Common use of Transaction Structure Clause in Contracts

Transaction Structure. If, prior to the date on which Parent commences solicitation of proxies for use at the Parent Stockholders’ Meeting, the 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 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 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 party hereto or any of their respective Affiliates; (b) causing the 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 hereby to any party hereto or any of their respective Affiliates; or (e) otherwise resulting in any substantial impediment to the consummation of the 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 this 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, 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 consummated as soon as practicable thereafter and in accordance with the terms of this Agreement.

Transaction Structure. If, prior Notwithstanding anything in this Agreement to the date on which Parent commences solicitation of proxies for use at the Parent Stockholders’ Meetingcontrary, the IRS notifies TDCC that Company Parties shall cooperate with and agree to any reasonable changes requested by Parent solely regarding the IRS will not issue one structure or more steps of the requested rulings, then, during the sixty (60) day period starting from the date of such IRS notification, the parties hereto shall collaborate reasonably and in good faith in order to determine a possible alternative structure for the transactions contemplated hereby 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 the parties hereto determine, with 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 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 any material respect accordance with Section 9.5, (d) none of the costs to any party hereto Company, the Partnership or any of their respective Affiliates; Subsidiaries (bincluding all Company Subsidiaries) causing the performance of the covenants and agreements shall be required to take any action in contravention 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 hereby to any party hereto Laws, its organizational documents or any of their respective Affiliates; or Company Material Contract, (e) otherwise resulting in the implementation of any substantial impediment to such Requested Changes shall be contingent upon the consummation receipt by the Company of a written notice from Parent confirming that all of the 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 conditions set forth in this Agreement 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 Transaction Documents accordingly evidence reasonably requested by the Company that the Closing will occur, (f) the Requested Changes (or the inability to reflect complete the change Requested Changes) shall not affect or modify in transaction structure referenced 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 immediately preceding sentenceabsence 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. In furtherance 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, each none of the parties hereto representations, warranties or covenants of the Company Parties shall take all action reasonably necessary be deemed to modify apply to, or deemed breached or violated by, any of 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 consummated as soon as practicable thereafter and in accordance with the terms of this Agreement.Requested Changes. ARTICLE III

Transaction Structure. If, prior Notwithstanding anything in this Agreement to the date on which Parent commences solicitation of proxies for use at the Parent Stockholders’ Meetingcontrary, the IRS notifies TDCC that Company Parties shall cooperate with and agree to any reasonable changes requested by Parent solely regarding the IRS will not issue one structure or more steps of the requested rulings, then, during the sixty (60) day period starting from the date of such IRS notification, the parties hereto shall collaborate reasonably and in good faith in order to determine a possible alternative structure for the transactions contemplated hereby by this Article II (such cooperation shall include entering into appropriate amendments to this Agreement to reflect such reasonable changes) (the “Requested Changes”); provided, however, that the parties hereto determine, with 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 any such Requested Changes would not reasonably be expected to have an adverse effect in any material respect on the costs Company or any Company Subsidiary or the holders of the Company Common Shares, the Partnership OP 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 Shares, Partnership OP Units or any party hereto 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 10.3, (d) none of the Company, the Partnership or any of their respective Affiliates; Subsidiaries (bincluding all Company Subsidiaries) causing the performance of the covenants and agreements shall be required to take any action in contravention 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 hereby to any party hereto Laws, its organizational documents or any of their respective Affiliates; or Company Material Contract, (e) otherwise resulting in the implementation of any substantial impediment to such Requested Changes shall be contingent upon the consummation receipt by the Company of a written notice from Parent confirming that all of the 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 conditions set forth in this Agreement 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 Transaction Documents accordingly evidence reasonably requested by the Company that the Closing will occur, (f) the Requested Changes (or the inability to reflect complete the change Requested Changes) shall not affect or modify in transaction structure referenced 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 immediately preceding sentenceabsence of the Requested Changes being imposed on, or other adverse Tax consequences to, any shareholder or other equity interest holder of the Company or the Partnership (in such person’s capacity as a 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. In furtherance Parent shall, 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, each none of the parties hereto representations, warranties or covenants of the Company Parties shall take all action reasonably necessary be deemed to modify apply to, or deemed breached or violated by, any of 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 consummated as soon as practicable thereafter and in accordance with the terms of this AgreementRequested Changes.

Transaction Structure. IfPrior to the Closing, the Parties agree to co-operate in structuring the sale of the Purchased Assets as set forth in Schedule 2.5 and, to the extent necessary, any amendments made thereto with the consent of the Parties prior to the date on which Parent commences solicitation Closing Time, subject to the following: (a) the Buyer will structure the implementation of proxies for use at steps 2 and 13 (the Parent Stockholders’ Meeting“Buyer Purchase Structure”) as set forth in Schedule 2.5 in a manner so that no costs and expenses (including, the IRS notifies TDCC that the IRS without limitation, legal fees and disbursements) will not issue one be borne by MDS or more any of the requested rulingsother Sellers and Buyer will be solely responsible for any and all Taxes actually incurred by MDS in connection with or in any way related to the implementation of the Buyer Purchase Structure and any costs and expenses (including, thenwithout limitation, during legal fees and disbursements) actually incurred by MDS or the sixty Sellers in the event of the termination or unwinding of such steps of the Buyer Purchase Structure should Closing not occur (60unless Closing does not occur as a result of the failure of MDS to satisfy any conditions precedent within its control), and the Buyer shall indemnify and reimburse MDS and the Sellers forthwith, on an as incurred basis, for any and all such Taxes, costs and expenses; (b) day period starting from without restricting the application of paragraph (a) above, MDS agrees to reasonably cooperate with Buyer in respect of any required or desired amendment to Schedule 2.5 following the date of this Agreement; provided, however, that (i) if MDS or any of the Operators incurs incremental Taxes in connection with or in any way related to the subject matter of the amendment, or (ii) if such IRS notificationamendment materially increases the risk for liability to Tax to MDS or any of the Operators, and MDS or any of the parties hereto Operators incurs Taxes in connection with or in any way related to the subject matter of such amendment, in both (i) and (ii) as determined by MDS, acting reasonably, Buyer shall collaborate be solely responsible for any and all such Taxes. In the event of any such amendment, Buyer shall be responsible for all costs and expenses (including, without limitation, all legal fees and disbursements) actually incurred by MDS or any of the Operators in connection with or in any way related to implementation of the subject matter of any such amendment to Schedule 2.5. Buyer shall indemnify and reimburse each of MDS and the Operators forthwith, on an as incurred basis, for any and all such Taxes, costs and expenses so incurred; (c) without restricting the application of paragraph (a) above, Buyer agrees to reasonably cooperate with MDS in respect of any required or desired amendment to Schedule 2.5 following the date of this Agreement; provided, however, that (i) if Buyer or any Designated Buyer Affiliate incurs incremental Taxes in connection with or in any way related to the subject matter of the amendment, or (ii) if such amendment materially increases the risk for liability to Tax to Buyer or any Designated Buyer Affiliate, and Buyer or any Designated Buyer Affiliate incurs Taxes in good faith connection with or in order any way related to determine a possible alternative structure the subject matter of such amendment, in both (i) and (ii) as determined by Buyer, acting reasonably, MDS shall be solely responsible for any and all such Taxes. In the event of any such amendment, MDS shall be responsible for all costs and expenses (including, without limitation, all legal fees and disbursements) actually incurred by Buyer or any Designated Buyer Affiliate in connection with or in any way related to implementation of the subject matter of any such amendment to Schedule 2.5. MDS shall indemnify and reimburse each of Buyer or any Designated Buyer Affiliate forthwith, on an as incurred basis, for any and all such Taxes, costs and expenses so incurred; and (d) the obligation of the Parties set forth in this Section 5.13 shall, notwithstanding any other provision of this Agreement to the contrary, survive completion or termination of this Agreement and the transactions contemplated hereby that and shall continue in full force and effect for the parties hereto determine, with the assistance of their respective tax advisors, will either make likely the receipt from the IRS benefit of the ruling at issue or eliminate other Party until 60 days after the necessity for expiration of the rulingsperiod during which, in either case, without (a) increasing in any material respect the costs to any party hereto or any of their respective Affiliates; (b) causing the performance of the covenants and agreements absence of any party hereto to become more burdensome in any material respect; (c) expanding in any material respect the scope waiver or other document extending such period, an assessment, reassessment or other form of consents and approvals required to consummate the transactions contemplated hereby; (d) decreasing in any material respect the expected benefits of the transactions contemplated hereby to any party hereto or any of their respective Affiliates; or (e) otherwise resulting in any substantial impediment to the consummation of the 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 this 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, 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 recognized document assessing liability for Taxes could be consummated as soon as practicable thereafter and in accordance with the terms of this Agreementissued under applicable Tax laws.

Transaction Structure. If(a) If requested by any other Party to implement any reorganization transactions or implement any changes to the structure of the Transactions (each, a “Pre-Closing Reorganization”), each Party shall consider such Pre-Closing Reorganization in good faith and cooperate with the other Parties to the extent it determines in good faith that such reorganization transactions or transaction structure changes are advisable, in the best interests of the Company and will not (i) have an adverse impact on such Party or its direct or indirect Subsidiaries or securityholders, (ii) alter or change the amount or kind of the consideration to be received or paid by any of its or any of its securityholders in connection with the Transactions, (iii) have an adverse effect on the Tax consequences of the Transactions to the Party or any of its Subsidiaries or its direct or indirect securityholders, (iv) materially impede or delay consummation of any of the Transactions, and (v) result in any breach by any Party or any of its Subsidiaries of any Material Contract in the case of the Company and its Subsidiaries or any Contract in the case of FEAC and its Subsidiaries or, in each case, any Contract with a Governmental Entity, Order, Governing Document or Law. Any such changes to the structure of the Transactions that are agreed upon by FEAC and the Company shall be set forth in writing in an amendment to this Agreement pursuant to the terms hereof. (b) Each Party hereby waives any breach of a representation, warranty or covenant by any other Party, where such breach is a result of an action taken by that other Party or any Affiliate thereof pursuant to a request by the Party in accordance with this Section 2.19. (c) Each Party shall provide written notice to the other Parties of any proposed Pre-Closing Reorganization at least 15 Business Days prior to the date on which Parent commences solicitation of proxies for use at the Parent Stockholders’ Meeting, the 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 Closing Date. Upon receipt of such IRS notificationnotice, each Party shall, to the parties hereto shall collaborate reasonably and extent it determines in good faith in order to determine a possible alternative structure for the transactions contemplated hereby that the parties hereto determine, with 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 party hereto or any of their respective Affiliates; (b) causing the 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 hereby to any party hereto or any of their respective Affiliates; or (e) otherwise resulting in any substantial impediment to the consummation of the 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 this 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, 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 consummated as soon as practicable thereafter and proposed Pre-Closing Reorganization is advisable in accordance with Section 2.19(a), cooperate and use commercially reasonable efforts to prepare prior to the terms Closing Date all documentation necessary and do all such other acts and things as are reasonably necessary, including making amendments to this Agreement or the Plan of this AgreementArrangement, to give effect to such Pre-Closing Reorganization and to complete such Pre-Closing Reorganization as closely as reasonably practicable prior to the Closing Date.

Transaction Structure. If, In the event that (i) the consent set forth in Schedule 4(a)(iv) is not reasonably expected to be obtained (and in any event if such consent has not been obtained within five (5) business days prior to the date scheduled Closing Date set forth in Section 3(a)) and Buyer has not waived the condition set forth in Section 4(a)(iv) and (ii) Seller and Buyer are not able to reach an agreement on which Parent commences solicitation of proxies for use at the Parent Stockholders’ Meeting, the IRS notifies TDCC that the IRS will not issue one or more terms of the requested rulings, then, during Alternative Agreement despite the sixty (60) day period starting from the date use of such IRS notification, the parties hereto shall collaborate reasonably commercially reasonable best efforts and in good faith in order the negotiation thereof as required by Section 9(a)(iv), Buyer shall cooperate with Seller, at Seller’s request, to determine a possible alternative structure for the transactions contemplated hereby that the parties hereto determine, with 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 party hereto or any of their respective Affiliates; (b) causing the performance of the covenants amend 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 hereby to any party hereto or any of their respective Affiliates; or (e) otherwise resulting in any substantial impediment to the consummation of the 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 this Agreement and the other Transaction Documents accordingly agreements contemplated hereby, in such manner as reasonably requested by Seller to reflect implement an alternative structure for the change transfer of the Business to Buyer from that contemplated in transaction structure referenced 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 immediately preceding sentence. In furtherance generality of the foregoing, each 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 Date) 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, (B) require the 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 purchase of the shares of capital stock of Seller if the 338(h)(10) Alternative is selected, and (C) provide for the transfer of any 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 selected by Buyer and shall be reasonably acceptable to the Seller, provided that the parties hereto agree the Successor Alternative shall take all action be reasonably necessary acceptable to modify Seller in the ruling request to reflect the transactions as so modified and effectuate the event that no change in transaction structure contemplated by any Tax law that would reasonably be expected to have a material adverse impact on the Tax consequences to Seller or Alternative Seller (or their respective stockholders or equityholders, as applicable) of such alternative occurs on or before the Closing Date. Notwithstanding anything to the contrary in this Section 2.089(j), Buyer need not accept an alternative structure unless such alternative structure delivers substantially the same economic result (including asset step-up basis for tax purposes) and each party hereto shall use would not have a material adverse effect on Buyer or its reasonable best efforts to cause the transactions contemplated hereby, as so modified, to be consummated as soon as practicable thereafter and in accordance with the terms of this AgreementAffiliates.