Underfunded Liability in the Scheme. In respect of the Scheme, the Seller agrees to pay the Purchaser an amount (the "Underfunded Liability") equal to the excess (if any) of the projected benefit obligations, calculated as of the Closing Date, with respect to all current or former participants of the Scheme over the value of the assets of the Scheme (together with any accrued contributions) as of the Closing Date and on the assumption that no retrospective amendments are made to the trust deed and rules of the Scheme as in effect immediately prior to the Closing Date. The Underfunded Liability will then be adjusted by the Investment Adjustment (as defined below) from and including the Closing Date up to and including the date which is the last UK business day before the date on which the Underfunded Liability is paid to the Purchaser (the "Adjusted Underfunded Liability"). The Underfunded Liability and the Investment Adjustment will be determined using the actuarial methods, assumptions and factors to be agreed between the Seller and the Purchaser. Seller and Purchaser agree to cooperate in determining the amount of the Underfunded Liability and in preparing an estimate of the Adjusted Underfunded Liability as soon as practicable after the Closing Date. If the Seller and Purchaser are unable to determine the amount of the Underfunded Liability or the amount of the Investment Adjustment on or before the three-month anniversary of the Closing Date, the matter will be referred to an independent actuary chosen by agreement between the parties or, failing agreement, appointed by the President of the Institute of Actuaries of England on the application of either the Seller or Purchaser. That independent actuary will act as expert and not as arbitrator and his decision (including any direction in relation to his costs) will be final and binding and the fees and expenses of the independent actuary shall be borne by the Seller and Purchaser equally or in such other proportions as he directs. For the purposes of this Section 6.06, "Investment Adjustment" means the notional investment return of the Scheme (if any) over the relevant period specified in this section calculated by comparing the level of the Index at close of business on the first day of such period with the level of the Index at close of business on the last day of such period or, if either of those days is not a day for which the indices comprising the Index are quoted, the level of the Index at the close of business on the previous day for which they are quoted is used and making reasonable allowance for investment expenses. "Index" means an index agreed by the Seller and the Purchaser as of the Closing Date comprising of the same proportion and composition of investments in which the assets of the Scheme are invested as of the Closing Date. The Adjusted Underfunded Liability shall be calculated and payable in UK pounds sterling. If, in accordance with the trust deed and rules of the Scheme and applicable Law, the trustees of the Scheme may, without the consent of any other party, demand from the Purchaser and/or the Pershing Companies a payment or payments in respect of the underfunding (if any) of the Scheme on the Closing Date (disregarding for the purpose of determining such underfunding any change in the investment policy or values on or after the Closing Date or any retrospective amendments made to the trust deed and rules of the Scheme after the Closing Date which have the effect of increasing the underfunding of the Scheme on the Closing Date) (the "Trustees' Demand") and if the Purchaser and/or any of the Pershing Companies are, in accordance with the trust deed and rules of the Scheme and applicable Law, obligated to pay the Trustees' Demand, the Seller shall pay to the Purchaser the amount by which the Trustees' Demand exceeds the Adjusted Underfunded Liability provided that the Purchaser shall have used its best efforts to minimize the amount of the Trustees' Demand and to procure that the Trustees' Demand is determined on or before the twelve month anniversary of the Closing Date. The Purchaser shall or shall cause the Pershing Companies to pay to the Scheme the full amount received from the Seller pursuant to this Section 6.06. If the Purchaser and/or the Pershing Companies obtain any Tax Benefit as a result of contributing any amount which is received from the Seller under this Section 6.06 to the Scheme, the Purchaser will reimburse the Seller in an amount equal to the value of the Tax Benefit (if any). The certificate of the auditors to the company appointed for the purposes of the Companies Acts or other applicable Law which obtains the Tax Benefit as to the fact that a Tax Benefit has or has not been obtained and the amount of the Tax Benefit shall be final and binding on the Seller and the Purchaser. For purposes of this Section 6.06, "Tax Benefit" means the amount of a reduction in the tax liability of the Purchaser and/or the Pershing Companies or a repayment of any tax to the Purchaser and/or the Pershing Companies which is exclusively attributable to the contribution of any amount which is received from the Seller under this Section 6.06 to the Scheme.
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Samples: Transaction Agreement (Credit Suisse First Boston Usa Inc), Transaction Agreement (Credit Suisse Group)
Underfunded Liability in the Scheme. In respect of the Scheme, the Seller agrees to pay the Purchaser an amount (the "Underfunded Liability") equal to the excess (if any) of the projected benefit obligations, calculated as of the Closing Date, with respect to all current or former participants of the Scheme over the value of the assets of the Scheme (together with any accrued contributions) as of the Closing Date and on the assumption that no retrospective amendments are made to the trust deed and rules of the Scheme as in effect immediately prior to the Closing Date. The Underfunded Liability will then be adjusted by the Investment Adjustment (as defined below) from and including the Closing Date up to and including the date which is the last UK business day before the date on which the Underfunded Liability is paid to the Purchaser (the "Adjusted Underfunded Liability"). The Underfunded Liability and the Investment Adjustment will be determined using the actuarial methods, assumptions and factors to be agreed between the Seller and the Purchaser. Seller and Purchaser agree to cooperate in determining the amount of the Underfunded Liability and in preparing an estimate of the Adjusted Underfunded Liability as soon as practicable after the Closing Date. If the Seller and Purchaser are unable to determine the amount of the Underfunded Liability or the amount of the Investment Adjustment on or before the three-month anniversary of the Closing Date, the matter will be referred to an independent actuary chosen by agreement between the parties or, failing agreement, appointed by the President of the Institute of Actuaries of England on the application of either the Seller or Purchaser. That independent actuary will act as expert and not as arbitrator and his decision (including any direction in relation to his costs) will be final and binding and the fees and expenses of the independent actuary shall be borne by the Seller and Purchaser equally or in such other proportions as he directs. For the purposes of this Section 6.06, "Investment Adjustment" means the notional investment return of the Scheme (if any) over the relevant period specified in this section calculated by comparing the level of the Index at close of business on the first day of such period with the level of the Index at close of business on the last day of such period or, if either of those days is not a day for which the indices comprising the Index are quoted, the level of the Index at the close of business on the previous day for which they are quoted is used and making reasonable allowance for investment expenses. "Index" means an index agreed by the Seller and the Purchaser as of the Closing Date comprising of the same proportion and composition of investments in which the assets of the Scheme are invested as of the Closing Date. The Adjusted Underfunded Liability shall be calculated and payable in UK pounds sterling. 36 If, in accordance with the trust deed and rules of the Scheme and applicable Law, the trustees of the Scheme may, without the consent of any other party, demand from the Purchaser and/or the Pershing Companies a payment or payments in respect of the underfunding (if any) of the Scheme on the Closing Date (disregarding for the purpose of determining such underfunding any change in the investment policy or values on or after the Closing Date or any retrospective amendments made to the trust deed and rules of the Scheme after the Closing Date which have the effect of increasing the underfunding of the Scheme on the Closing Date) (the "Trustees' Demand") and if the Purchaser and/or any of the Pershing Companies are, in accordance with the trust deed and rules of the Scheme and applicable Law, obligated to pay the Trustees' Demand, the Seller shall pay to the Purchaser the amount by which the Trustees' Demand exceeds the Adjusted Underfunded Liability provided that the Purchaser shall have used its best efforts to minimize the amount of the Trustees' Demand and to procure that the Trustees' Demand is determined on or before the twelve month anniversary of the Closing Date. The Purchaser shall or shall cause the Pershing Companies to pay to the Scheme the full amount received from the Seller pursuant to this Section 6.06. If the Purchaser and/or the Pershing Companies obtain any Tax Benefit as a result of contributing any amount which is received from the Seller under this Section 6.06 to the Scheme, the Purchaser will reimburse the Seller in an amount equal to the value of the Tax Benefit (if any). The certificate of the auditors to the company appointed for the purposes of the Companies Acts or other applicable Law which obtains the Tax Benefit as to the fact that a Tax Benefit has or has not been obtained and the amount of the Tax Benefit shall be final and binding on the Seller and the Purchaser. For purposes of this Section 6.06, "Tax Benefit" means the amount of a reduction in the tax liability of the Purchaser and/or the Pershing Companies or a repayment of any tax to the Purchaser and/or the Pershing Companies which is exclusively attributable to the contribution of any amount which is received from the Seller under this Section 6.06 to the Scheme.
Appears in 1 contract
Samples: Transaction Agreement
Underfunded Liability in the Scheme. In respect of the Scheme, the Seller agrees to pay the Purchaser an amount (the "Underfunded Liability") equal to the excess (if any) of the projected benefit obligations, calculated as of the Closing Date, with respect to all current or former participants of the Scheme over the value of the assets of the Scheme (together with any accrued contributions) as of the Closing Date and on the assumption that no retrospective amendments are made to the trust deed and rules of the Scheme as in effect immediately prior to the Closing Date. The Underfunded Liability will then be adjusted by the Investment Adjustment (as defined below) from and including the Closing Date up to and including the date which is the last UK business day before the date on which the Underfunded Liability is paid to the Purchaser (the "Adjusted Underfunded Liability"). The Underfunded Liability and the Investment Adjustment will be determined using the actuarial methods, assumptions and factors to be agreed between the Seller and the Purchaser. Seller and Purchaser agree to cooperate in determining the amount of the Underfunded Liability and in preparing an estimate of the Adjusted Underfunded Liability as soon as practicable after the Closing Date. If the Seller and Purchaser are unable to determine the amount of the Underfunded Liability or the amount of the Investment Adjustment on or before the three-month anniversary of the Closing Date, the matter will be referred to an independent actuary chosen by agreement between the parties or, failing agreement, appointed by the President of the Institute of Actuaries of England on the application of either the Seller or Purchaser. That independent actuary will act as expert and not as arbitrator and his decision (including any direction in relation to his costs) will be final and binding and the fees and expenses of the independent actuary shall be borne by the Seller and Purchaser equally or in such other proportions as he directs. For the purposes of this Section 6.06, "Investment Adjustment" means the notional investment return of the Scheme (if any) over the relevant period specified in this section calculated by comparing the level of the Index at close of business on the first day of such period with the level of the Index at close of business on the last day of such period or, if either of those days is not a day for which the indices comprising the Index are quoted, the level of the Index at the close of business on the previous day for which they are quoted is used and making reasonable allowance for investment expenses. "Index" means an index agreed by the Seller and the Purchaser as of the Closing Date comprising of the same proportion and composition of investments in which the assets of the Scheme are invested as of the Closing Date. The Adjusted Underfunded Liability shall be calculated and payable in UK pounds sterling. If, in accordance with the trust deed and rules of the Scheme and applicable Law, the trustees of the Scheme may, without the consent of any other party, demand from the Purchaser and/or the Pershing Companies a payment or payments in respect of the underfunding (if any) of the Scheme on the Closing Date (disregarding for the purpose of determining such underfunding any change in the investment policy or values on or after the Closing Date or any retrospective amendments made to the trust deed and rules of the Scheme after the Closing Date which have the effect of increasing the underfunding of the Scheme on the Closing Date) (the "Trustees' Demand") and if the Purchaser and/or any of the Pershing Companies are, in accordance with the trust deed and rules of the Scheme and applicable Law, obligated to pay the Trustees' Demand, the Seller shall pay to the Purchaser the amount by which the Trustees' Demand exceeds the Adjusted Underfunded Liability provided that the Purchaser shall have used its best efforts to minimize the amount of the Trustees' Demand and to procure that the Trustees' Demand is determined on or before the twelve month anniversary of the Closing Date. The Purchaser shall or shall cause the Pershing Companies to pay to the Scheme the full amount received from the Seller pursuant to this Section 6.06. If the Purchaser and/or the Pershing Companies obtain any Tax Benefit as a result of contributing any amount which is received from the Seller under this Section 6.06 to the Scheme, the Purchaser will reimburse the Seller in an amount equal to the value of the Tax Benefit (if any). The certificate of the auditors to the company appointed for the purposes of the Companies Acts or other applicable Law which obtains the Tax Benefit as to the fact that a Tax Benefit has or has not been obtained and the amount of the Tax Benefit shall be final and binding on the Seller and the Purchaser. For purposes of this Section 6.06, "Tax Benefit" means the amount of a reduction in the tax liability of the Purchaser and/or the Pershing Companies or a repayment of any tax to the Purchaser and/or the Pershing Companies which is exclusively attributable to the contribution of any amount which is received from the Seller under this Section 6.06 to the Scheme.
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