"COBRA
ESCROW AMOUNT"), WHICH AMOUNT SHALL CONTINUE TO BE HELD BY THE ESCROW AGENT IN
ACCORDANCE WITH THE COBRA ESCROW AGREEMENT AND BE USED TO FULFILL THE
OBLIGATIONS SET FORTH IN SECTION 6(O).
FOR THE AVOIDANCE OF DOUBT, IF THE
CLOSING DATE IS ON OR AFTER JANUARY 13, 2010, THEN THE RETIREE COBRA AMOUNT
SHALL BE ZERO.
AS SOON AS ADMINISTRATIVELY PRACTICABLE AFTER JANUARY 13, 2010,
THE RETIREE COBRA AMOUNT, TOGETHER WITH ALL ACCRUED INVESTMENT INCOME OR
INTEREST THEREON, SHALL BE DELIVERED TO SELLERS UPON SATISFACTION OF THE
OBLIGATIONS OF SELLERS SET FORTH IN SECTION 6(O)(I).
IF SELLERS FAIL TO SATISFY
THEIR OBLIGATIONS PURSUANT TO SECTION 6(O)(II), THEN THE NON-RETIREE AMOUNT,
TOGETHER WITH ALL ACCRUED INVESTMENT INCOME OR INTEREST THEREON, SHALL BE PAID
TO U.S. BUYER, AS SOON AS ADMINISTRATIVELY PRACTICABLE, AS BUYERS' SOLE REMEDY
AND LIQUIDATED DAMAGES.
IF SELLERS FULFILL THEIR OBLIGATIONS UNDER
SECTION 6(O)(II), THEN, AS SOON AS ADMINISTRATIVELY PRACTICABLE AFTER THE
EARLIER OF (1) THE DATE THAT ALL APPLICABLE COBRA OBLIGATIONS ARE SATISFIED, OR
(2) THE DATE
32
U.S. SELLERS, AND ANY MEMBER OF THE CONTROLLED GROUP OF CORPORATIONS OR THE
GROUP OF TRADES AND BUSINESSES UNDER COMMON CONTROL THAT INCLUDES U.S. SELLERS,
CEASE TO SPONSOR OR MAINTAIN ANY GROUP HEALTH PLAN, THE NON-RETIREE AMOUNT,
TOGETHER WITH ALL ACCRUED INVESTMENT INCOME OR INTEREST THEREON AND LESS ANY
AMOUNTS PAID OR ELIGIBLE FOR PAYMENT OUT OF THE NON-RETIREE AMOUNT PURSUANT TO
THE COBRA ESCROW AGREEMENT, SHALL BE PAID TO U.S. BUYER; PROVIDED THAT THE
AMOUNT THAT SHALL BE PAID TO U.S. BUYER SHALL BE LIMITED TO AN AMOUNT EQUAL TO
U.S. BUYER'S GOOD FAITH ESTIMATE OF THE AMOUNT NECESSARY TO SATISFY ANY
REMAINING COBRA OBLIGATIONS WITH RESPECT TO INDIVIDUALS INTENDED TO BE COVERED
BY THE NON-RETIREE AMOUNT, AND THE BALANCE OF THE NON-RETIREE AMOUNT REMAINING
AFTER SUCH PAYMENT TO U.S. BUYER, IF ANY, SHALL BE DELIVERED TO U.S. SELLERS AS
SOON AS ADMINISTRATIVELY PRACTICABLE THEREAFTER.
(f)
Closing.
The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Kirkland & Ellis LLP, located at 601 Lexington Avenue, New York, New York
10022 (or such other location as shall be mutually agreed upon by Sellers and
Buyers) commencing at 11:00 a.m. local time on the date that is the third
Business Day after the date on which all conditions to the obligations of
Sellers and Buyers to consummate the transactions contemplated hereby set forth
in Section 7 (other than conditions with respect to actions Sellers and/or
Buyers will take at the Closing itself, but subject to the satisfaction or
waiver of those conditions) have been satisfied or waived, or at such other time
or on such other date as shall be mutually agreed upon by Sellers and Buyers
prior thereto (such date, the "Closing Date").
The Closing shall be deemed to
have occurred at 11:59 p.m. (Eastern Time) on the Business Day prior to the
Closing Date.
(g)
Deliveries at Closing.
(I)
AT THE CLOSING, SELLERS WILL DELIVER TO
U.S. BUYER