Common use of Notwithstanding Section 8 Clause in Contracts

Notwithstanding Section 8. 01(a), any Consenting Senior Noteholder may Transfer any Company Claims/Interests to a Qualified Marketmaker and such Qualified Marketmaker that acquires any Company Claims/Interests with the purpose and intent of acting as a Qualified Marketmaker for such Company Claims/Interests shall not be required to execute and deliver a Transfer Agreement in respect of such Company Claims/Interests if: (i) such Qualified Marketmaker subsequently transfers such Company Claims/Interests (by purchase, sale assignment, participation, or otherwise) within five (5) Business Days of its acquisition to a transferee that is an entity that is not an affiliate, affiliated fund, or affiliated entity with a common investment advisor; (ii) the transferee otherwise is a Permitted Transferee under Section 8.01(a); and (iii) the Transfer otherwise is a permitted Transfer under Section 8.01(a). To the extent that a Consenting Senior Noteholder is acting in its capacity as a Qualified Marketmaker, it may Transfer (by purchase, sale, assignment, participation, or otherwise) any right, title or interests in Company Claims/Interests that the Qualified Marketmaker acquires from a holder of the Company Claims/Interests who is not a Consenting Senior Noteholder without the requirement that the transferee be a Permitted Transferee. Notwithstanding the foregoing, if, at the time of the proposed Transfer of such Company Claims/Interests to the Qualified Marketmaker, such Company Claims/Interests (x) may be voted on the Plan, the proposed transferor Consenting Senior Noteholder must first vote such Company Claims/Interests in accordance with the requirements of Section 4.01(a)(i), or (y) have not yet been and may not yet be voted on the Plan and such Qualified Marketmaker does not Transfer such Company Claims/Interests to a subsequent transferee prior to the fifth (5th) Business Day prior to the expiration of the voting deadline (such date, the “Qualified Marketmaker Joinder Date”), such Qualified Marketmaker shall be required to (and the transfer documentation to the Qualified Marketmaker shall have provided that it shall), on the first Business Day immediately following the Qualified Marketmaker Joinder Date, become a Consenting Senior Noteholder with respect to such Company Claims/Interests in accordance with the terms hereof (provided that the Qualified Marketmaker shall automatically, and without further notice or action, no longer be a Consenting Senior Noteholder with respect to such Company Claims/Interests at such time that the transferee of such Company Claims/Interests becomes a Consenting Senior Noteholder with respect to such Company Claims/Interests).

Notwithstanding Section 8. 01(a7(c), this Section 9.2 shall control any Consenting Senior Noteholder may Transfer inquiries, assessments, proceedings or similar events with respect to Taxes. Buyer shall promptly notify the Seller Representative (a) upon receipt by Buyer or any Company Claims/Interests Affiliate of the Buyer of any notice of any Tax Matter from any Taxing Authority relating to a Qualified Marketmaker taxable period or portion thereof ending on or before the Closing Date or (b) prior to Buyer, the Company or the Subsidiaries initiating any Tax Matter with any Taxing Authority other than the states indentified in Schedule 8.3(a) relating to a taxable period or portion thereof ending on or before the Closing Date. The Seller Representative may, at the Sellers’ expense, participate in and, upon written notice to Buyer, assume the defense of any such Tax Matter. If the Seller Representative assumes such defense, the Seller Representative shall have the authority, with respect to any Tax Matter, to represent the interests of the Company and the Subsidiaries before the relevant Taxing Authority and the Seller Representative shall have the right to control the defense, compromise or other resolution of any such Qualified Marketmaker Tax Matter subject to the limitations contained herein, including responding to inquiries, and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of, or relating to, such Tax Matter. If the Seller Representative has assumed such defense, the Sellers shall bear the cost of such defense. Buyer shall have the right (but not the duty) to participate in the defense of such Tax Matter and to employ counsel, solely at its own expense, separate from the counsel employed by the Seller Representative. The Seller Representative shall not enter into any settlement of or otherwise compromise any such Tax Matter to the extent that acquires it adversely affects the Tax liability of Buyer, the Company, the Subsidiaries or any Company Claims/Interests with Affiliate of the purpose and intent foregoing for a post-Closing Tax period without the prior written consent of acting as a Qualified Marketmaker for such Company Claims/Interests Buyer, which consent shall not be required to execute and deliver a Transfer Agreement in respect of such Company Claims/Interests if: (i) such Qualified Marketmaker subsequently transfers such Company Claims/Interests (by purchaseunreasonably conditioned, sale assignment, participation, withheld or otherwise) within five (5) Business Days of its acquisition to a transferee that is an entity that is not an affiliate, affiliated fund, or affiliated entity with a common investment advisor; (ii) the transferee otherwise is a Permitted Transferee under Section 8.01(a); and (iii) the Transfer otherwise is a permitted Transfer under Section 8.01(a)delayed. To the extent that a Consenting Senior Noteholder is acting in its capacity as a Qualified Marketmaker, it may Transfer (by purchase, sale, assignment, participation, or otherwise) any right, title or interests in Company Claims/Interests that the Qualified Marketmaker acquires from a holder of the Company Claims/Interests who is not a Consenting Senior Noteholder without the requirement that the transferee be a Permitted Transferee. Notwithstanding the foregoing, if, at the time of the proposed Transfer of such Company Claims/Interests to the Qualified Marketmaker, such Company Claims/Interests (x) may be voted on the Plan, the proposed transferor Consenting Senior Noteholder must first vote such Company Claims/Interests in accordance with the requirements of Section 4.01(a)(i), or (y) have not yet been and may not yet be voted on the Plan and such Qualified Marketmaker does not Transfer such Company Claims/Interests to a subsequent transferee prior to the fifth (5th) Business Day prior to the expiration of the voting deadline (such date, the “Qualified Marketmaker Joinder Date”), such Qualified Marketmaker The Seller Representative shall be required to (and the transfer documentation to the Qualified Marketmaker shall have provided that it shall), on the first Business Day immediately following the Qualified Marketmaker Joinder Date, become a Consenting Senior Noteholder keep Buyer informed with respect to the commencement, status and nature of any such Company Claims/Interests in accordance with the terms hereof (provided that the Qualified Marketmaker shall automaticallyTax Matter, and without further notice will, in good faith, allow Buyer to consult with it regarding the conduct of or action, no longer be a Consenting Senior Noteholder with respect to positions taken in any such Company Claims/Interests at such time that the transferee of such Company Claims/Interests becomes a Consenting Senior Noteholder with respect to such Company Claims/Interests)proceeding.

Notwithstanding Section 8. 01(a)4(a) above, any Consenting Senior Noteholder may Transfer any Company Claims/Interests if a Superior Acquisition Proposal (as defined herein) is made to a Qualified Marketmaker the Seller and not withdrawn and the Board of Directors of the Seller determines in good faith, after consultation with outside counsel, that, in light of such Qualified Marketmaker Superior Acquisition Proposal, it is necessary to subsequently conduct Alternative Efforts (as defined herein) with respect to the person or group making the Superior Acquisition Proposal in order to fulfill its fiduciary duties to the Seller’s shareholders under applicable law, the Board of Directors of the Seller shall conduct such Alternative Efforts following receipt of the Superior Acquisition Proposal, but only after the fifth business day following Parent’s receipt of written notice advising Parent that acquires any Company Claims/Interests the Board of Directors of the Seller intends to conduct such Alternative Efforts. During such five-day period, the Seller and its advisors shall negotiate in good faith with Parent to make such adjustments in the terms and conditions of this Agreement so that as adjusted the proposal of Parent would be superior to the Superior Acquisition Proposal, in light of all of the facts and circumstances, so that in the reasonable judgment of the Board of Directors of the Seller the Board of Directors would recommend that the Seller proceed with the purpose and intent transactions proposed by Purchaser on such adjusted terms. For purposes of acting as this Agreement, “Superior Acquisition Proposal” shall mean shall mean an unsolicited, bona fide offer made by a Qualified Marketmaker for such Company Claims/Interests shall not be required third party to execute and deliver a Transfer Agreement in respect of such Company Claims/Interests if: (i) such Qualified Marketmaker subsequently transfers such Company Claims/Interests (by purchase, sale assignment, participation, or otherwise) within five (5) Business Days of its acquisition to a transferee that is an entity that is not an affiliate, affiliated fund, or affiliated entity with a common investment advisor; (ii) the transferee otherwise is a Permitted Transferee under Section 8.01(a); and (iii) the Transfer otherwise is a permitted Transfer under Section 8.01(a). To the extent that a Consenting Senior Noteholder is acting in its capacity as a Qualified Marketmaker, it may Transfer (by purchase, sale, assignment, participation, or otherwise) consummate any right, title or interests in Company Claims/Interests that the Qualified Marketmaker acquires from a holder of the Company Claims/Interests who is not a Consenting Senior Noteholder without the requirement that the transferee be a Permitted Transferee. Notwithstanding the foregoing, if, at the time of the proposed Transfer of such Company Claims/Interests to the Qualified Marketmaker, such Company Claims/Interests following transactions (x) may be voted on a sale or other disposition by the Plan, the proposed transferor Consenting Senior Noteholder must first vote such Company Claims/Interests in accordance with the requirements Seller of Section 4.01(a)(i), all or substantially all of its assets or (y) have not yet been and may not yet be voted on the Plan and such Qualified Marketmaker does not Transfer such Company Claims/Interests acquisition by any person or group (including by merger, exchange offer or issuance by the Seller) directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing a subsequent transferee prior to the fifth (5th) Business Day prior to the expiration majority of the voting deadline (power of the then outstanding shares of Seller Stock, on terms that the Board of Directors of the Seller determines in good faith to be more favorable to the Seller shareholders than the terms of the Asset Sale; provided, however, that any such date, the “Qualified Marketmaker Joinder Date”), such Qualified Marketmaker offer shall not be deemed to be a Superior Acquisition Proposal if any financing required to (and consummate the transfer documentation transaction contemplated by such offer is not committed or is not likely in the reasonable judgment of the Seller’s Board of Directors to the Qualified Marketmaker shall have provided that it shall), be obtained by such third party on the first Business Day immediately following the Qualified Marketmaker Joinder Date, become a Consenting Senior Noteholder with respect to such Company Claims/Interests in accordance with the terms hereof (provided that the Qualified Marketmaker shall automatically, and without further notice or action, no longer be a Consenting Senior Noteholder with respect to such Company Claims/Interests at such time that the transferee of such Company Claims/Interests becomes a Consenting Senior Noteholder with respect to such Company Claims/Interests)timely basis.