Common use of Company Notes Clause in Contracts

Company Notes. At the Effective Time, subject to the consummation of the Merger and without any action on the part of Acquiror, Merger Sub, the Company or the Company Holders, each Company Note, upon the terms and subject to the conditions set forth in this Section 1.9(a)(iii) and throughout this Agreement, including the holdback provisions set forth herein, shall be cancelled and extinguished and converted into the right to receive, upon execution and delivery by the applicable Company Noteholder of a Note Cancellation Agreement with respect to such Company Note, in substantially the form attached hereto as Exhibit I (a “Note Cancellation Agreement”), an amount in cash equal to the aggregate amount payable with respect to such Company Note in accordance with the terms of such Company Note. For purposes of calculating the amount to be paid to each Company Noteholder at the Effective Time, the amounts described in this Section 1.9(a)(iii) shall be calculated assuming that the Total Merger Consideration is equal to the Initial Merger Consideration, and shall be adjusted following the Closing as set forth herein. The aggregate amount to be paid to any Company Noteholder with respect to any outstanding Company Note held immediately prior to the Effective Time shall be rounded down to the nearest whole cent. At the Effective Time, all Company Notes shall be cancelled or terminated, and no Company Noteholder shall have the right to receive any security or other consideration from the Company, Acquiror or the Surviving Corporation with respect thereto. Acquiror shall not assume or convert any Company Notes and no Company Note shall be deemed to be outstanding or to have any rights other than those set forth in this Section 1.9(a)(iii) after the Effective Time. Prior to the Effective Time, the Company shall have taken all actions necessary to effectuate the treatment of Company Notes pursuant to the terms of this Section 1.9(a)(iii), including to ensure that from and after the Effective Time neither Acquiror nor the Surviving Corporation shall be required to deliver any Company Capital Stock or any consideration other than the Total Merger Consideration applicable to such Company Note set forth on the Consideration Spreadsheet to any Person pursuant to or in settlement of any Company Note. The aggregate amount of cash payable with respect to all such Company Notes under this Section 1.9(a)(iii) is referred to as the “Note Consideration”.

Company Notes. At (a) Unless the Effective TimeCompany makes an ESG Sale Election in accordance with Section 2.06, subject the Company shall use its reasonable best efforts to, as promptly as reasonably practicable, effect a consent solicitation seeking the consent of the holders of the Company Notes to amendments or waivers to the Indenture governing the Company Notes, which would permit the consummation of the Merger Spin-Off prior to the Closing (the Consent); provided that the Company shall not agree to a consent fee in connection with the Consent without the prior written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed. The Company shall, and without any action shall cause its Representatives to, (A) keep Parent informed on a reasonably prompt basis and in reasonable detail of material developments in connection with the Consent, (B) allow Parent and its Representatives to review and comment on the part terms and conditions and form of Acquirorthe Consent, Merger Sub(C) give Parent prompt notice of any material and substantive communications to or from the holders of the Company Notes, and (D) promptly respond to Parent’s requests for updates on the status of the Consent. With respect to any actions taken with respect to the Spin-Off, the Company shall comply with and shall not breach or otherwise violate any of its covenants or obligations pursuant to the Indenture or the Company Holders, each Company Note, upon the terms and subject Notes. Notwithstanding anything to the conditions contrary in this Agreement, the Company shall not consummate the Spin-Off prior to obtaining the Consent and the Bank Consent if the Spin-Off occurs other than substantially concurrently with the Closing, and the Company shall not be obligated to consummate the Spin-Off prior to obtaining the Consent and the Bank Consent unless the Spin-Off occurs substantially concurrently with the Closing and Parent provides a sufficient amount of cash on the Closing Date in order to enable the Company to satisfy and discharge the Company Notes and to pay the Payoff Amount with respect to the Existing Credit Agreement. Parent’s right to terminate this Agreement pursuant to Section 8.01(d)(iv) shall not be available from the ESG Termination Date to the Termination Date (on which date such right to terminate shall once again be available) if either the Consent or Bank Consent have not been obtained by the ESG Termination Date due only to Parent’s failure to provide its consent to the consent fee referenced in the proviso to the first sentence of this Section 6.14(a). Except as set forth in this Section 1.9(a)(iii) and throughout this Agreement, including the holdback provisions set forth herein, shall be cancelled and extinguished and converted into the right to receive, upon execution and delivery by the applicable Company Noteholder of a Note Cancellation Agreement with respect to such Company Note, in substantially the form attached hereto as Exhibit I (a “Note Cancellation Agreement”), an amount in cash equal to the aggregate amount payable with respect to such Company Note in accordance with the terms of such Company Note. For purposes of calculating the amount to be paid to each Company Noteholder at the Effective Time, the amounts described in this Section 1.9(a)(iii) shall be calculated assuming that the Total Merger Consideration is equal to the Initial Merger Consideration, and shall be adjusted following the Closing as set forth herein. The aggregate amount to be paid to any Company Noteholder with respect to any outstanding Company Note held immediately prior to the Effective Time shall be rounded down to the nearest whole cent. At the Effective Time, all Company Notes shall be cancelled or terminated, and no Company Noteholder shall have the right to receive any security or other consideration from the Company, Acquiror or the Surviving Corporation with respect thereto. Acquiror shall not assume or convert any Company Notes and no Company Note shall be deemed to be outstanding or to have any rights other than those set forth in this Section 1.9(a)(iii) after the Effective Time. Prior to the Effective Time6.14, the Company shall have taken all actions necessary to effectuate may not otherwise amend, modify or waive any provisions of the treatment of Indenture or the Company Notes pursuant in a manner adverse to the terms of this Section 1.9(a)(iii), including to ensure that from and after the Effective Time neither Acquiror nor the Surviving Corporation shall be required to deliver any Company Capital Stock or any consideration other than the Total Merger Consideration applicable to such Company Note set forth on the Consideration Spreadsheet to any Person pursuant to or in settlement of any Company Note. The aggregate amount of cash payable with respect to all such Company Notes under this Section 1.9(a)(iii) is referred to as the “Note Consideration”its Subsidiaries.

Company Notes. At As of immediately prior to the Effective Time, subject to the consummation of the Merger and without any action on the part of Acquiror, Merger Sub, the Company or the Company Holders, each Company Note, upon the terms and subject to the conditions set forth in this Section 1.9(a)(iii) and throughout this Agreement, including the holdback provisions set forth herein, shall be cancelled and extinguished and converted into the right to receive, upon execution and delivery by the applicable holder of such Company Noteholder Note of a Note Cancellation Agreement with respect to such Company Note, in substantially the form attached hereto as Exhibit I (a “Note Cancellation Agreement”), an amount in cash equal to the aggregate amount payable with respect to such Company Note in accordance with the terms of such Company Note. For purposes of calculating the amount to be paid to each Company Noteholder at the Effective Time, the amounts described in this Section 1.9(a)(iii) shall be calculated assuming that the Total Merger Consideration is equal to the Initial Merger Consideration, and shall be adjusted following the Closing as set forth herein. The aggregate amount to be paid to any Company Noteholder with respect to any outstanding Company Note held immediately prior to the Effective Time shall be rounded down to the nearest whole cent. At the Effective Time, all Company Notes shall be cancelled or terminated, and no Company Noteholder shall have the right to receive any security or other consideration from the Company, Acquiror or the Surviving Corporation with respect thereto. Acquiror shall not assume or convert any Company Notes and no Company Note shall be deemed to be outstanding or to have any rights other than those set forth in this Section 1.9(a)(iii) after the Effective Time. Prior to the Effective Time, the Company shall have taken all actions necessary to effectuate the treatment of Company Notes pursuant to the terms of this Section 1.9(a)(iii), including to ensure that from and after the Effective Time neither Acquiror nor the Surviving Corporation shall be required to deliver any Company Capital Stock or any consideration other than the Total Merger Consideration applicable to such Company Note set forth on the Consideration Spreadsheet to any Person pursuant to or in settlement of any Company Note. The aggregate amount of cash payable with respect to all such Company Notes under this Section 1.9(a)(iii) is referred to as the “Note Consideration.”.

Company Notes. At As of immediately prior to the Effective Time, subject to the consummation of the Merger and without any action on the part of Acquiror, Merger Sub, the Company or the Company Holders, each Company NoteNote (unless otherwise converted), upon the terms and subject to the conditions set forth in this Section 1.9(a)(iii1.9(a)(iv) and throughout this Agreement, including the holdback provisions set forth herein, shall be cancelled and extinguished extinguished, and converted into the right each holder thereof shall be entitled to receive, as payment in full satisfaction of the Company’s obligations thereunder, upon execution and delivery by the applicable Company Noteholder of a Note Cancellation Agreement with respect to such Company Note, in substantially the form attached hereto as Exhibit I K (a “Note Cancellation Agreement”), an amount in cash equal to the aggregate amount payable with respect to such Company Note in accordance with the terms of such Company NoteNote upon a Change of Control ( as defined in the Company Notes) on the Closing Date, including the prepayment premium described in paragraph 1(c)(ii) of the Company Notes. For purposes of calculating the amount to be paid to each Company Noteholder at the Effective Time, the amounts described in this Section 1.9(a)(iii1.9(a)(iv) shall be calculated assuming that the Total Merger Consideration is equal to the Initial Merger Consideration, and shall be adjusted following the Closing as set forth herein. The aggregate amount to be paid to any Company Noteholder with respect to any outstanding Company Note held immediately prior to the Effective Time shall be rounded down to the nearest whole cent. At the Effective Time, all Company Notes shall be cancelled or terminated, and no Company Noteholder shall have the right to receive any security or other consideration from the Company, Acquiror or the Surviving Corporation with respect thereto. Acquiror shall not assume or convert any Company Notes Notes, and no Company Note shall be deemed to be outstanding or to have any rights other than those set forth in this Section 1.9(a)(iii1.9(a) after the Effective Time. Prior to the Effective Time, the Company shall have taken all actions necessary to effectuate the treatment of Company Notes pursuant to the terms of this Section 1.9(a)(iii), including to ensure that from and after the Effective Time neither Acquiror nor the Surviving Corporation shall be required to deliver any Company Capital Stock or any consideration other than the Total Merger Consideration applicable to such Company Note set forth on the Consideration Spreadsheet to any Person pursuant to or in settlement of any Company Note. The aggregate amount of cash payable with respect to all such Company Notes under this Section 1.9(a)(iii1.9(a)(iv) is referred to as the “Note Consideration”.