Restructuring Transactions. (a) As promptly as reasonably practicable after the date hereof but in any event no later than 30 days after the date hereof, Parent shall designate one of Appendix II-A and Appendix II-B to be the Restructuring Plan by delivering written notice of such designation to Buyer. From and after the delivery of the notice described in the preceding sentence, Parent shall use reasonable best efforts to take, and shall cause its Affiliates to use reasonable best efforts to take, any and all actions necessary to effect the transactions contemplated by Section 2.02 through Section 2.06 and the other transactions detailed on the Restructuring Plan, including conveying, transferring, assigning and delivering any Transferred Asset or Assumed Liability from Parent or any of its Subsidiaries to any Acquired Company, conveying, transferring, assigning and delivering any Excluded Asset or Excluded Liability from any Acquired Company to Parent or any of its Subsidiaries (other than an Acquired Company), creating new Persons that will be Acquired Companies or changing the form of any Acquired Company, in each case, in a manner consistent with the Restructuring Plan (to the extent set forth in the Restructuring Plan) (the Restructuring Plan and the foregoing transactions collectively, together with the actions set forth in Article 7 to be taken by Parent or any of its Subsidiaries as of or prior to the Closing, and after taking into account any amendments, modifications or deviations described in the next sentence, the “Restructuring Transactions”) as promptly as reasonably practicable; provided that Parent and its Affiliates shall not be required to effect any transaction detailed on the Restructuring Plan that would result in a violation of any Applicable Law. Further, Parent and its Affiliates may amend, modify and deviate from any of the Restructuring Transactions detailed in the Restructuring Plan so long as Parent and/or its Affiliates obtain Buyer’s prior written consent (email being sufficient) with respect to any such amendment, modification or deviation (such consent not to be unreasonably withheld, conditioned or delayed) and which consent shall be required for any such amendment, modification or deviation notwithstanding anything to the contrary contained in this Agreement. For clarity, it is understood and agreed (by way of example and not limitation) that it shall be reasonable for Buyer to withhold, condition or delay its consent with respect to any amendment, modification or deviation to or from the Restructuring Plan described on Section 2.07 of the Parent Disclosure Schedule. For the avoidance of doubt, any amendment, modification or deviation from the Restructuring Transactions detailed in the Restructuring Plan for which Buyer provides prior written consent shall not be considered a breach of this Section 2.07. (b) Notwithstanding anything herein to the contrary, in no event shall any Person be required to take, effect or complete any action or transaction contemplated by the Restructuring Transactions (i) that requires the consent or approval of any other Person until such consent or approval has been received, or (ii) in a chronological order that differs from that set forth in the Restructuring Plan.
Appears in 2 contracts
Sources: Transaction Agreement, Transaction Agreement (L Brands, Inc.)
Restructuring Transactions. (a) As promptly as reasonably practicable after the date hereof but in any event no later than 30 days after the date hereof, Parent shall designate one of Appendix II-A and Appendix II-B to be the Restructuring Plan by delivering written notice of such designation to Buyer. From and after the delivery of the notice described in the preceding sentence, Parent Holdings shall use its reasonable best efforts to take, or cause to be taken, such actions as are necessary so that at the Effective Time: (i) the Group Partnerships shall own, directly or indirectly, all of the Contributed Interests, (ii) upon the completion of the Purchase and Sale, the Purchaser shall cause its Affiliates contribute all of the Limited Partnership Interests and any assets of the Acquired Partnership distributed to use reasonable best efforts the Purchaser in respect of such Limited Partnership Interests, directly or indirectly, to takethe Group Partnerships in exchange for a direct or indirect controlling interest and 30% of the outstanding Class A units representing limited partner interests in each of the Group Partnerships (it being understood that no Class A units that are permitted to be issued pursuant to Section 5.9(a)(iv)(C) shall be deemed outstanding for purposes of the foregoing), any and all actions necessary to effect (iii) upon the completion of the Purchase and Sale, the structure of the KKR Group shall be consistent with the structure set forth in Exhibit B hereto. The transactions contemplated by this Section 2.02 through Section 2.06 and the other transactions detailed on the Restructuring Plan, including conveying, transferring, assigning and delivering any Transferred Asset or Assumed Liability from Parent or any of its Subsidiaries 5.4 are sometimes referred to any Acquired Company, conveying, transferring, assigning and delivering any Excluded Asset or Excluded Liability from any Acquired Company to Parent or any of its Subsidiaries (other than an Acquired Company), creating new Persons that will be Acquired Companies or changing the form of any Acquired Company, in each case, in a manner consistent with the Restructuring Plan (to the extent set forth in the Restructuring Plan) (the Restructuring Plan and the foregoing transactions collectively, together with the actions set forth in Article 7 to be taken by Parent or any of its Subsidiaries herein as of or prior to the Closing, and after taking into account any amendments, modifications or deviations described in the next sentence, the “Restructuring Transactions”) as promptly as reasonably practicable; provided that Parent and its Affiliates shall not be required to effect any transaction detailed on the Restructuring Plan that would result in a violation of any Applicable Law. Further, Parent and its Affiliates may amend, modify and deviate from any of the Restructuring Transactions detailed in the Restructuring Plan so long as Parent and/or its Affiliates obtain Buyer’s prior written consent (email being sufficient) with respect to any such amendment, modification or deviation (such consent not to be unreasonably withheld, conditioned or delayed) and which consent shall be required for any such amendment, modification or deviation notwithstanding anything to the contrary contained in this Agreement. For clarity, it is understood and agreed (by way of example and not limitation) that it shall be reasonable for Buyer to withhold, condition or delay its consent with respect to any amendment, modification or deviation to or from the Restructuring Plan described on Section 2.07 of the Parent Disclosure Schedule. For the avoidance of doubt, any amendment, modification or deviation from the Restructuring Transactions detailed in the Restructuring Plan for which Buyer provides prior written consent shall not be considered a breach of this Section 2.07.
(b) Notwithstanding anything herein to the contrary, in no event shall any Person be required to take, effect or complete any action or transaction contemplated by the The Restructuring Transactions (i) that requires the consent or approval of any other Person until such consent or approval has been received, or (ii) shall be implemented in a chronological order manner that differs from that is consistent with the steps set forth in the structure memorandum attached as Exhibit C hereto, except for deviations thereto (including to address a change in law) which would not reasonably be expected to have an adverse impact in more than an insignificant respect on the Seller, the Controlling Partnership or the holders of the Seller Common Units or deviations consented to by the Seller, which consent shall not be unreasonably withheld or delayed. The Controlling Partnership shall consider in good faith any deviations to the steps (or methods of implementing the steps) set forth in Exhibit C requested by the Seller or its representatives, it being understood that the decision of whether or not to implement any such requested deviations or methods shall be in the sole determination of the Controlling Partnership acting in good faith.
(c) In connection with the Restructuring PlanTransactions, the Seller and KKR Management Holdings Corp. shall not make an election under Section 362(e)(2)(C) of the Code to reduce the tax basis in the Seller Common Units held by holders of Seller Common Units immediately before the Restructuring Transactions unless a majority of the Independent Directors, prior to the US Listing (as defined in the Investment Agreement) consent to such election in their sole discretion. Notwithstanding the foregoing, the Independent Directors shall consult in good faith with the Controlling Partnership about whether to make such an election.
(d) At or prior to the Effective Time, the Controlling Partnership shall deliver to the Seller a certificate signed by a senior officer on behalf of each of the Controlling Partnership GP and the general partner of Holdings in form and substance reasonably satisfactory to the Seller certifying that each has performed in all material respects all obligations required to be performed by it under Section 5.4, Section 5.5, Section 5.6, Section 5.7 and Section 5.9 during the period from the Satisfaction Date to the Effective Time. The certificate shall be delivered at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ or such other place as the parties may mutually agree.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (KKR & Co. L.P.), Purchase and Sale Agreement (KKR & Co. L.P.)
Restructuring Transactions. (a) As promptly as reasonably practicable after Prior to the date hereof but in any event no later than 30 days after the date hereofClosing, Parent Seller and its applicable Affiliates, at Seller’s sole cost and expense, shall designate one of Appendix II-A and Appendix II-B to be the Restructuring Plan by delivering written notice of such designation to Buyer. From and after the delivery of the notice described in the preceding sentence, Parent shall use reasonable best efforts to take, and shall cause its Affiliates to use reasonable best efforts to take, take any and all actions necessary to effect the transactions contemplated by Section 2.02 through Section 2.06 and the other transactions detailed on the Restructuring Planthis Agreement, including conveying, transferring, assigning and delivering any Transferred Asset or Assumed Liability from Parent or any of its Subsidiaries to any Acquired Company, (a) conveying, transferring, assigning and delivering any Excluded Asset or Excluded Liability set forth on Section 5.19(a) of the Seller Disclosure Schedule from any Acquired Company Transferred Entity, on the one hand, to Parent or any member of its Subsidiaries the Seller Group (other than an Acquired Companythe Transferred Entities), creating new Persons that will be Acquired Companies on the other hand, and (b) conveying, transferring, assigning and delivering any asset or changing liability set forth on Section 5.19(b) of the form Seller Disclosure Schedule from any member of the Seller Group (other than the Transferred Entities), on the one hand, to any Acquired CompanyTransferred Entity, on the other hand (the foregoing clauses (a) and (b) collectively, Closing, the “Seller Restructuring Transactions”), in each case, case pursuant to instruments of transfer in a manner consistent with the Restructuring Plan (form and substance reasonably satisfactory to the extent set forth in the Restructuring Plan) (the Restructuring Plan Purchaser and the foregoing transactions collectively, together with the actions set forth in Article 7 to be taken by Parent or any of its Subsidiaries as of or prior to the Closing, and after taking into account any amendments, modifications or deviations described in the next sentence, the “Restructuring Transactions”) as promptly as reasonably practicable; provided that Parent and its Affiliates shall not be required to effect any transaction detailed on the Restructuring Plan that would result in a violation of any Applicable Law. Further, Parent and its Affiliates may amend, modify and deviate from any of the Restructuring Transactions detailed in the Restructuring Plan so long as Parent and/or its Affiliates obtain BuyerPurchaser’s prior written consent (email being sufficient) with respect to any such amendment, modification or deviation (such consent not to be unreasonably withheld, conditioned or delayed) and which consent shall be required for any such amendment, modification or deviation notwithstanding anything to the contrary contained in this Agreement. For clarity, it is understood and agreed (by way of example and action not limitation) that it shall be reasonable for Buyer to withhold, condition or delay its consent with respect to any amendment, modification or deviation to or from the Restructuring Plan described set forth on Section 2.07 5.19 of the Parent Seller Disclosure Schedule. For ; provided, further, that Purchaser may not require Parent to change the avoidance of doubt, any amendment, modification or deviation from steps contemplated by the Seller Restructuring Transactions detailed in the Restructuring Plan for which Buyer provides prior written consent shall not be considered a breach of this Section 2.07Transaction.
(b) Notwithstanding anything herein At the request of Purchaser and at Purchaser’s cost and expense, Seller and its applicable Affiliates shall use commercially reasonable efforts to take such actions as requested by Purchaser to allow the contraryEssex Generating Station to be transferred to a subsidiary of Purchaser that will own only the Essex Generating Station and not any of the other Facilities, including obtaining any required standalone permits and contracts. The Parties agree to, and to cause their respective Affiliates to, cooperate in no event shall good faith and use their commercially reasonable efforts to take such actions as may be reasonably necessary to mitigate, reduce or eliminate any Person Tax that could be required to take, effect or complete any action or transaction contemplated by imposed in connection with the Restructuring Transactions (i) that requires the consent or approval of any other Person until such consent or approval has been received, or (ii) in a chronological order that differs from that set forth in the Restructuring Planforegoing.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Pseg Power LLC), Equity Purchase Agreement (Pseg Power LLC)
Restructuring Transactions. (a) As promptly as reasonably practicable after Section 5.05 is hereby amended and supplemented by adding the date hereof but following at the end of Section 5.05: “After the Closing Date, the following terms and conditions shall apply to the procedures set forth in any event no later than 30 days after the date hereof, Parent shall designate one Section 4.3 of Appendix II-A and Appendix II-B to be the Restructuring Plan by delivering written notice of such designation to Buyer. From and after the delivery of the notice described in the preceding sentence, Parent shall use reasonable best efforts to take, and shall cause its Affiliates to use reasonable best efforts to take, any and all actions necessary to effect the transactions contemplated by Section 2.02 through Section 2.06 and the other transactions detailed on the Restructuring Plan, including conveying, transferring, assigning and delivering Schedule 5.05 for any Transferred Asset or Assumed Liability from Parent or any of its Subsidiaries to any Acquired Company, conveying, transferring, assigning and delivering any Excluded Asset or Excluded Liability from any Acquired Company to Parent or any of its Subsidiaries Contracts (other than an Acquired Company), creating new Persons a Rail Car Lease Agreement) or Partially Transferred Contract that will be Acquired Companies or changing the form of any Acquired Company, in each case, in a manner consistent with the Restructuring Plan (to the extent set forth in the Restructuring Plan) (the Restructuring Plan and the foregoing transactions collectively, together with the actions set forth in Article 7 to be taken by Parent or any of its Subsidiaries as of or prior to the Closing, and after taking into account any amendments, modifications or deviations described in the next sentence, the “Restructuring Transactions”) as promptly as reasonably practicable; provided that Parent and its Affiliates shall cannot be required transferred to effect any transaction detailed on the Restructuring Plan that would result in a violation of any Applicable Law. Further, Parent and its Affiliates may amend, modify and deviate from any member of the Restructuring Transactions detailed in ▇▇▇▇▇▇ Group: (i) until the Restructuring Plan so long as Parent and/or its Affiliates requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred Contract, any material amendment of, or material modification to, such Transferred Contract or Partially Transferred Contract (including any material amendment or material modification required or necessary to obtain Buyer’s the consent of the counterparty to such Transferred Contract or Partially Transferred Contract) shall require the prior written consent (email being sufficient) with respect to any such amendment, modification or deviation approval of the Purchaser (such consent approval not to be unreasonably withheld, conditioned delayed or delayedconditioned); (ii) and which until the requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred Contract, the Seller will keep the Purchaser reasonably informed of any requests made by the counterparty to such Transferred Contract or Partially Transferred Contract to amend or modify the terms of such Transferred Contract or Partially Transferred Contract; (iii) until the requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred Contract in accordance with terms hereof, the Seller shall be required for any perform its, or cause its Affiliates to perform their, obligations under such amendmentTransferred Contract or Partially Transferred Contract in accordance with the terms thereof and, modification or deviation notwithstanding anything in connection therewith, the Seller shall use commercially reasonable efforts to follow reasonable directions provided by the contrary contained in this Agreement. For clarity, it is understood and agreed (by way of example and not limitation) that it shall be reasonable for Buyer to withhold, condition or delay its consent with respect to any amendment, modification or deviation to or from the Restructuring Plan described on Section 2.07 applicable member of the Parent Disclosure Schedule. For the avoidance of doubt, any amendment, modification or deviation from the Restructuring Transactions detailed in the Restructuring Plan for which Buyer provides prior written consent shall ▇▇▇▇▇▇ Group so long as such directions do not be considered cause a breach of this Section 2.07.
such contract (b) Notwithstanding anything herein provided, that the Purchaser and the ▇▇▇▇▇▇ Holdcos shall, and shall cause the ▇▇▇▇▇▇ Subsidiaries to, be responsible for and indemnify the Seller and its Affiliates against all Losses arising from or relating to the contrarySeller’s or its Affiliates’ compliance with this subsection (iii); and (iv) the Seller, in no event the ▇▇▇▇▇▇ Holdcos and the Purchaser shall any Person be required use commercially reasonable efforts to take, effect agree to commercially reasonable terms for purposes of effectuating the benefits and burdens of such Transferred Contract or complete any action or transaction contemplated by the Restructuring Transactions (i) that requires the consent or approval of any other Person until such consent or approval has been received, or (ii) in a chronological order that differs from that set forth in the Restructuring PlanPartially Transferred Contract.”
Appears in 2 contracts
Sources: Sale and Purchase Agreement, Sale and Purchase Agreement (Trinseo S.A.)
Restructuring Transactions. (a) As promptly Notwithstanding anything to the contrary set forth herein, as reasonably practicable after the date hereof soon as practicable, but in any no event no later more than 30 twenty (20) days after the date hereof, Parent the Company and the Shareholders shall designate one of Appendix II-A and Appendix II-B take or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate the Restructuring Plan by delivering written notice of such designation Transactions as set forth in Annex I attached hereto. The Restructuring Transactions shall be completed on terms and conditions acceptable to Buyer. From the Purchaser in all respects, and after all documents, agreements, or instruments shall be subject to the delivery prior approval of the notice described in the preceding sentence, Parent shall use reasonable best efforts to takePurchaser. The Company shall, and each of the Shareholders shall cause the Company and Nagoya to, provide the Purchaser and its Affiliates representatives with a reasonable opportunity to use reasonable best efforts review and comment on any documents, agreements or instruments prior to takesuch documents, any agreements and all actions necessary to effect the transactions contemplated by Section 2.02 through Section 2.06 and the other transactions detailed on the Restructuring Plan, including conveying, transferring, assigning and delivering any Transferred Asset or Assumed Liability from Parent or any of its Subsidiaries to any Acquired Company, conveying, transferring, assigning and delivering any Excluded Asset or Excluded Liability from any Acquired Company to Parent or any of its Subsidiaries (other than an Acquired Company), creating new Persons that will be Acquired Companies or changing the form of any Acquired Company, instruments being executed and/or delivered in each case, in a manner consistent connection with the Restructuring Plan Transactions.
(to b) Each of the extent set forth Shareholders hereby acknowledges and agrees that (i) any corporate actions, transfers or other actions taken in the Restructuring Plan) (the Restructuring Plan and the foregoing transactions collectively, together connection with the actions set forth in Article 7 to be taken by Parent or any of its Subsidiaries as of or prior to the Closing, and after taking into account any amendments, modifications or deviations described in the next sentence, the “Restructuring Transactions”) as promptly as reasonably practicable; provided that Parent and its Affiliates shall not be required to effect any transaction detailed on the Restructuring Plan that would result in a violation of any Applicable Law. Further, Parent and its Affiliates may amend, modify and deviate from any of the Restructuring Transactions detailed in shall be made on an “AS-IS”, “WHERE-IS” basis, without representation or warranty of any kind, and without recourse to the Restructuring Plan so long as Parent and/or its Affiliates obtain Buyer’s prior written consent (email being sufficient) Company or Nagoya with respect to any such amendmentcorporate actions, modification transfers or deviation other actions, and without recourse to the recipient thereof; (such consent not to be unreasonably withheldii) the Shareholders shall, conditioned or delayed) jointly and which consent shall be required severally, assume, satisfy, discharge, perform, pay and remain responsible for any such amendmentand all Liabilities or Losses based upon, modification related or deviation notwithstanding anything to the contrary contained in this Agreement. For claritypertaining to, it is understood and agreed (by way of example and not limitation) that it shall be reasonable for Buyer to withhold, condition arising from or delay its consent with respect to any amendmentof the Restructuring Transactions, modification including any Taxes associated with or deviation to or arising from the Restructuring Plan described on Section 2.07 Transactions, in each case irrespective of whether they exist or arise prior to or after the Parent Disclosure Schedule. For Closing; and (iii) the avoidance of doubtShareholders shall, jointly and severally, indemnify, defend and hold harmless each Purchaser Indemnified Person for any amendment, modification and all Liabilities or deviation from Losses related to the Restructuring Transactions detailed in Transactions, regardless of whether arising prior to or after the Restructuring Plan for which Buyer provides prior written consent shall not be considered a breach of this Section 2.07Closing Date.
(bc) Notwithstanding anything herein to the contraryforegoing, in no event shall this Section 6.18 limit or otherwise restrict the representations and warranties of the Shareholders, including any Person be required representations and warranties as to takethe Company or its Subsidiaries, effect or complete any action or transaction contemplated by the Restructuring Transactions (i) that requires the consent or approval of any other Person until such consent or approval has been received, or (ii) in a chronological order that differs from that set forth in herein and the Restructuring Planindemnification obligations of the Shareholders hereunder.
Appears in 1 contract
Restructuring Transactions. (a) As promptly as The DC Contributors shall, and shall cause the Company and the respective Company Subsidiaries to, take the actions described in Schedule 5.05(a) (the “Pre-Closing Restructuring Transactions”) prior to the Closing. The Pre-Closing Restructuring Transactions shall be implemented substantially in the manner specified on such Schedule or otherwise in a manner reasonably practicable satisfactory to the Investor. The DC Contributors shall regularly consult with the Investor regarding the manner and status of the implementation of the Pre-Closing Restructuring Transactions and shall provide the Investor with copies of all material agreements or other documents executed in connection with such transactions.
(b) The DC Contributors and the Investor shall, and shall cause their respective Affiliates to, take the actions described in Schedule 5.05(b) (the “Post-Closing Restructuring Transactions”) after the date hereof but in any event no later than 30 days after Closing. The Investor and the date hereofDC Contributors shall cooperate with each other and shall cause their respective Affiliates and the officers, Parent shall designate one employees, agents, and representatives of Appendix II-A themselves and Appendix II-B their respective Affiliates to be the Restructuring Plan by delivering written notice of such designation to Buyer. From cooperate with each other and after the delivery of the notice described in the preceding sentence, Parent shall use reasonable best efforts to takeensure the timely and orderly completion of the Post-Closing Restructuring Transactions.
(c) (i) Notwithstanding anything that may be contained in the NAFTA Macro Step Plan, and shall cause its Affiliates the Austria Macro Step Plan or the ROW Macro Step Plan (each as included in Schedule 5.05(a)) to use reasonable best efforts the contrary, but subject to takeparagraph (iii) below, any and all actions necessary to effect the transactions contemplated by Section 2.02 through Section 2.06 DC Contributors and the other transactions detailed on Investor agree that the Pre-Closing Restructuring Transactions, taken as a whole, will not involve transfers of cash from the Company and the Company Subsidiaries, taken as a whole, in excess of the amount of cash transferred pursuant to such step plans by DC Holding, DCNAF and the Guarantor or their Affiliates (excluding the Company or any Company Subsidiary) to the Company and the Company Subsidiaries, taken as a whole.
(ii) The parties agree that in Step 3 of Phase II of the ROW Macro Step Plan, including conveyingthe amount to be invested by DCC in Chrysler do Brazil Ltda (indicated as $35 million but potentially less) shall be provided to DCC from funds distributed by Chrysler International Corporation, transferring, assigning and delivering any Transferred Asset or Assumed Liability from Parent or any of its Subsidiaries to any Acquired Company, conveying, transferring, assigning and delivering any Excluded Asset or Excluded Liability from any Acquired Company to Parent or any of its Subsidiaries a Delaware corporation (other than an Acquired Company“CIC”), creating new Persons as described in paragraph (iii) below (or by capital contributions from DCNAF or DC Holding).
(iii) The parties agree that will as a result of the steps in Phase II of the Austria Macro Step Plan (as included in Schedule 5.05(a)), all net cash and cash equivalents not attributable to the Chrysler business (as defined below) may be Acquired Companies paid, distributed or changing the form of any Acquired Companyotherwise transferred from DaimlerChrysler Holding (Austria) GmbH, DaimlerChrysler Vienna GmbH and CIC, to DaimlerChrysler Danubia (or, in each casethe case of the distribution from CIC, in a manner consistent with the Restructuring Plan (to the extent not applied as set forth in paragraph (ii) above, to DC Holding). For purposes of this paragraph (iii), net cash and cash equivalents not attributable to the Restructuring PlanChrysler business shall include all cash and cash equivalents in DaimlerChrysler Holding (Austria) (the Restructuring Plan GmbH and the foregoing transactions collectively, together with the actions set forth in Article 7 to be taken by Parent or any of its Subsidiaries as of or DaimlerChryslerVienna GmbH immediately prior to the Closing, and after taking into account any amendments, modifications or deviations described in the next sentence, the “Restructuring Transactions”) as promptly as reasonably practicable; provided that Parent and its Affiliates shall not be required to effect any transaction detailed on the Restructuring Plan that would result in a violation of any Applicable Law. Further, Parent and its Affiliates may amend, modify and deviate from any Step 6 of the Restructuring Transactions detailed in the Restructuring Plan so long as Parent and/or its Affiliates obtain Buyer’s prior written consent (email being sufficient) with respect Austria Macro Step Plan, which cash and cash equivalents will not exceed Euro 350 million and which cash and cash equivalents has not been generated by or is not attributable to any such amendment, modification Chrysler business operations or deviation (such consent not to be unreasonably withheld, conditioned or delayed) and which consent shall be required for any such amendment, modification or deviation notwithstanding anything to the contrary contained in this Agreementassets. For clarity, it is understood and agreed (by way of example and not limitation) that it shall be reasonable for Buyer to withhold, condition or delay its consent with respect to any amendment, modification or deviation to or from the Restructuring Plan described on Section 2.07 of the Parent Disclosure Schedule. For the avoidance of doubt, neither DaimlerChrysler Danubia nor DC Holding shall be entitled to receive any amendmentcash and cash equivalents contained in Chrysler Austria GmbH, modification DaimlerChrysler Management Austria GmbH or deviation from the Restructuring Transactions detailed in the Restructuring Plan for AC Auto Car, which Buyer provides prior written consent cash and cash equivalents balances shall not be considered a breach of this Section 2.07.
(b) Notwithstanding anything herein deemed attributable to the contrary, in no event shall any Person be required to take, effect or complete any action or transaction contemplated by the Restructuring Transactions (i) that requires the consent or approval of any other Person until such consent or approval has been received, or (ii) in a chronological order that differs from that set forth in the Restructuring PlanChrysler business.
Appears in 1 contract
Sources: Contribution Agreement (Daimler Ag)
Restructuring Transactions. (a) As promptly as reasonably practicable after of the date hereof but in any event no later than 30 days after Closing Date, all aspects of the date hereof, Parent shall designate one equity ownership and corporate and operational governance of Appendix II-A and Appendix II-B to be the Borrower effected by the Restructuring Plan by delivering written notice Transaction Documents (including the composition of such designation the Board of Directors and the management of the Borrower) shall be satisfactory to Buyerthe Agent. From Additionally, all agreements relating to, and the corporate and capital structure of, Borrower, as of the Closing Date and after the delivery of the notice described in the preceding sentence, Parent shall use reasonable best efforts giving effect to take, and shall cause its Affiliates to use reasonable best efforts to take, any and all actions necessary to effect the transactions contemplated by Section 2.02 through Section 2.06 the Loan Documents and the other transactions detailed on the Restructuring PlanTransaction Documents, including conveyingand all organizational documents of Borrower, transferring, assigning and delivering any Transferred Asset or Assumed Liability from Parent or any of its Subsidiaries to any Acquired Company, conveying, transferring, assigning and delivering any Excluded Asset or Excluded Liability from any Acquired Company to Parent or any of its Subsidiaries (other than an Acquired Company), creating new Persons that will be Acquired Companies or changing the form of any Acquired Company, in each case, in a manner consistent with the Restructuring Plan (to the extent not expressly set forth in the Plan of Reorganization, shall be satisfactory to the Agent; and
(b) As of the Closing Date and after giving effect to the Restructuring Transaction Documents, the organizational structure and the capital structure of the Borrower shall be satisfactory to the Agent;
(c) Agent shall have received a copy of the Confirmation Orders, each of which shall (i) be in form and substance satisfactory to Agent, (ii) except as agreed to by Agent, be final orders on the Closing Date, and (iii) be certified by the Clerk of the Bankruptcy Court;
(d) As of the Funding Date, Agent shall have either (X) received a certificate dated the Closing Date from the Clerk of the Bankruptcy Court, if available, certifying that (i) there is no order amending, modifying, staying, vacating, or rescinding the Final Order entered on the docket of the Clerk of the Bankruptcy Court on May 17, 2005 or pending appeal or motion to vacate or rescind the same and (ii) there is no motion or other pleading on file seeking to amend, modify, stay, vacate, or rescind the Plan of Reorganization, or (Y) waived such requirement;
(e) As of the Funding Date, (i) A Certificate by the Borrower that all conditions to the Restructuring Transactions set forth in the Restructuring PlanTransaction Documents shall have been satisfied or the fulfillment of any such conditions shall have been waived by the Agent, (ii) (the Restructuring Transactions shall have become effective in accordance with the terms of the Restructuring Transaction Documents; and (iii) the Effective Date with respect to the Plan of Reorganization shall have occurred;
(f) As of the Closing Date, Agent shall have received a fully executed or conformed copy of each Restructuring Transaction Document and the foregoing transactions collectivelyany documents executed in connection therewith, together with copies of each of the actions set forth opinions of counsel delivered to the parties under the Restructuring Transaction Documents, accompanied by a letter from each such counsel (to the extent not inconsistent with such counsel’s established internal policies) authorizing Agent and Lender to rely upon such opinion to the same extent as though it were addressed to Agent and Lender;
(g) As of the Closing Date and Funding Date, each Restructuring Transaction Document shall be in Article 7 full force and effect, and shall be in form and substance satisfactory to be taken by Parent Agent; and
(h) As of the Closing Date and Funding Date, the Plan of Reorganization shall not have been amended, supplemented, restated or any otherwise modified, whether pursuant to Section 1127 of its Subsidiaries the Bankruptcy Code, court order, or otherwise, without the consent of Agent and, as of the Closing Date or prior as of the Funding Date and after giving effect to the Closing, and after taking into account any amendments, modifications or deviations described in the next sentenceRestructuring Transactions, the “Restructuring Transactions”) as promptly as reasonably practicable; provided that Parent Plan of Reorganization shall have been substantially consummated in accordance with the terms thereof and its Affiliates shall not be required to effect any transaction detailed on the Restructuring Plan that would result in a violation of any Applicable Law. Further, Parent and its Affiliates may amend, modify and deviate from any terms of the Restructuring Transactions detailed in the Restructuring Plan so long as Parent and/or its Affiliates obtain Buyer’s prior written consent (email being sufficient) with respect to any such amendment, modification or deviation (such consent not to be unreasonably withheld, conditioned or delayed) and which consent Confirmation Orders. No document shall be required for any such amendment, modification or deviation notwithstanding anything deemed delivered to the contrary contained in this Agreement. For clarity, it is understood and agreed (by way of example and not limitation) that it shall be reasonable for Buyer to withhold, condition or delay its consent with respect to any amendment, modification or deviation to or from the Restructuring Plan described on Section 2.07 of the Parent Disclosure Schedule. For the avoidance of doubt, any amendment, modification or deviation from the Restructuring Transactions detailed in the Restructuring Plan for which Buyer provides prior written consent shall not be considered a breach of this Section 2.07.
(b) Notwithstanding anything herein to the contrary, in no event shall any Person be required to take, effect or complete any action or transaction contemplated Agent until received by the Restructuring Transactions (i) that requires Agent at its offices in Boston, Massachusetts. Under no circumstances shall this Agreement take effect until executed and accepted by the consent or approval of any other Person until such consent or approval has been received, or (ii) in a chronological order that differs from that set forth in the Restructuring PlanAgent at said office.
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Restructuring Transactions. (ai) As promptly as reasonably practicable after In accordance with the plan of restructuring previously approved by the Board of Directors and stockholders of Z-D, prior to the date hereof but in any event no later than 30 days after the date hereof, Parent shall designate one of Appendix IIZ-A and Appendix II-B to be the Restructuring Plan by delivering written notice of such designation to Buyer. From and after the delivery D has sold all of the notice described in businesses listed on Section 3.2(r) of the preceding sentenceZ-D Disclosure Schedule (the "Divested Businesses"). Set forth on Section 3.2(r) of the Z-D Disclosure Schedule is a list of all agreements, Parent shall use reasonable best efforts arrangements and understandings to take, and shall cause its Affiliates to use reasonable best efforts to take, any and all actions necessary to effect the transactions contemplated by Section 2.02 through Section 2.06 and the other transactions detailed on the Restructuring Plan, including conveying, transferring, assigning and delivering any Transferred Asset or Assumed Liability from Parent which Z-D or any of its Subsidiaries is a party or pursuant to which they may have any Acquired Companyobligations or liabilities (whether absolute, conveyingcontingent or otherwise and whether or not required to be set forth or reflected in a consolidated balance sheet of Z-D prepared in accordance with GAAP) relating to the Divested Businesses or the sale thereof other than obligations or liabilities against which Z-D is indemnified by the buyer thereof (the "Divestiture Agreements"). Z-D has provided to CNET true and correct copies of the Divestiture Agreements. All of the Divestiture Agreements are in full force and effect and are unmodified. Except for obligations and liabilities arising under or described in the Divestiture Agreements, transferringneither Z-D nor any of its Subsidiaries has any liabilities or obligations of any nature (whether absolute, assigning contingent or otherwise and delivering whether or not required to be set forth or reflected in a consolidated balance sheet of Z-D prepared in accordance with GAAP) arising out of or relating to the Divested Businesses or their respective businesses, assets, liabilities or obligations or the sale thereof other than obligations or liabilities against which Z-D is indemnified by the buyer thereof. Except as set forth in Section 3.2(r) of the Z-D Disclosure Schedule, no claims have been asserted or threatened against Z-D or any Excluded Asset of its Subsidiaries under any of the Divestiture Agreements (including, without limitation, any claims in respect of a breach of any term of any such agreement or Excluded Liability from for any Acquired Company indemnification provided by Z-D or any of its Subsidiaries in any Divestiture Agreement) nor to Parent the knowledge of Z-D is there any basis for any such claim, in each case other than immaterial claims arising following the date hereof and prior to the Effective Time.
(ii) Except as disclosed in the Spin Co. S-1 as filed with the SEC prior to the date hereof, (A) Spin Co. and its Subsidiaries do not own or have any rights to use any properties, assets or other rights used in the conduct of the business of Z-D or any of Z-D's Subsidiaries (other than Spin Co. and Spin Co.'s Subsidiaries), (B) there are no agreements, arrangements, understandings or other transactions between Spin Co. or any of its Subsidiaries, on the one hand, and Z-D and any of its Subsidiaries (other than Spin Co. and its Subsidiaries) on the other and (C) since December 31, 1999 no officer or key employee of Z-D or any of its Subsidiaries (other than Spin Co. and its Subsidiaries) has transferred to, or otherwise become an Acquired Company)employee or consultant of, creating new Persons that will be Acquired Companies or changing the form of any Acquired Company, in each case, in a manner consistent with the Restructuring Plan (to the extent set forth in the Restructuring Plan) (the Restructuring Plan and the foregoing transactions collectively, together with the actions set forth in Article 7 to be taken by Parent Spin Co. or any of its Subsidiaries. The assets of Spin Co. and its Subsidiaries consist entirely of (i) assets reflected as "Net assets of discontinued operations" on the consolidated balance sheets of Z-D included in the Z-D Filed SEC Reports (the "Z-D Financial Statements") and (ii) assets acquired by Spin Co. and its Subsidiaries after the date of the Z-D Financial Statements. Since the date of the Z-D Financial Statements, neither Z-D nor any of its Subsidiaries (other than Spin Co. and its Subsidiaries) has transferred any assets or other rights to Spin Co. and its Subsidiaries except cash transfers prior to the Closing, and after taking into account any amendments, modifications or deviations described date hereof that are fully reflected in the next sentencenet inter-company payable from Spin Co. and its Subsidiaries to Z-D. Z-D and its Subsidiaries (other than Spin Co. and its Subsidiaries) do not have any liabilities or other obligations (whether absolute, contingent or otherwise and whether or not required to be set forth in or reflected on a balance sheet prepared in accordance with GAAP) arising out of or relating to Spin Co. or its Subsidiaries or their respective properties, assets and other activities other than (i) those to be expressly provided for in the Distribution Agreement (as defined below) and (ii) those for which Spin Co. will indemnify Z-D and its Subsidiaries pursuant to the Distribution Agreement. For all purposes of this Agreement, the “Restructuring Transactions”) as promptly as reasonably practicable; provided that Parent Subsidiaries of Spin Co. will include those entities being transferred to Spin Co. pursuant to the Distribution Agreement. All outstanding indebtedness of Spin Co. and its Affiliates shall not be required Subsidiaries (including the $150,000,000 interim debt facility) is non-recourse to effect any transaction detailed on the Restructuring Plan that would result in a violation of any Applicable Law. Further, Parent Z-D and its Affiliates may amend, modify Subsidiaries (other than Spin Co. and deviate from any its Subsidiaries). The Preliminary Spin-Off Prospectus included as part of the Restructuring Transactions detailed Spin Co. S-1 as filed with the SEC prior to the date hereof accurately describes in the Restructuring Plan so long as Parent and/or its Affiliates obtain Buyer’s prior written consent (email being sufficient) all material respects Z-D's current plans with respect to any such amendment, modification or deviation (such consent not to be unreasonably withheld, conditioned or delayed) the Spin-Off and which consent shall be required for any such amendment, modification or deviation notwithstanding anything to the contrary contained in this Agreement. For clarity, it is understood and agreed (by way of example and not limitation) that it shall be reasonable for Buyer to withhold, condition or delay its consent with respect to any amendment, modification or deviation to or from the Restructuring Plan described on Section 2.07 of the Parent Disclosure Schedule. For the avoidance of doubt, any amendment, modification or deviation from the Restructuring Transactions detailed in the Restructuring Plan for which Buyer provides prior written consent shall not be considered a breach of this Section 2.07.
(b) Notwithstanding anything herein to the contrary, in no event shall any Person be required to take, effect or complete any action or transaction contemplated by the Restructuring Transactions (i) that requires the consent or approval of any other Person until such consent or approval has been received, or (ii) in a chronological order that differs from that set forth in the Restructuring Plan.Cash
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Sources: Merger Agreement (Cnet Networks Inc)