Common use of Assumed Plans Clause in Contracts

Assumed Plans. Purchaser shall notify Sellers in writing no later than two (2) Business Days prior to the Closing as to which Employee Benefit Plans Purchaser shall adopt and assume, if any (the “Assumed Plans”). With respect to each Assumed Plan, Purchaser or, any entity designated by Purchaser, will be substituted for the applicable Seller as the plan sponsor under any such Assumed Plan and Purchaser shall have all rights of such Seller thereunder, including full authority to maintain, amend or terminate any such Assumed Plan at any time, in Purchaser’s sole discretion. Sellers agree to cooperate with Purchaser in adopting and effectuating any plan amendments to the Assumed Plans reasonably requested by Purchaser, so long as such amendments are effective as of, or after, the Closing Date and are consistent with applicable Law and other agreements under which Sellers are obligated. The parties agree to cooperate in all respects and take any actions necessary to implement the assumption by Purchaser of the Assumed Plans. Before, or as soon as administratively practicable after, the Closing, Sellers will provide Purchaser with (i) all records concerning participation, vesting, accrual of benefits, payment of benefits, and election forms of benefits under each Assumed Plan, and (ii) any other information reasonably requested by Purchaser as necessary or appropriate for the administration of each Assumed Plan, each subject to the provision of consent by any Purchaser Employee to the extent and in the manner required by Law. Purchaser will make all required filings or reports with or to the IRS, or any other governmental agency, and the participants and their beneficiaries with respect to each Assumed Plan on a timely basis for all plan years ending before, on or after the Closing Date or as may be required with respect to such Assumed Plan, provided the initial deadline for such filing or report is after the Closing Date. All parties recognize that a reasonable transition period may be necessary after the Closing Date and prior to Purchaser’s implementation of its assumption of the Assumed Plans before full compliance with this Section 6.5 is achieved, during which some or all of the Purchaser Employees and other participants and beneficiaries of the Assumed Plans may not be able to (i) make (and Purchaser may not be able to process) elective deferral contributions, loan repayments, investment changes, distribution requests, benefit payment requests or reimbursement requests or (ii) exercise or enjoy other rights or features of the Assumed Plans, and that during such transition period Purchaser shall not be considered to be in violation of this Section 6.5. Notwithstanding the foregoing, Purchaser shall not assume or succeed to any of Sellers’ past, current or future Liabilities (including any withdrawal liability, termination liability or mass withdrawal liability) with respect to any multiemployer plan to which any Seller or any ERISA Affiliate contributes or has ever contributed.

Assumed Plans. Effective as of the Closing, the Purchaser shall notify Sellers assume the Employee Plans listed in writing no later than two (2Section 6.02(a) Business Days prior to of the Closing as to which Employee Benefit Plans Purchaser shall adopt and assume, if any Sellers’ Disclosure Schedule (the “Assumed Employee Plans”), to the extent set forth on such schedule, and the Sellers shall assign to the Purchaser any assets relating to such Assumed Employee Plans, including, but not limited to, assets held in trust and insurance policies; provided that the Purchaser may on or prior to June 5, 2009, with prior written notice to the Sellers, delete an Employee Plan from Section 6.02(a) of the Sellers’ Disclosure Schedule. With Notwithstanding the foregoing, with respect to each Assumed the Milacron Retiree Welfare Benefit Plan (the “Retiree Welfare Plan”), the Purchaser shall assume all Liabilities under the Retiree Welfare Plan, Purchaser orincluding Liabilities with respect to former employees; provided, any entity designated by Purchaserhowever, will be substituted for that the applicable Seller as the plan sponsor under any such Assumed Plan and Purchaser shall have all rights of assume such Seller thereunder, including full authority to maintain, amend or terminate any such Assumed Plan at any time, in Purchaser’s sole discretion. Sellers agree to cooperate with Purchaser in adopting and effectuating any plan amendments Liabilities only to the Assumed Plans reasonably requested by Purchaser, so long as extent that (i) such amendments are effective as of, or after, the Closing Date and Liabilities are consistent with applicable Law and other agreements under which Sellers are obligated. The parties agree to cooperate in all respects and take any actions necessary to implement the assumption by Purchaser of the Assumed Plans. Beforemost recent actuarial report, or attached hereto as soon as administratively practicable after, the Closing, Sellers will provide Purchaser with (i) all records concerning participation, vesting, accrual of benefits, payment of benefits, and election forms of benefits under each Assumed PlanExhibit H, and (ii) any the Retiree Welfare Plan is freely terminable (without liability other information reasonably requested by Purchaser as necessary or appropriate for the administration of each Assumed Plan, each subject to the provision of consent by any Purchaser Employee to the extent and in the manner required by Law. Purchaser will make all required filings or reports with or to the IRS, or any other governmental agency, and the participants and their beneficiaries than with respect to each Assumed Plan on a timely basis for all plan years ending before, on or after the Closing Date or as may be required with respect to such Assumed Plan, provided the initial deadline for such filing or report is after the Closing Date. All parties recognize that a reasonable transition period may be necessary after the Closing Date and claims incurred prior to Purchaser’s implementation of its assumption termination) and amendable by the Purchaser (as the sponsor of the Assumed Plans before full compliance with this Section 6.5 is achieved, during which some or all of the Purchaser Employees and other participants and beneficiaries of the Assumed Plans may not be able to (i) make (and Purchaser may not be able to process) elective deferral contributions, loan repayments, investment changes, distribution requests, benefit payment requests or reimbursement requests or (ii) exercise or enjoy other rights or features of the Assumed Plans, and that during such transition period Purchaser shall not be considered to be in violation of this Section 6.5. Notwithstanding the foregoing, Purchaser shall not assume or succeed to any of Sellers’ past, current or future Liabilities (including any withdrawal liability, termination liability or mass withdrawal liabilityplan) with respect to any multiemployer plan or all participants in the Retiree Welfare Plan (other than continuation rights described in Section 603(6) of ERISA). For the avoidance of doubt, any and all Liabilities with respect to which (x) Employee Plans or other employee benefits other than Assumed Employee Plans, and (y) except with respect to the Retiree Welfare Plan or as otherwise required by Treasury Regulation section 54.4980B-9, Q&A-8, persons other than Transferred Employees, shall remain with the Sellers and the Sellers’ Subsidiaries. The Sellers shall cooperate fully with the Purchaser to use all commercially reasonable efforts to effect such assumptions and assignments in accordance with applicable Law (including by obtaining any Seller required consents or any ERISA Affiliate contributes approvals and making all required filings) and the Sellers shall make to the Assumed Employee Plans all contributions or has ever contributedpremium payments, relating to the period up to the Closing Date whether or not required to be made prior to the Closing Date.

Assumed Plans. Purchaser shall notify Sellers in writing no later than two (2) Business Days prior to Effective as of the Closing as Date, to which Employee satisfy Section 5.7(c) and the applicable collective bargaining agreements, the Buyer shall assume sponsorship of and all obligations under, Liabilities with respect to, and assets (if any) with respect to, the Company Benefit Plans Purchaser shall adopt set forth on Schedule 5.7(f), including retirement plans and assume, if any a number of exclusively United States GasServ health and welfare benefit plans (the “Assumed Plans”). With respect ; provided, however, that notwithstanding the foregoing, Harsco GmbH shall retain all pension liabilities related to former employees or managing directors (or their respective entitled dependents in each Assumed Plan, Purchaser or, any entity designated by Purchaser, will be substituted for the applicable Seller as the plan sponsor under any such Assumed Plan and Purchaser shall have all rights case) of such Seller thereunder, including full authority to maintain, amend or terminate any such Assumed Plan at any time, in Purchaser’s sole discretion. Sellers agree to cooperate with Purchaser in adopting and effectuating any plan amendments Harsco GmbH that belonged to the Assumed Plans reasonably requested by PurchaserBusiness and that, so long as such amendments of the Closing, are effective as ofeither pensioners, or afterformer employees or managing directors with vested pension rights (or their respective entitled dependents in each case). The Company shall take all actions necessary to transfer such sponsorship, Liabilities, assets (if any), Plan records and Plan funding and service agreements to the Buyer as of the Closing Date and are consistent the Buyer shall reasonably cooperate with applicable Law and other agreements under which Sellers are obligatedthe Company in connection therewith. The parties agree Prior to cooperate in all respects and take the Closing, the Company shall cause the members of any actions necessary committee charged with administrative and/or fiduciary responsibility with respect to implement the assumption by Purchaser any of the Assumed PlansPlans to relinquish their membership in such committee effective as of the Closing Date. BeforeThe Buyer shall, or as soon as administratively practicable aftershall cause the Sold Companies to, the Closingappoint all administrators, Sellers will provide Purchaser with (i) all records concerning participation, vesting, accrual of benefits, payment of benefits, fiduciaries and election forms of benefits under each Assumed Plan, and (ii) any other information reasonably requested by Purchaser as necessary or appropriate others responsible for the administration Assumed Plans on and after the Closing Date. As of each Assumed Plan, each subject to the provision of consent by any Purchaser Employee to the extent and in the manner required by Law. Purchaser will make all required filings or reports with or to the IRS, or any other governmental agency, and the participants and their beneficiaries with respect to each Assumed Plan on a timely basis for all plan years ending before, on or after the Closing Date or as may be required soon as practicable thereafter, the Company shall direct the appropriate trustee (the “Trustee”) of a trust which provides funding for such Assumed Plan and which trust is not also being assumed with the Assumed Plan (the “Trust”) to transfer the assets held in the Trust with respect to such Assumed Plan, provided Plan in the initial deadline form of cash (or other marketable assets reasonably acceptable to the Buyer) from such Trust to a trust (or trusts) or other funding vehicle acceptable to the Company maintained or established by the Buyer for such filing or report Assumed Plan that is after tax-exempt (if the Closing Date. All parties recognize that funding vehicle is a reasonable transition period may be necessary after the Closing Date trust and prior to Purchaser’s implementation of its assumption is for a retirement plan) under Section 501(a) of the Assumed Plans before full compliance Code. The Company shall cause the Trustee to provide the Buyer with all pertinent information, reports and records held by the Trustee and reasonably requested by the Buyer documenting the value of the assets of the Trust and the transfer of same as set forth in this Section 6.5 is achieved, during which some or all of the Purchaser Employees and 5.7(f). Notwithstanding any other participants and beneficiaries of the Assumed Plans may not be able to (i) make (and Purchaser may not be able to process) elective deferral contributions, loan repayments, investment changes, distribution requests, benefit payment requests or reimbursement requests or (ii) exercise or enjoy other rights or features of the Assumed Plans, and that during such transition period Purchaser shall not be considered to be in violation provision of this Section 6.5Agreement to the contrary, any transfer of assets from a Trust shall be effected in accordance with all applicable Laws. Notwithstanding The Company shall cooperate with the foregoingBuyer to facilitate the assignment to, Purchaser shall or assumption by, the Buyer of any trust (if not assume transferred as provided above), insurance policy or succeed to any of Sellers’ past, current other Plan funding or future Liabilities (including any withdrawal liability, termination liability or mass withdrawal liability) service contract in effect at Closing with respect to any multiemployer plan to which any Seller or any ERISA Affiliate contributes or has ever contributedAssumed Plan.

Assumed Plans. Purchaser As of the Closing Date, Buyer shall notify Sellers in writing no later than two assume all of Seller's rights, obligations and Liabilities under the Pension and Retirement Plan for Franklin employees No. 401 and the Manchester Plan No. 401 (2the "Assumed Plans") Business Days and shall take such steps as are necessary to adopt and continue such Assumed Plans. Seller shall make all governmental filings and reports as may be due with respect to plan years of the Assumed Plans ending prior to the Closing as to which Employee Benefit Plans Purchaser shall adopt and assume, if any (the “Assumed Plans”). With respect to each Assumed Plan, Purchaser or, any entity designated by Purchaser, will be substituted for the applicable Seller as the plan sponsor under any such Assumed Plan and Purchaser shall have all rights of such Seller thereunder, including full authority to maintain, amend or terminate any such Assumed Plan at any time, in Purchaser’s sole discretion. Sellers agree to cooperate with Purchaser in adopting and effectuating any plan amendments to the Assumed Plans reasonably requested by Purchaser, so long as such amendments are effective as of, or after, the Closing Date and are consistent with applicable Law Buyer shall be responsible for governmental filings and other agreements under which Sellers are obligated. The parties agree to cooperate in all respects and take any actions necessary to implement the assumption by Purchaser of the Assumed Plans. Before, or as soon as administratively practicable after, the Closing, Sellers will provide Purchaser with (i) all records concerning participation, vesting, accrual of benefits, payment of benefits, and election forms of benefits under each Assumed Plan, and (ii) any other information reasonably requested by Purchaser as necessary or appropriate reports for the administration of each Assumed Plan, each subject to the provision of consent by any Purchaser Employee to the extent and in the manner required by Law. Purchaser will make all required filings or reports with or to the IRS, or any other governmental agency, and the participants and their beneficiaries with respect to each Assumed Plan on a timely basis for all plan years ending before, on or after the Closing Date or as may be required with respect to such Assumed Plan, provided the initial deadline for such filing or report is after the Closing Date. All parties recognize , provided, however, that a reasonable transition period may be necessary after Seller shall promptly assist Buyer in preparing such reports for the plan year in which the Closing Date and prior to Purchaser’s implementation of its assumption occurs. Following the Closing Date, Seller shall cause the trustee of the Assumed Plans before full compliance with this Section 6.5 is achieved, during which some or all of SPX Master Trust to continue to pay benefit payments under the Purchaser Employees and other participants and beneficiaries of the Assumed Plans may not be able to (i) make (and Purchaser may not be able to process) elective deferral contributions, loan repayments, investment changes, distribution requests, benefit payment requests or reimbursement requests or (ii) exercise or enjoy other rights or features terms of the Assumed Plans, so as to avoid any interruption in benefit payments to persons entitled thereto. Within 90 days after the Closing Date, Buyer shall notify Seller in writing of the Tax-qualified pension trust maintained by Buyer that will be the recipient of the assets of the Assumed Plans, and, within 90 days thereafter, Seller shall cause the assets of the SPX Master Trust properly allocable to the Assumed Plans (less the amount of subsequent benefit payments, less the amounts of allocable expenses and that during such transition period Purchaser shall not be considered other proper charges) to be in violation transferred to the trustee of this Section 6.5such successor trust. Notwithstanding Seller and Buyer agree to execute, at or after the foregoingClosing Date, Purchaser shall not assume such succession agreements or succeed assignment agreements as may be necessary to any effectuate properly the transfer of Sellers’ pastthe administration, current or future sponsorship, assets and Liabilities (including any withdrawal liability, termination liability or mass withdrawal liability) with respect relating to any multiemployer plan to which any Seller or any ERISA Affiliate contributes or has ever contributedthe Assumed Plan.