Common use of Transaction Structure Clause in Contracts

Transaction Structure. Notwithstanding anything in this Agreement to the contrary, the Company Parties shall cooperate with and agree to any reasonable changes requested by Parent solely regarding the structure or steps of the transactions contemplated by this Article II (such cooperation shall include entering into appropriate amendments to this Agreement to reflect such reasonable changes) (the “Requested Changes”); provided that (a) any such Requested Changes would not reasonably be expected to have an adverse effect on the Company or any Company Subsidiary or the holders of the Company Common Stock, Partnership OP Units, Series A Preferred Units or Company Equity Awards, including any change to the form or amount of consideration to be received by holders of the Company Common Stock, Partnership OP Units, Series A Preferred Units or any Company Equity Awards, (b) none of the Requested Changes shall delay or prevent the Closing, (c) any amendments required to implement the Requested Changes must be made in accordance with Section 9.5, (d) none of the Company, the Partnership or any of their Subsidiaries (including all Company Subsidiaries) shall be required to take any action in contravention of any Laws, its organizational documents or any Company Material Contract, (e) the implementation of any such Requested Changes shall be contingent upon the receipt by the Company of a written notice from Parent confirming that all of the conditions set forth in Article VIII, other than such conditions that are to be satisfied at the Closing and the condition set forth in Section 8.1(a), have been satisfied (or, at the option of Parent, waived) and that the Parent Parties are prepared to proceed promptly following receipt of the approvals set forth in Section 8.1(a) with the Closing and any other evidence reasonably requested by the Company that the Closing will occur, (f) the Requested Changes (or the inability to complete the Requested Changes) shall not affect or modify in any respect the obligations of the Parent Parties under this Agreement, including payment of any consideration hereunder, (g) neither the Company nor any Company Subsidiary shall be required to take any such action that could adversely affect the classification of the Company as, or its qualification for taxation as, a REIT, and (h) neither the Company nor any Company Subsidiary shall be required to take any such action that would reasonably be expected to result in an amount of Taxes that are incrementally greater or more adverse than the Taxes which would be imposed on such person in the absence of the Requested Changes being imposed on, or other adverse Tax consequences to, any stockholder or other equity interest holder of the Company or the Partnership (in such person’s capacity as a stockholder or other equity interest holder of the Company or the Partnership), unless such holders are indemnified by the Parent Parties for such incremental Taxes. Parent shall, upon request by the Company or the Partnership, advance to the Company or the Partnership all reasonable out-of-pocket costs to be incurred by the Company or the Partnership or, promptly upon request by the Company or the Partnership, reimburse the Company or the Partnership for all reasonable out-of-pocket costs incurred by the Company or the Partnership in connection with any actions taken by the Company or the Partnership in accordance with this Section 2.5 (including reasonable fees and expenses of their Representatives). The Parent Parties, on a joint and several basis, hereby agree to indemnify and hold harmless the Company, the Partnership, their Subsidiaries (including all Company Subsidiaries), and their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with or as a result of taking such actions. Without limiting the foregoing, none of the representations, warranties or covenants of the Company Parties shall be deemed to apply to, or deemed breached or violated by, any of the Requested Changes. ARTICLE III

Transaction Structure. Notwithstanding anything in this Agreement to the contrary, the Company Parties shall cooperate with and agree to any reasonable changes requested by Parent solely regarding the structure or steps of the transactions contemplated by this Article II (such cooperation shall include entering into appropriate amendments to this Agreement to reflect such reasonable changes) (the “Requested Changes”); provided provided, however, that (a) any such Requested Changes would not reasonably be expected to have an adverse effect in any material respect on the Company or any Company Subsidiary or the holders of the Company Common StockShares, the Partnership OP Units, Series A Preferred Units or the Company Equity Awards, including any change to the form or amount of consideration to be received by holders of the Company Common StockShares, Partnership OP Units, Series A Preferred Units or any Company Equity Awards, (b) none of the Requested Changes shall delay or prevent the Closing, (c) any amendments required to implement the Requested Changes must be made in accordance with Section 9.510.3, (d) none of the Company, the Partnership or any of their Subsidiaries (including all Company Subsidiaries) shall be required to take any action in contravention of any Laws, its organizational documents or any Company Material Contract, (e) the implementation of any such Requested Changes shall be contingent upon the receipt by the Company of a written notice from Parent confirming that all of the conditions set forth in Article VIII, other than such conditions that are to be satisfied at the Closing and the condition set forth in Section 8.1(a), have been satisfied (or, at the option of Parent, waived) and that the Parent Parties are prepared to proceed promptly following receipt of the approvals set forth in Section 8.1(a) with the Closing and any other evidence reasonably requested by the Company that the Closing will occur, (f) the Requested Changes (or the inability to complete the Requested Changes) shall not affect or modify in any respect the obligations of the Parent Parties under this Agreement, including payment of any consideration hereunder, (g) neither the Company nor any Company Subsidiary shall be required to take any such action that could adversely affect the classification of the Company as, or its qualification for taxation as, a REIT, and (h) neither the Company nor any Company Subsidiary shall be required to take any such action that would reasonably be expected to result in an amount of Taxes that are incrementally greater or more adverse than the Taxes which would be imposed on such person in the absence of the Requested Changes being imposed on, or other adverse Tax consequences to, any stockholder shareholder or other equity interest holder of the Company or the Partnership (in such person’s capacity as a stockholder shareholder or other equity interest holder of the Company or the Partnership), unless such holders are indemnified by the Parent Parties for such incremental Taxes. Parent shall, upon request by the Company or the Partnership, advance to the Company or the Partnership all reasonable out-of-pocket costs to be incurred by the Company or the Partnership or, promptly upon request by the Company or the Partnership, reimburse the Company or the Partnership for all reasonable and documented out-of-pocket costs incurred by the Company or the Partnership in connection with any actions taken by the Company or the Partnership in accordance with this Section 2.5 (including reasonable fees and expenses of their Representatives). The Parent Parties, on a joint and several basis, hereby agree to indemnify and hold harmless the Company, the Partnership, their Subsidiaries (including all Company Subsidiaries), and their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with or as a result of taking such actions. Without limiting the foregoing, none of the representations, warranties or covenants of the Company Parties shall be deemed to apply to, or deemed breached or violated by, any of the Requested Changes. ARTICLE III.

Transaction Structure. Notwithstanding anything in this Agreement If, prior to the contrarydate on which Parent commences solicitation of proxies for use at the Parent Stockholders’ Meeting, the Company Parties IRS notifies TDCC that the IRS will not issue one or more of the requested rulings, then, during the sixty (60) day period starting from the date of such IRS notification, the parties hereto shall cooperate collaborate reasonably and in good faith in order to determine a possible alternative structure for the transactions contemplated hereby that the parties hereto determine, with and agree the assistance of their respective tax advisors, will either make likely the receipt from the IRS of the ruling at issue or eliminate the necessity for the rulings, in either case, without (a) increasing in any material respect the costs to any reasonable changes requested by Parent solely regarding party hereto or any of their respective Affiliates; (b) causing the structure or steps performance of the covenants and agreements of any party hereto to become more burdensome in any material respect; (c) expanding in any material respect the scope of consents and approvals required to consummate the transactions contemplated hereby; (d) decreasing in any material respect the expected benefits of the transactions contemplated by this Article II (such cooperation shall include entering into appropriate amendments hereby to this Agreement to reflect such reasonable changes) (the “Requested Changes”); provided that (a) any such Requested Changes would not reasonably be expected to have an adverse effect on the Company or any Company Subsidiary or the holders of the Company Common Stock, Partnership OP Units, Series A Preferred Units or Company Equity Awards, including any change to the form or amount of consideration to be received by holders of the Company Common Stock, Partnership OP Units, Series A Preferred Units or any Company Equity Awards, (b) none of the Requested Changes shall delay or prevent the Closing, (c) any amendments required to implement the Requested Changes must be made in accordance with Section 9.5, (d) none of the Company, the Partnership party hereto or any of their Subsidiaries (including all Company Subsidiaries) shall be required to take any action in contravention of any Laws, its organizational documents respective Affiliates; or any Company Material Contract, (e) otherwise resulting in any substantial impediment to the implementation of any such Requested Changes shall be contingent upon the receipt by the Company of a written notice from Parent confirming that all consummation of the conditions transactions contemplated hereby. In the event the parties hereto reasonably, and in good faith, agree upon such an alternative transaction structure, they shall, as soon as practicable thereafter, modify the covenants and agreements set forth in Article VIIIthis Agreement and the other Transaction Documents accordingly to reflect the change in transaction structure referenced in the immediately preceding sentence. In furtherance of the foregoing, other than such conditions that are each of the parties hereto shall take all action reasonably necessary to modify the ruling request to reflect the transactions as so modified and effectuate the change in transaction structure contemplated by this Section 2.08, and each party hereto shall use its reasonable best efforts to cause the transactions contemplated hereby, as so modified, to be satisfied at the Closing consummated as soon as practicable thereafter and the condition set forth in Section 8.1(a), have been satisfied (or, at the option of Parent, waived) and that the Parent Parties are prepared to proceed promptly following receipt of the approvals set forth in Section 8.1(a) with the Closing and any other evidence reasonably requested by the Company that the Closing will occur, (f) the Requested Changes (or the inability to complete the Requested Changes) shall not affect or modify in any respect the obligations of the Parent Parties under this Agreement, including payment of any consideration hereunder, (g) neither the Company nor any Company Subsidiary shall be required to take any such action that could adversely affect the classification of the Company as, or its qualification for taxation as, a REIT, and (h) neither the Company nor any Company Subsidiary shall be required to take any such action that would reasonably be expected to result in an amount of Taxes that are incrementally greater or more adverse than the Taxes which would be imposed on such person in the absence of the Requested Changes being imposed on, or other adverse Tax consequences to, any stockholder or other equity interest holder of the Company or the Partnership (in such person’s capacity as a stockholder or other equity interest holder of the Company or the Partnership), unless such holders are indemnified by the Parent Parties for such incremental Taxes. Parent shall, upon request by the Company or the Partnership, advance to the Company or the Partnership all reasonable out-of-pocket costs to be incurred by the Company or the Partnership or, promptly upon request by the Company or the Partnership, reimburse the Company or the Partnership for all reasonable out-of-pocket costs incurred by the Company or the Partnership in connection with any actions taken by the Company or the Partnership in accordance with the terms of this Section 2.5 (including reasonable fees and expenses of their Representatives). The Parent Parties, on a joint and several basis, hereby agree to indemnify and hold harmless the Company, the Partnership, their Subsidiaries (including all Company Subsidiaries), and their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with or as a result of taking such actions. Without limiting the foregoing, none of the representations, warranties or covenants of the Company Parties shall be deemed to apply to, or deemed breached or violated by, any of the Requested Changes. ARTICLE IIIAgreement.

Transaction Structure. Notwithstanding anything Pursuant to and in accordance with this Agreement to the contrarySection 2.08 and Section 5.13, the Company Parties shall cooperate with and agree to any reasonable changes requested by Parent solely regarding the structure or steps of Buyer will consummate the transactions contemplated by this Article II (such cooperation shall include entering into appropriate amendments to this Agreement to reflect such reasonable changes) by acquiring all of the newly issued shares of Reorganized RentPath (the “Requested ChangesReorganized Equity”) free and clear of all Liens, Claims and interests (other than Permitted Liens) pursuant to and in accordance with the terms and conditions set forth in the Plan and the Confirmation Order (the “Stock Transaction”), as specifically set forth in Exhibit F, instead of directly effectuating the sales, transfers, assignments, conveyances, deliveries and assumptions set forth in Section 2.01 and Section 2.02; provided provided, however, that the Buyer shall acquire the Reorganized Equity free and clear of all Liens, Claims and interests (other than Permitted Liens) only after (a) any such Requested Changes would not reasonably be expected all of the existing equity, all rights to have an adverse effect on the Company or any Company Subsidiary or the holders equity and all rights to acquire equity of the Company Common Stock, Partnership OP Units, Series A Preferred Units or Company Equity Awards, including any change to the form or amount of consideration to be received by holders of the Company Common Stock, Partnership OP Units, Series A Preferred Units or any Company Equity Awardsare cancelled, (b) none the discharge, release and/or exculpation (and injunction) of all Excluded Liabilities and Liens (other than Permitted Liens) on the Requested Changes shall delay or prevent Acquired Assets pursuant to the ClosingPlan and Confirmation Order, and (c) the transfer, assumption and assignment of all Excluded Assets (including the equity in Subsidiaries of the Company and any amendments other equity interests held by the Company in other Persons) and Excluded Liabilities to Wind Down Co., as provided in the Plan and Confirmation Order, such that immediately prior to the Buyer acquiring the Reorganized Equity, the only assets and liabilities held by Reorganized RentPath shall be the Acquired Assets and Assumed Liabilities. The consideration payable by the Buyer in respect of the Stock Transaction shall be the Purchase Price, and for the avoidance of doubt, all cash consideration paid by the Buyer to satisfy the Purchase Price under this Agreement shall be paid to an account designated by the Sellers or Wind Down Co., as applicable. Wind Down Co. shall take all steps required by the Plan and Confirmation Order with respect to implement the Requested Changes must be made Excluded Liabilities pursuant to and in accordance with Section 9.5, (d) none the Plan and the Confirmation Order. All of the Company, the Partnership or any of their Subsidiaries (including all Company Subsidiaries) shall be required to take any action in contravention of any Laws, its organizational documents or any Company Material Contract, (e) the implementation of any such Requested Changes shall be contingent upon the receipt by the Company of a written notice from Parent confirming that all of the conditions terms set forth in Article VIII, other than such conditions that are to be satisfied at the Closing and the condition set forth in Section 8.1(a), have been satisfied (or, at the option of Parent, waived) and that the Parent Parties are prepared to proceed promptly following receipt of the approvals set forth in Section 8.1(a) with the Closing and any other evidence reasonably requested by the Company that the Closing will occur, (f) the Requested Changes (or the inability to complete the Requested Changes) shall not affect or modify in any respect the obligations of the Parent Parties under this Agreement, including payment of any consideration hereunder, (g) neither the Company nor any Company Subsidiary Agreement shall be required applicable and fully enforceable with respect to take any such action Stock Transaction in a manner that could adversely affect the classification of the Company as, or its qualification for taxation as, a REIT, and (h) neither the Company nor any Company Subsidiary shall be required to take any such action that would reasonably be expected to result in an amount of Taxes that are incrementally greater or more adverse than the Taxes which would be imposed on such person in the absence of the Requested Changes being imposed on, or other adverse Tax consequences to, any stockholder or other equity interest holder of the Company or the Partnership (in such person’s capacity as a stockholder or other equity interest holder of the Company or the Partnership), unless such holders are indemnified by the Parent Parties for such incremental Taxes. Parent shall, upon request by the Company or the Partnership, advance gives effect to the Company or the Partnership all reasonable out-of-pocket costs to be incurred transactions contemplated by the Company or the Partnership or, promptly upon request by the Company or the Partnership, reimburse the Company or the Partnership for all reasonable out-of-pocket costs incurred by the Company or the Partnership in connection with any actions taken by the Company or the Partnership in accordance with this Section 2.5 (including reasonable fees and expenses of their Representatives). The Parent Parties, on a joint and several basis, hereby agree to indemnify and hold harmless the Company, the Partnership, their Subsidiaries (including all Company Subsidiaries), and their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with or as a result of taking such actions. Without limiting the foregoing, none of the representations, warranties or covenants of the Company Parties shall be deemed to apply to, or deemed breached or violated by, any of the Requested Changes. ARTICLE III2.08.

Transaction Structure. Notwithstanding anything in this Agreement to In the contrary, the Company Parties shall cooperate with and agree to any reasonable changes requested by Parent solely regarding the structure or steps of the transactions contemplated by this Article II (such cooperation shall include entering into appropriate amendments to this Agreement to reflect such reasonable changes) (the “Requested Changes”); provided event that (a) any such Requested Changes would not reasonably be expected to have an adverse effect on the Company or any Company Subsidiary or the holders of the Company Common Stock, Partnership OP Units, Series A Preferred Units or Company Equity Awards, including any change to the form or amount of consideration to be received by holders of the Company Common Stock, Partnership OP Units, Series A Preferred Units or any Company Equity Awards, (b) none of the Requested Changes shall delay or prevent the Closing, (c) any amendments required to implement the Requested Changes must be made in accordance with Section 9.5, (d) none of the Company, the Partnership or any of their Subsidiaries (including all Company Subsidiaries) shall be required to take any action in contravention of any Laws, its organizational documents or any Company Material Contract, (ei) the implementation of any such Requested Changes shall be contingent upon the receipt by the Company of a written notice from Parent confirming that all of the conditions consent set forth in Article VIII, other than such conditions that are Schedule 4(a)(iv) is not reasonably expected to be satisfied at obtained (and in any event if such consent has not been obtained within five (5) business days prior to the scheduled Closing Date set forth in Section 3(a)) and Buyer has not waived the condition set forth in Section 8.1(a4(a)(iv) and (ii) Seller and Buyer are not able to reach an agreement on the terms of the Alternative Agreement despite the use of commercially reasonable best efforts and good faith in the negotiation thereof as required by Section 9(a)(iv), have been satisfied (orBuyer shall cooperate with Seller, at Seller’s request, to amend and modify this Agreement and the option of Parentother agreements contemplated hereby, waived) and that the Parent Parties are prepared to proceed promptly following receipt of the approvals set forth in Section 8.1(a) with the Closing and any other evidence such manner as reasonably requested by Seller to implement an alternative structure for the Company transfer of the Business to Buyer from that contemplated in this Agreement provided such amended Agreement shall contain the provisions (“Required Provisions”) set forth below in form reasonably satisfactory to Seller (or Alternative Seller, as defined below) and Buyer. Without limiting the generality of the foregoing, the alternative structure may take the form of (1) a sale of stock of Seller by the stockholders of Seller (the “338(h)(10) Alternative”), (2) a sale of stock of Seller (which, under this alternative, would elect to be treated as a qualified subchapter S subsidiary within the meaning of Code Section 1361 prior to the Closing will occurDate) by a new entity (“Alternative Seller”) treated as an S corporation for federal income tax purposes and formed for the purpose of holding the capital stock of Seller (the “QSSS Alternative”), or (3) a sale of the equity interests of a limited liability company (the “Successor”) that is a successor (by merger or conversion) of Seller that does not elect to be treated as a corporation for federal income Tax purposes (the “Successor Alternative”). The Required Provisions shall (A) provide for the purchase and sale of the shares of capital stock of Seller (or equity interests in the Successor, if applicable) in lieu of the Assets, (fB) require the Requested Changes (or filing of an election under Code Section 338(h)(10), and any corresponding election under state, local, and foreign Tax law with respect to the inability to complete the Requested Changes) shall not affect or modify in any respect the obligations purchase of the Parent Parties under this Agreement, including payment shares of any consideration hereunder, (gcapital stock of Seller if the 338(h)(10) neither the Company nor any Company Subsidiary shall be required to take any such action that could adversely affect the classification of the Company as, or its qualification for taxation as, a REITAlternative is selected, and (hC) neither provide for the Company nor transfer of any Company Subsidiary Excluded Assets to the Seller’s assignee or assignees and the assumption by the Alternative Seller of any Excluded Liabilities. The alternative structure shall be required selected by Buyer and shall be reasonably acceptable to take the Seller, provided that the parties hereto agree the Successor Alternative shall be reasonably acceptable to Seller in the event that no change in any such action Tax law that would reasonably be expected to result in an amount of Taxes that are incrementally greater or more have a material adverse than impact on the Taxes which would be imposed on such person in the absence of the Requested Changes being imposed on, or other adverse Tax consequences toto Seller or Alternative Seller (or their respective stockholders or equityholders, any stockholder as applicable) of such alternative occurs on or other equity interest holder of before the Company or Closing Date. Notwithstanding anything to the Partnership (contrary in such person’s capacity as a stockholder or other equity interest holder of the Company or the Partnershipthis Section 9(j), Buyer need not accept an alternative structure unless such holders are indemnified by alternative structure delivers substantially the Parent Parties for such incremental Taxes. Parent shall, upon request by the Company or the Partnership, advance to the Company or the Partnership all reasonable out-of-pocket costs to be incurred by the Company or the Partnership or, promptly upon request by the Company or the Partnership, reimburse the Company or the Partnership for all reasonable out-of-pocket costs incurred by the Company or the Partnership in connection with any actions taken by the Company or the Partnership in accordance with this Section 2.5 same economic result (including reasonable fees asset step-up basis for tax purposes) and expenses of their Representatives). The Parent Parties, would not have a material adverse effect on a joint and several basis, hereby agree to indemnify and hold harmless the Company, the Partnership, their Subsidiaries (including all Company Subsidiaries), and their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered Buyer or incurred by them in connection with or as a result of taking such actions. Without limiting the foregoing, none of the representations, warranties or covenants of the Company Parties shall be deemed to apply to, or deemed breached or violated by, any of the Requested Changes. ARTICLE IIIits Affiliates.