Common use of SpinCo Covenants Exceptions Clause in Contracts

SpinCo Covenants Exceptions. Notwithstanding the provisions of Section 6(b), SpinCo and the other SpinCo Parties may take any action that would reasonably be expected to be inconsistent with the covenants contained in Section 6(b), if prior to taking any such actions, SpinCo shall (1) have received a favorable private letter ruling from the IRS, or a ruling from another Tax Authority that confirms that such action or actions will not result in Distribution Taxes, taking into account such actions and any other relevant transactions in the aggregate (a “Post-Distribution Ruling”), in form and substance satisfactory to Jefferies in its discretion, which discretion shall be reasonably exercised in good faith to prevent the imposition on Jefferies, or responsibility for payment by Jefferies, of Distribution Taxes (which discretion shall include consideration of the reasonableness of any representations made in connection with such Post-Distribution Ruling) or (2) have received an Unqualified Tax Opinion, taking into account such actions and any other relevant transactions in the aggregate, in form and substance satisfactory to Jefferies (including any representations or assumptions that may be included in such Unqualified Tax Opinion), acting reasonably and in good faith solely to prevent the imposition on Jefferies, or responsibility for payment by Jefferies, of Distribution Taxes. SpinCo shall provide a copy of the Post-Distribution Ruling or the Unqualified Tax Opinion described in this paragraph to Jefferies as soon as practicable prior to taking or failing to take any action set forth in the foregoing clause (b). ▇▇▇▇▇▇▇▇▇’▇ evaluation of a Post-Distribution Ruling or Unqualified Tax Opinion may consider, among other factors, the appropriateness of any underlying assumptions, representations, and covenants made in connection with such Post-Distribution Ruling or Unqualified Tax Opinion. SpinCo shall bear all costs and expenses of securing any such Post-Distribution Ruling or Unqualified Tax Opinion and shall reimburse Jefferies for all reasonable out-of-pocket costs and expenses that Jefferies may incur in good faith in seeking to obtain or evaluate any such Post-Distribution Ruling or Unqualified Tax Opinion. SpinCo shall not be relieved of any liability under Section 8 of this Agreement by reason of having obtained such a Post-Distribution Ruling or Unqualified Tax Opinion.

SpinCo Covenants Exceptions. Notwithstanding the provisions of Section 6(b10(b), SpinCo SpinCo, Parent and the other SpinCo Parties may take members of their respective Groups may: (i) pay cash to acquire assets in arm’s length transactions, engage in transactions that are disregarded for U.S. federal Tax purposes, and make mandatory or optional repayments or prepayments of indebtedness; (ii) dispose of assets if the aggregate fair value of all such assets does not exceed $[●] million; or (iii) in the case of any other action that would reasonably be expected to be inconsistent with the covenants contained in Section 6(b10(b), if prior either: (A) SpinCo or Parent notifies the Company of its proposal to taking any take such actions, SpinCo shall (1) have received action and Parent and the Company obtain a favorable private letter ruling from the IRS, or a ruling from another Tax Authority that confirms IRS to the effect that such action or actions will not result affect the Tax-Free Status, provided that Parent agrees in Distribution Taxeswriting to bear any expenses associated with obtaining such a ruling and, taking into account such actions and any other relevant transactions in provided, further, that the aggregate (a “Post-Distribution Ruling”), in form and substance satisfactory to Jefferies in its discretion, which discretion shall be reasonably exercised in good faith to prevent the imposition on Jefferies, or responsibility for payment by Jefferies, of Distribution Taxes (which discretion shall include consideration of the reasonableness of any representations made in connection with such Post-Distribution Ruling) or (2) have received an Unqualified Tax Opinion, taking into account such actions and any other relevant transactions in the aggregate, in form and substance satisfactory to Jefferies (including any representations or assumptions that may be included in such Unqualified Tax Opinion), acting reasonably and in good faith solely to prevent the imposition on Jefferies, or responsibility for payment by Jefferies, of Distribution Taxes. SpinCo shall provide a copy of the Post-Distribution Ruling or the Unqualified Tax Opinion described in this paragraph to Jefferies as soon as practicable prior to taking or failing to take any action set forth in the foregoing clause (b). ▇▇▇▇▇▇▇▇▇’▇ evaluation of a Post-Distribution Ruling or Unqualified Tax Opinion may consider, among other factors, the appropriateness of any underlying assumptions, representations, and covenants made in connection with such Post-Distribution Ruling or Unqualified Tax Opinion. SpinCo shall bear all costs and expenses of securing any such Post-Distribution Ruling or Unqualified Tax Opinion and shall reimburse Jefferies for all reasonable out-of-pocket costs and expenses that Jefferies may incur in good faith in seeking to obtain or evaluate any such Post-Distribution Ruling or Unqualified Tax Opinion. SpinCo Parent Group shall not be relieved of any liability under Section 8 14(a) by reason of this Agreement seeking or having obtained such a ruling; or (B) SpinCo or Parent notifies the Company of its proposal to take such action and obtains an unqualified opinion of counsel in form and substance reasonably satisfactory to the Company (x) from a Tax advisor recognized as an expert in U.S. federal income Tax matters and reasonably acceptable to the Company, (y) on which the Company may rely and (z) to the effect that such action will not affect the Tax-Free Status (assuming that the Internal Reorganization, the Distribution and the Merger otherwise qualify for the Tax-Free Status), provided, further, that the Parent Group shall not be relieved of any liability under Section 14(a) by reason of having obtained such an opinion. the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to cooperate in good faith with any reasonable written request by Parent to obtain any ruling from the IRS or any opinion of counsel described in the preceding sentence, including by providing such information, representations and covenants as the IRS or tax counsel shall reasonably require in connection with the ruling or opinion; provided that neither the Company nor any of its Subsidiaries shall be required to (x) make any representation that such Person does not believe to be accurate, (y) agree to any covenant with which it is not reasonably practicable to comply or (z) deliver any information that the Company, in its good faith judgment, considers to be confidential information that is not (and is not reasonably expected to become) a Post-Distribution Ruling or Unqualified Tax Opinionpart of any other publicly available information.