Common use of Issuing Entity Clause in Contracts

Issuing Entity. At the joint election of Topco and Investor, the Preferred Exchange may be structured as a direct contribution of Company Preferred Rollover Shares to a Subsidiary of Topco (including a Subsidiary that is treated as a corporation for U.S. federal income tax purposes) (any such subsidiary, “Issuing Entity”) in exchange for equity interests in such Subsidiary and Topco may assign its obligation to issue the Subscribed Topco Preferred Units to such Issuing Entity. In such case, for purposes of Section 18 hereof, the terms “Preferred Exchange” shall refer to such exchange with an Issuing Entity. In the event that an Issuing Entity is used pursuant to the preceding sentences of this Agreement as a result of the joint election by Xxxxx and the Investor and such assignment is made, (i) if the Issuing Entity is (or will elect to be) classified as a corporation for U.S. federal income tax purposes and the Company Preferred Rollover Shares are exchanged for stock of such Issuing Entity, (A) provisions contained in the Preferred Equity Term Sheet under the caption “Tax Matters” shall not be applicable and the parties shall negotiate in good faith to include tax covenants applicable to an investment in preferred stock in a corporation for U.S. federal income tax purposes and the parties shall cooperate in good faith to determine the tax treatment of the Preferred Units (including treatment under sections 305 and 351(g) of the Code), and (B) the Preferred Exchange shall be structured as a transaction intended to qualify as an exchange described in Section 351 of the Code and (ii) Topco and Investor shall promptly amend and restate this Agreement (including the Schedules and Preferred Equity Term Sheet, if applicable) to reflect such assignment, including if applicable, (A) the changes to the Preferred Equity Term Sheet described in clause (i) above, (B) the designation of the assignee as the Issuing Entity, and (C) any other changes, including changes in the type of security to be issued (including any applicable terms) and document governing such security as may be appropriate or necessary based on the type of entity that the assignee is; provided, that in the case of this clause (C) (but subject to clause (A)), for the avoidance of doubt, other than to reflect the change in issuer type or as a result of such change (including as a result of the issuer being classified as a corporation for U.S. federal income tax purposes), the economics, rights and obligations set forth in the Preferred Equity Term Sheet shall not be changed without the prior written approval of Investor (not to be unreasonably withheld, conditioned, or delayed). Investor and Xxxxx agree to cooperate to effect any amendment and restatement of this Agreement (and the Schedules and Preferred Equity Term Sheet, as applicable) to give effect to any assignment effected by Topco pursuant to this Section 17, if the joint election is made. If, at the sole election of Issuer, a new entity treated as a corporation (“New Corp”) for U.S. federal income taxes is interposed between Topco, on the one hand, and Olympus Water Holdings IV, L.P., on the other hand, then the contribution of any direct or indirect subsidiaries of Topco (including Olympus Water UK Holding Ltd. and Olympus Water US Holding Corp.) to New Corp shall be structured to be treated as an exchange that is intended to be governed by Section 351(a) of the Code. For the avoidance of doubt and notwithstanding anything to the contrary herein, the determination as to whether to interpose such New Corp shall be made by Xxxxx in its sole and absolute discretion.