Common use of Seller Plans Clause in Contracts

Seller Plans. (a) Except as expressly set forth herein, Seller or its designated Affiliates shall retain or reimburse Buyer for all liabilities and obligations (including any underfunding of defined benefit plans as of the Closing Date) in respect of benefits accrued under all benefit plans or arrangements maintained, administered or contributed to by Seller or its Affiliates, including the Employee Plans and International Plans, in respect of each Transferred Employee, employee, or former employee (including any beneficiary thereof). Except as expressly set forth herein, no assets of any benefit plans or arrangements maintained, administered or contributed to by Seller or any Affiliate thereof, including any Employee Plan or International Plan, shall be transferred to Buyer or any of its Affiliates or to any plan of Buyer or any of its Affiliates; PROVIDED, that Seller shall not retain, and Buyer shall assume, any and all obligations and liabilities with respect to benefits accrued by Transferred Employees during the transitional services period as provided for in Annex J; and PROVIDED FURTHER, that in the case of any Employee Plan or International Plan maintained by an Acquired Subsidiary (an "ACQUIRED SUBSIDIARY PLAN") and pursuant to which such Acquired Subsidiary (or any other Affiliate of Buyer) will retain any pre-closing liabilities after the Closing Date, any assets maintained in connection with such liabilities by such Acquired Subsidiary (or in a trust or similar entity established by such Acquired Subsidiary) immediately prior to the Closing Date shall continue to be maintained by such Acquired Subsidiary or entity after the Closing Date. Benefit accruals in respect of Transferred Employees under any Employee Plan or International Plan other than an Acquired Subsidiary Plan shall cease at the later of the Closing Date or end of the transitional period as provided for in Annex J. Seller and Buyer agree that, except where alternative arrangements have been specifically agreed in writing between Buyer and Seller, all liabilities of Acquired Subsidiaries under existing Acquired Subsidiary Plans providing for retirement, deferred compensation or similar benefits (an "ACQUIRED SUBSIDIARY RETIREMENT PLAN") shall be retained by the applicable Acquired Subsidiary following the Closing. Following the Closing, Seller and Buyer shall use their best efforts, and shall cause their respective actuaries to cooperate, to agree on the actuarial present value of the unfunded liabilities that are retained by Acquired Subsidiaries under each Acquired Subsidiary Retirement Plan pursuant to FASB 87 as of the Closing Date (such present value with respect to each such Plan, the "PRE-CLOSING ACQUIRED SUBSIDIARY PLAN OBLIGATION" with respect to such Plan). If during the 90-day period following the Closing Date (or, in the case of Acquired Subsidiary Retirement Plans for which plan documents were not made available to Buyer or one of its Affiliates prior to the Closing Date, within the 90-day period following the discovery thereof), Seller and Buyer are unable to agree on the Pre-Closing Acquired Subsidiary Plan Obligation with respect to any Acquired Subsidiary Retirement Plan, they shall promptly refer the matter to a mutually acceptable, internationally recognized actuarial firm with no material relationship with Buyer, Seller or their Affiliates (the "ACTUARIAL REFEREE"). The parties shall instruct the Actuarial Referee to determine the Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan as promptly as practicable, and such determination shall be final and binding upon Seller and Buyer. The costs of the review by the Actuarial Referee shall be borne equally by Seller and Buyer. "FINAL PRE-CLOSING ACQUIRED SUBSIDIARY PLAN OBLIGATION" with respect to any Acquired Subsidiary Retirement Plan shall mean (i) the Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan as mutually agreed between Buyer and Seller or, (ii) in the event such matter is submitted to the Actuarial Referee, the Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan as determined by the Actuarial Referee. Within 10 days after the Final Pre-Closing Acquired Subsidiary Plan Obligation with respect to any Acquired Subsidiary Retirement Plan has been determined, Seller shall pay to Buyer an amount equal to the Final Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan, together with interest on such amount from and including the Closing Date to but excluding the date of payment, at the Calculation Rate and based on the Calculation Method. All liabilities with respect to benefits under the Acquired Subsidiary Retirement Plans as of and after the Closing Date shall be Assumed Liabilities. All health care and dependant care flexible spending accounts maintained with respect to Transferred Employees under the Seller's cafeteria plan shall be transferred to the Buyer or one of its Affiliates. (i) Article 9 of the Purchase Agreement is hereby further amended by inserting the following section immediately following the last sentence of Section 9.05:

Seller Plans. (a) Except as expressly set forth hereinAs of the Closing Date, Seller agrees to take all action necessary, including amendment of the Retirement Pension Plan for Employees of JPS Automotive L.P. (the "Seller's Retirement Plan") to fully vest the accrued benefits of all Transferred Business Employees under the Seller's Retirement Plan. Accrued benefits having an actuarial present value of $3,500 or its designated Affiliates less based on the interest assumption currently in the Sellers's Retirement Plan for such purpose will automatically be cashed out in accordance with current provisions of such plan and shall retain or reimburse Buyer be eligible for all liabilities and obligations direct rollover at the distributee's election. (including any underfunding of defined benefit plans b) Purchaser shall, effective as of the Closing Date, establish or designate a plan intended to qualify under Section 401(a) of the Code and a trust maintained thereunder intended to be exempt from federal income taxation under Section 401 of the Code for the benefit of Transferred Business Employees ("Purchaser's Plan"). Purchaser shall cause Purchaser's Plan to accept as a rollover contribution, pursuant to Sections 401(a)(31) and 402(c) of the Code, the lump sum value of the accrued benefits from Seller's Retirement Plan as to which Transferred Business Employees' designate Purchaser's Plan as the recipient of rollover contributions. Seller agrees to notify the Transferred Business Employees that if they receive a lump sum distribution from Seller's Retirement Plan they have the option to take such distribution in respect cash or make a direct rollover pursuant to Sections 401(a)(31) and 402(c) of benefits accrued under all the Code to an individual retirement account or annuity or to Purchaser's Plan. All such rollover contributions shall be required to be in cash. Purchaser agrees to accept rollover contributions from Transferred Business Employees who elect to make such rollover within 180 days following the Closing Date. (c) The Business Employees participate in the Savings, Investment and Profit Sharing Plan of JPS Automotive, L.P. ("Seller's Savings Plan"). No earlier than January 1, 1998 and no later than March 31, 1998 (or as soon as practicable thereafter), the Seller shall cause the trustee of the Seller's Savings Plan to transfer to the funding agent of Purchaser's Plan, for the benefit plans or arrangements maintainedof Transferred Business Employees, administered or contributed an amount, in cash, equal to by Seller or its Affiliatesthe total account balances, including actual investment earnings or losses through the Employee Plans date of the last valuation, held under the Seller's Savings Plan for the Transferred Business Employees, except for any amounts as to which withdrawal requests have been duly submitted prior to such transfer and International Planswhich shall be paid by the Seller's Savings Plan to Transferred Business Employees in accordance with ERISA and the Code and the terms of the Seller's Savings Plan (the "Transferred Assets"). Purchaser's Plan shall provide, in respect as of the date of such transfer, benefits for each Transferred Employee, employee, or former employee Business Employee which are equal to such Transferred Business Employees' respective account balances (including any beneficiary thereof). Except net earnings or losses accrued thereon from the Closing Date to the actual date of the last valuation) under the Seller's Savings Plan as expressly set forth herein, no assets of any benefit plans or arrangements maintained, administered or contributed the date of the last valuation in addition to by Seller or any Affiliate thereof, including any Employee Plan or International Plan, shall be transferred to Buyer or any of its Affiliates or to any plan of Buyer or any of its Affiliates; PROVIDED, that Seller shall not retain, and Buyer shall assume, any and all obligations and liabilities with respect to benefits accrued by Transferred Employees during the transitional services period as provided for in Annex J; and PROVIDED FURTHER, that in the case of any Employee Plan or International Plan maintained by an Acquired Subsidiary account balance (an "ACQUIRED SUBSIDIARY PLAN"if any) and pursuant to which such Acquired Subsidiary (or any other Affiliate of Buyer) will retain any pre-closing liabilities after the Closing Date, any assets maintained Transferred Business Employees are entitled based on their participation in connection with such liabilities by such Acquired Subsidiary (or in a trust or similar entity established by such Acquired Subsidiary) immediately prior to the Closing Date shall continue to be maintained by such Acquired Subsidiary or entity Purchaser's Plan on and after the Closing Date. Benefit accruals in respect of Transferred Employees under any Employee Plan or International Plan other than an Acquired Subsidiary Plan shall cease at Pending the later transfer of the Closing Date or end Transferred Assets, the accounts of the transitional period as provided Transferred Business Employees shall remain in the trust fund for in Annex J. the Seller's Savings Plan and Seller and Buyer agree that, except where alternative arrangements have been specifically agreed in writing between Buyer and Seller, all liabilities of Acquired Subsidiaries under existing Acquired Subsidiary Plans providing for retirement, deferred compensation or similar benefits (an "ACQUIRED SUBSIDIARY RETIREMENT PLAN") shall be retained by the applicable Acquired Subsidiary following the Closing. Following the Closing, Seller and Buyer shall use their best efforts, and shall cause their respective actuaries to cooperate, to agree on the actuarial present value trustee of the unfunded liabilities that are retained by Acquired Subsidiaries under each Acquired Subsidiary Retirement Seller's Savings Plan pursuant to FASB 87 pay any current benefits or make any distributions to Transferred Business Employees, including but not limited to such benefits as may be payable to Transferred Business Employees on account of termination of employment with Purchaser, as they become due. Between the date hereof and the date of transfer of the Closing Date (such present value with respect to each such Plan, the "PRE-CLOSING ACQUIRED SUBSIDIARY PLAN OBLIGATION" with respect to such Plan). If during the 90-day period following the Closing Date (or, in the case of Acquired Subsidiary Retirement Plans for which plan documents were not made available to Buyer or one of its Affiliates prior to the Closing Date, within the 90-day period following the discovery thereof), Seller and Buyer are unable to agree on the Pre-Closing Acquired Subsidiary Plan Obligation with respect to any Acquired Subsidiary Retirement Plan, they shall promptly refer the matter to a mutually acceptable, internationally recognized actuarial firm with no material relationship with Buyer, Seller or their Affiliates (the "ACTUARIAL REFEREE"). The parties shall instruct the Actuarial Referee to determine the Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan as promptly as practicable, and such determination shall be final and binding upon Seller and Buyer. The costs of the review by the Actuarial Referee shall be borne equally by Seller and Buyer. "FINAL PRE-CLOSING ACQUIRED SUBSIDIARY PLAN OBLIGATION" with respect to any Acquired Subsidiary Retirement Plan shall mean (i) the Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan as mutually agreed between Buyer and Seller or, (ii) in the event such matter is submitted to the Actuarial Referee, the Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan as determined by the Actuarial Referee. Within 10 days after the Final Pre-Closing Acquired Subsidiary Plan Obligation with respect to any Acquired Subsidiary Retirement Plan has been determinedTransferred Assets, Seller shall pay to Buyer an amount equal to the Final Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan, together with interest on such amount from and including the Closing Date to but excluding the date of payment, at the Calculation Rate and based on the Calculation Method. All liabilities with respect to benefits under the Acquired Subsidiary Retirement Plans as of and after the Closing Date shall be Assumed Liabilities. All health care and dependant care flexible spending accounts maintained with respect to Transferred Employees under administer the Seller's cafeteria plan shall be transferred to Savings Plan in compliance with all the Buyer or one of its Affiliatesapplicable laws. (id) Article 9 Seller and Purchaser agree to provide each other with such records and information as they may reasonably request relating to their respective obligations under this section or the administration of the Purchase Agreement is hereby further amended by inserting the following section immediately following the last sentence of Section 9.05:Seller's Savings Plan or Purchaser's Plan.

Seller Plans. (a) Except as expressly set forth hereinUnless the Purchaser assumes and adopts a Seller Plan, the Seller or its designated Affiliates shall retain or reimburse Buyer for take all liabilities and obligations (including any underfunding of defined benefit plans necessary actions to cause all Active ML Employees to cease active participation in all Seller Plans effective as of the Closing Dateto the extent permitted under Law and such Seller Plan. Without limiting any of Seller’s rights under this Agreement (including under Section 10.2(c) in respect below), Seller, at its cost and expense, will administer the wind up of benefits accrued the 401(k) plan related to Employees and the distribution of funds from such plan. (b) Without limiting the generality of Section 2.3, the Purchaser shall assume all current, contingent and future Liabilities, whether known or unknown, under all Seller Plans (which for the avoidance of doubt includes all benefit plans obligations in connection with current or arrangements maintained, administered or contributed past service including claims incurred but not yet reported) related to by Seller or its Affiliates, including the Employee Plans ML Employees (other than Transition Services Employees) and International Plans, in respect of each Transferred Employee, employee, or former employee (including any beneficiary thereof). Except as expressly set forth herein, no assets of any benefit plans or arrangements maintained, administered or contributed to by Seller or any Affiliate thereoftheir spouses and dependents, including any Employee such Liabilities resulting from the transactions contemplated by this Agreement. To the extent any Liabilities under any Seller Plan or International Plan, shall required to be assumed by Purchaser cannot be directly transferred to Buyer or any of its Affiliates or to any plan of Buyer or any of its Affiliates; PROVIDED, that Seller shall not retain, and Buyer shall assume, any and all obligations and liabilities with respect to benefits accrued by Transferred Employees during the transitional services period as provided for in Annex J; and PROVIDED FURTHER, that in the case of any Employee Plan or International Plan maintained by an Acquired Subsidiary (an "ACQUIRED SUBSIDIARY PLAN") and pursuant to which such Acquired Subsidiary Purchaser (or an applicable Purchaser benefit plan), the Purchaser shall reimburse the Seller or the Acquired Companies for such Liabilities, including any other Affiliate of Buyer) will retain any pre-closing liabilities after Taxes paid by the Closing Date, any assets maintained Acquired Companies in connection with such liabilities Liabilities. The Purchaser shall reimburse the Acquired Companies for any Taxes paid by such the Acquired Subsidiary (or Companies to the extent not incorporated in a trust or similar entity established by such Acquired Subsidiary) immediately prior to the Closing Date shall continue Working Capital (as defined in the Stock Purchase Agreement) (which are not otherwise required to be maintained withheld from Option proceeds paid to Option holders) in connection with the termination of the Options (as defined in the Stock Purchase Agreement) held by any ML Employee (other than Transition Services Employees). (c) The Purchaser shall reimburse the Acquired Companies and the Seller for any Tax (which for the avoidance of doubt shall include any increase in Taxes payable as a result of a loss of deduction and any interest or penalties paid in connection with such Tax for purposes of this Section 10.2(c)) which is paid by the Acquired Companies or the Seller in connection with any Seller Plan which is directly attributable to an ML Employee (other than Transition Services Employees), or their respective spouses and dependents. To the extent any Tax is paid by the Acquired Companies or the Seller in connection with any Seller Plan and such Tax cannot be reasonably directly attributed to current or former employees of the Acquired Companies, the Purchaser shall reimburse the Acquired Companies or Seller for such Taxes based on the ratio of Active ML Employees to all Employees. (d) Without limiting the generality of Section 2.3 or Section 10.2, the Purchaser shall provide continuation coverage required under Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code for any individual who is an “M&A qualified beneficiary” as defined in Q&A-4 of Treas. Reg. §54.4980B-9 in connection with the transactions contemplated by this Agreement, including, but not limited to, the requirement to deliver timely notices pursuant to Section 4980D(g)(6) of the Code. For the avoidance of doubt, this Section 10.2(d) shall not require the Purchaser to provide continuation coverage for any Former Cap Employee. (e) The Seller shall reimburse the Purchaser for the cost of (i) any severance required to be paid by the Purchaser to any Transition Services Employee whose employment with the Purchaser is terminated following the completion of services provided by such Acquired Subsidiary or entity after Person under the Closing Date. Benefit accruals in respect of Transferred Employees under any Employee Plan or International Plan other than an Acquired Subsidiary Plan shall cease at the later of the Closing Date or end of the transitional period as provided for in Annex J. Seller and Buyer agree thatTransition Services Agreement, except where alternative arrangements have been specifically agreed in writing between Buyer and Seller, all liabilities of Acquired Subsidiaries under existing Acquired Subsidiary Plans providing for retirement, deferred compensation or similar benefits (an "ACQUIRED SUBSIDIARY RETIREMENT PLAN") shall be retained by the applicable Acquired Subsidiary following the Closing. Following the Closing, Seller and Buyer shall use their best efforts, and shall cause their respective actuaries to cooperate, to agree based on the actuarial present value of severance formula set forth on Schedule 10.2(e)(i); and (ii) any stay bonuses paid by Purchaser to any Transition Services Employee, provided that such stay bonuses will only be paid by Purchaser to any such Transition Services Employee strictly in accordance with written instructions provided by Seller to Purchaser. The Purchaser and the unfunded liabilities that are retained by Acquired Subsidiaries under each Acquired Subsidiary Retirement Plan pursuant Seller also agree to FASB 87 as of comply with the Closing Date (such present value provisions set forth in Schedule 10.2(e)(ii) with respect to each certain of the employees from Closing. (f) The Purchaser shall use reasonable efforts to provide, or to cause any relevant third party to provide, such Plandocumentation, information and assistance as is specifically requested by the "PRE-CLOSING ACQUIRED SUBSIDIARY PLAN OBLIGATION" Seller and is reasonably necessary for the Seller to comply with the requirements of the Patient Protection and Affordable Care Act and other Laws applicable to Seller Plans with respect to such Plan). If during the 90-day period following the Closing Date (or, in the case of Acquired Subsidiary Retirement Plans for which plan documents were not made available to Buyer or one of its Affiliates prior to the Closing Date, within the 90-day period following the discovery thereof), Seller Employees and Buyer are unable to agree on the Pre-Closing Acquired Subsidiary Plan Obligation with respect to any Acquired Subsidiary Retirement Plan, they shall promptly refer the matter to a mutually acceptable, internationally recognized actuarial firm with no material relationship with Buyer, Seller or their Affiliates (the "ACTUARIAL REFEREE"). The parties shall instruct the Actuarial Referee to determine the Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan as promptly as practicable, and such determination shall be final and binding upon Seller and Buyer. The costs of the review by the Actuarial Referee shall be borne equally by Seller and Buyer. "FINAL PRE-CLOSING ACQUIRED SUBSIDIARY PLAN OBLIGATION" with respect to any Acquired Subsidiary Retirement Plan shall mean (i) the Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan as mutually agreed between Buyer and Seller or, (ii) in the event such matter is submitted to the Actuarial Referee, the Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan as determined by the Actuarial Referee. Within 10 days after the Final Pre-Closing Acquired Subsidiary Plan Obligation with respect to any Acquired Subsidiary Retirement Plan has been determined, Seller shall pay to Buyer an amount equal to the Final Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan, together with interest on such amount from and including the Closing Date to but excluding the date of payment, at the Calculation Rate and based on the Calculation Method. All liabilities with respect to benefits under the Acquired Subsidiary Retirement Plans as of and after the Closing Date shall be Assumed Liabilities. All health care and dependant care flexible spending accounts maintained with respect to Transferred Employees under the Seller's cafeteria plan shall be transferred to the Buyer or one of its AffiliatesFormer Employees. (i) Article 9 of the Purchase Agreement is hereby further amended by inserting the following section immediately following the last sentence of Section 9.05:

Seller Plans. (a) Except as expressly otherwise set forth hereinin this Section 6.2, Seller or its designated Affiliates the Asset Purchaser shall retain or reimburse Buyer for all liabilities take such actions as are commercially reasonable to adopt and obligations (including any underfunding of defined benefit plans assume, as of the Closing Date) , each of the Assumed Plans, except such Seller Plans that are Assumed Plans by operation of law. The Sellers agree to cooperate with the Asset Purchaser in respect the assumption of benefits accrued under all benefit plans or arrangements maintained, administered or contributed to by Seller or its Affiliatesthe Assumed Plans, including adopting and effectuating any plan amendments to the Employee Assumed Plans and International Plansreasonably desired by the Purchaser, in respect of each Transferred Employee, employeeso long as such amendments are effective as of, or former employee (including any beneficiary thereof). Except as expressly set forth hereinafter, no assets of any benefit plans or arrangements maintained, administered or contributed to by Seller or any Affiliate thereof, including any Employee Plan or International Plan, shall be transferred to Buyer or any of its Affiliates or to any plan of Buyer or any of its Affiliates; PROVIDED, that Seller shall not retain, and Buyer shall assume, any and all obligations and liabilities with respect to benefits accrued by Transferred Employees during the transitional services period as provided for in Annex J; and PROVIDED FURTHER, that in the case of any Employee Plan or International Plan maintained by an Acquired Subsidiary (an "ACQUIRED SUBSIDIARY PLAN") and pursuant to which such Acquired Subsidiary (or any other Affiliate of Buyer) will retain any pre-closing liabilities after the Closing Date, any assets maintained in connection with such liabilities by such Acquired Subsidiary (or in a trust or similar entity established by such Acquired Subsidiary) immediately prior to the Closing Date shall continue to be maintained and are consistent with applicable Law. Twenty-eight (28) days before the Closing, the Sellers will supply the Asset 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 such Acquired Subsidiary the Asset Purchaser as necessary or entity after appropriate for the Closing Dateadministration of each Assumed Plan. Benefit accruals in respect of Transferred Employees under any Employee Plan or International Plan other than an Acquired Subsidiary Plan shall cease at the later Effective as of the Closing Date (or end such later date that an Employee becomes a Transferred Employee), each Transferred Employee shall cease to be covered by the Excluded Plans. (b) Each Employee who becomes an employee of the transitional period as provided for in Annex J. Seller and Buyer agree that, except where alternative arrangements have been specifically agreed in writing between Buyer and Seller, all liabilities of Acquired Subsidiaries under existing Acquired Subsidiary Plans providing for retirement, deferred compensation or similar benefits (an "ACQUIRED SUBSIDIARY RETIREMENT PLAN") shall be retained by the applicable Acquired Subsidiary following the Closing. Following the Closing, Seller and Buyer shall use their best efforts, and shall cause their respective actuaries to cooperate, to agree on the actuarial present value of the unfunded liabilities that are retained by Acquired Subsidiaries under each Acquired Subsidiary Retirement Plan pursuant to FASB 87 Asset Purchaser effective as of the Closing Date shall receive service credit, to the extent permissible under applicable law and in accordance with the terms of the Purchaser’s employee benefits plans and arrangements, for all service with Sellers or their respective Affiliates for purposes of eligibility, vesting and level of benefits (such present value with respect to each such Planvacation and severance, the "PRE-CLOSING ACQUIRED SUBSIDIARY PLAN OBLIGATION" if any), but not with respect to benefit accrual, provided that no such Plan). If during crediting shall require or cause the 90-day period following the Closing Date (or, in the case payment of Acquired Subsidiary Retirement Plans for which plan documents were benefits not made available to Buyer or one of its Affiliates prior otherwise payable pursuant to the Closing Date, within the 90-day period following the discovery thereof), Seller and Buyer are unable to agree on the Pre-Closing Acquired Subsidiary Plan Obligation with respect to any Acquired Subsidiary Retirement Plan, they shall promptly refer the matter to a mutually acceptable, internationally recognized actuarial firm with no material relationship with Buyer, Seller or their Affiliates (the "ACTUARIAL REFEREE"). The parties shall instruct the Actuarial Referee to determine the Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan as promptly as practicable, and such determination shall be final and binding upon Seller and Buyer. The costs terms of the review by the Actuarial Referee shall be borne equally by Seller Asset Purchaser’s employee benefits plans and Buyer. "FINAL PRE-CLOSING ACQUIRED SUBSIDIARY PLAN OBLIGATION" with respect to any Acquired Subsidiary Retirement Plan shall mean (i) the Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan as mutually agreed between Buyer and Seller or, (ii) arrangements or result in the event such matter is submitted to the Actuarial Referee, the Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan as determined by the Actuarial Referee. Within 10 days after the Final Pre-Closing Acquired Subsidiary Plan Obligation with respect to any Acquired Subsidiary Retirement Plan has been determined, Seller shall pay to Buyer an amount equal to the Final Pre-Closing Acquired Subsidiary Plan Obligation with respect to such Plan, together with interest on such amount from and including the Closing Date to but excluding the date a duplication of payment, at the Calculation Rate and based on the Calculation Method. All liabilities with respect to benefits under the Acquired Subsidiary Retirement Plans as of and after the Closing Date shall be Assumed Liabilities. All health care and dependant care flexible spending accounts maintained with respect to Transferred Employees under the Seller's cafeteria plan shall be transferred to the Buyer or one of its Affiliatesbenefits. (i) Article 9 of the Purchase Agreement is hereby further amended by inserting the following section immediately following the last sentence of Section 9.05: