their subsidiaries to, enforce, at the reasonable request of Seller for the account of Seller, any Company rights of Hanover and any Subsidiary of any Company may make any lawful changes to any its subsidiaries arising from such Benefit PlanSeller Deferred Item. Once such Approval for the sale, assignment, transfer, conveyance, delivery or terminate any Benefit Plan, to the extent permitted under the terms of such Benefit Plan, the Sithe/GPU Agreements, the Collective Bargaining Agreements and applicable law. Effective as of the Closing, Buyer shall assume in place of Sithe all the obligations of Sithe under the Sithe/GPU Agreements that pertain to the Benefit Plans and shall cause Sithe to be released from all such obligations. In the event 88 96 that any employees assumption of a Company or Subsidiary of a Company are covered under a Benefit Plan sponsored by Sithe that Seller Deferred Item is required to be maintained on behalf of such employees pursuant to the Sithe/GPU Agreements or a Collective Bargaining Agreementobtained, Hanover and Buyer shall, or shall cause their applicable subsidiary to, promptly assign, transfer, convey and deliver, or cause to be assigned, transferred, conveyed and delivered, such Seller Deferred Item to Seller for no consideration and Seller shall, or shall cause one of its subsidiaries to, effect the Company assumption of any Seller Deferred Items constituting an obligation. To the extent that any such Seller Deferred Item cannot be transferred or the Subsidiary full benefits and liabilities of use of any Company that employs such employees either Seller Deferred Item cannot be provided to assume Seller following the sponsorship Closing pursuant to this Section 1.10(b), then Buyer and Seller shall enter into such arrangements (including subleasing or contracting if permitted) to provide to Seller the economic (taking into account Tax costs and benefits) and operational equivalent of obtaining such Benefit Plan, accept a spin-off Approval and the performance by Seller of the portion of such Benefit Plan covering such employees, adopt a new Employee Benefit Plan or amend an existing Employee Benefit Plan to provide the required benefits, as Buyer may determine, provided that Buyer shall notify Sithe of the manner in which it will meet the obligation described in this sentence at least thirty (30) days before the Closing and cause Sithe to be released from its obligations under the Sithe/GPU Agreements effective upon the Closingthereunder. Nothing in this Agreement Section 1.10(b) shall preclude a subsequent agreement by Buyer affect Buyer's or Seller's rights to assume the obligation indemnification pursuant to provide benefits under any Employee Benefit Plan to any group of employees under one or more of the Collective Bargaining Agreements with respect to service earned with a Company or a Subsidiary of any Company for the period commencing November 24, 1999 and ending on the Closing Date, subject to reimbursement of Buyer by Sithe for the cost of any such benefits, calculated as Buyer and Sithe may agree, and subject to the agreement of the Union that represents the affected employeesSection 8.1 hereof.

Following the Closing. Buyer agrees Purchaser shall prepare and deliver to cause each Company Sellers an allocation of the aggregate consideration among Sellers and, for any transactions contemplated by this Agreement that do not constitute an Agreed G Transaction pursuant to Section 6.16, Purchaser shall also prepare and each Subsidiary deliver to the applicable Seller a proposed allocation of each Company to honor the Purchase Price and perform other consideration paid in exchange for the obligations of such Company and such Subsidiary under each Benefit Plan Purchased Assets, prepared in accordance with Section 1060, and if applicable, Section 338, of the terms Tax Code (the “Allocation”). The applicable Seller shall have thirty (30) days after the delivery of any the Allocation to review and consent to the Allocation in writing, which consent shall not be unreasonably withheld, conditioned or delayed. If the applicable Seller consents to the Allocation, such Benefit Plan Seller and Purchaser shall use such Allocation to prepare and file in a timely manner all appropriate Tax filings, including the preparation and filing of all applicable forms in accordance with applicable Law, including Forms 8594 and 8023, if applicable, with their respective Tax Returns for the obligations imposed under taxable year that includes the Sithe/GPU Agreements Closing Date and the Collective Bargaining Agreementsshall take no position in any Tax Return that is inconsistent with such Allocation; provided, however, that Buyernothing contained herein shall prevent the applicable Seller and Purchaser from settling any proposed deficiency or adjustment by any Governmental Authority based upon or arising out of such Allocation, and neither the applicable Seller nor Purchaser shall be required to litigate before any court, any Company and proposed deficiency or adjustment by any Subsidiary of any Company may make any lawful changes Taxing Authority challenging such Allocation. If the applicable Seller does not consent to any such Benefit PlanAllocation, or terminate any Benefit Plan, to the extent permitted under the terms applicable Seller shall notify Purchaser in writing of such Benefit Plan, the Sithe/GPU Agreements, the Collective Bargaining Agreements and applicable law. Effective as of the Closing, Buyer shall assume in place of Sithe all the obligations of Sithe under the Sithe/GPU Agreements that pertain to the Benefit Plans and shall cause Sithe to be released from all disagreement within such obligations. In the event 88 96 that any employees of a Company or Subsidiary of a Company are covered under a Benefit Plan sponsored by Sithe that is required to be maintained on behalf of such employees pursuant to the Sithe/GPU Agreements or a Collective Bargaining Agreement, Buyer shall, or shall cause the Company or the Subsidiary of any Company that employs such employees either to assume the sponsorship of such Benefit Plan, accept a spin-off of the portion of such Benefit Plan covering such employees, adopt a new Employee Benefit Plan or amend an existing Employee Benefit Plan to provide the required benefits, as Buyer may determine, provided that Buyer shall notify Sithe of the manner in which it will meet the obligation described in this sentence at least thirty (30) days before day period, and thereafter, the Closing applicable Seller shall attempt in good faith to promptly resolve any such disagreement. If the Parties cannot resolve a disagreement under this Section 3.3, such disagreement shall be resolved by an independent accounting firm chosen by Purchaser and cause Sithe reasonably acceptable to the applicable Seller, and such resolution shall be final and binding on the Parties. The fees and expenses of such accounting firm shall be borne equally by Purchaser, on the one hand, and the applicable Seller, on the other hand. The applicable Seller shall provide Purchaser, and Purchaser shall provide the applicable Seller, with a copy of any information described above required to be released from its obligations under the Sithe/GPU Agreements effective upon the Closing. Nothing in this Agreement shall preclude a subsequent agreement by Buyer to assume the obligation to provide benefits under any Employee Benefit Plan furnished to any group of employees under one or more of Taxing Authority in connection with the Collective Bargaining Agreements with respect to service earned with a Company or a Subsidiary of any Company for the period commencing November 24, 1999 and ending on the Closing Date, subject to reimbursement of Buyer by Sithe for the cost of any such benefits, calculated as Buyer and Sithe may agree, and subject to the agreement of the Union that represents the affected employeestransactions contemplated herein.