Common use of Buyer Covenants Clause in Contracts

Buyer Covenants. Without the prior written consent of Seller (not to be unreasonably withheld or delayed), Buyer and its Affiliates shall not (a) cause any Acquired Entity to take any action on the Closing Date but after the Closing other than in the ordinary course of business (and other than any action contemplated by this Agreement), (b) make or change any Tax election that has a retroactive impact on any Taxes included in Retained Tax Liabilities, (c) amend any Tax Return for Income Taxes that is imposed on any Acquired Entity for a taxable period that ends on or before the Closing Date to the extent Seller would be liable for any additional Taxes as a result of such amendment, (d) amend any Tax Returns for a Straddle Tax Period with respect to any Tax item of an Acquired Entity that relates to any transactions in the Pre-Closing Reorganization, or (e) to the extent related to Income Taxes imposed on any Acquired Entity for a taxable period ending on or before the Closing Date, take any action or have any communication with any Taxing Authority (other than non-substantive communications); provided that Buyer shall (i) purchase the Purchased Entities using an entity that is properly treated as a corporation for U.S. federal income tax purposes and eligible to make an election under Section 338(g) of the Code, (ii) make (or cause to be made) at Seller’s expense an election under Section 338(g) of the Code with respect to each Acquired Entity classified as a corporation for U.S. federal Income Tax purposes based on election forms prepared by Seller (but any similar election for any other Tax purpose shall require the mutual written consent of the parties) and (iii) not take any actions or fail to take any actions that would render such Section 338(g) elections ineffective. If requested by Seller, Buyer shall enter into, or cause to be entered into, a binding agreement pursuant to U.S. Treasury Regulations Section 1.245A-5(e)(3)(i)(C)(2) in a timely manner to permit an election under U.S. Treasury Regulations Section 1.245A-5(e)(3) with respect to any Acquired Entity designated by Seller.

Buyer Covenants. Without the prior written consent of Seller (not to be unreasonably withheld or delayed), Buyer and its Affiliates covenants that it shall not cause or permit any Purchased Subsidiary or any Affiliate of Buyer (a) cause any Acquired Entity to take any action on the Closing Date but after the Closing other than in the ordinary course of business (and other than business, including the distribution of any action contemplated by dividend or the effectuation of any redemption that could give rise to any Tax liability or reduce any Tax Asset of Seller or a Seller Group or give rise to any loss of the Seller or a Seller Group under this Agreement), (b) make or change any Tax election that has a retroactive impact on any Taxes included in Retained Tax Liabilities, (c) amend any Tax Return for Income Taxes that is imposed on any Acquired Entity for a taxable period that ends on or before the Closing Date to the extent Seller would be liable for any additional Taxes as a result of such amendment, (d) amend any Tax Returns for a Straddle Tax Period with respect to any Tax item of an Acquired Entity that relates to any transactions in the Pre-Closing Reorganization, or (e) to the extent related to Income Taxes imposed on any Acquired Entity for a taxable period ending on or before the Closing Date, take any action or have any communication with any Taxing Authority (other than non-substantive communications); provided that Buyer shall (i) purchase the Purchased Entities using an entity that is properly treated as a corporation for U.S. federal income tax purposes and eligible to make an any election under Section 338(g) of the Code, (ii) make (or cause to be made) at Seller’s expense an deemed election under Section 338(g) of the Code or any comparable provision under Applicable Law with respect to any Purchased Subsidiary in connection with the purchases under this Agreement (other than the election described in Section 8.04) or (c) to make or change any Tax election, amend any Tax Return or take any Tax position on any Tax Return, take any action or enter into any transaction, merger or restructuring that results in any increased Tax liability or reduction of Tax Asset of the Seller or a Seller Group, including, for the avoidance of doubt, changing the Taxable period of any Purchased Foreign Subsidiary for any Tax year for foreign tax reporting purposes that includes the Closing Date. Without limiting the foregoing, with respect to any Purchased Foreign Subsidiary, for the period after Closing and through the close of each Acquired Entity classified such Purchased Foreign Subsidiary’s taxable year (as a corporation defined in the Code), the Buyer and its Affiliates shall not cause or permit such Purchased Foreign Subsidiaries to engage in (or to be treated, for U.S. federal Income Tax purposes based on election forms prepared by Seller income tax purposes, as engaging in) the following prohibited transactions: (but any similar election for any other Tax purpose shall require the mutual written consent i) Declare or pay a dividend or return of the partiescapital or otherwise make a distribution with respect to capital stock; (ii) and (iii) not take any actions or fail to take any actions that would render such Section 338(g) elections ineffective. If requested by Seller, Buyer shall enter into, Make or cause to be entered intomade any investment in U.S. property within the meaning of Section 956 of the Code; or (iii) Conduct business outside the ordinary course or engage in any transaction outside the ordinary course (in either case based upon the Purchased Foreign Subsidiary’s historic activities) if such business or activities are reasonably likely to generate earnings and profits of the Purchased Foreign Subsidiary (as determined under the Code) that is taxed at a rate materially lower than the statutory rate applicable to the Purchased Foreign Subsidiary in the applicable jurisdiction, or would otherwise adversely impact, the amount of the Seller or a binding agreement pursuant to U.S. Treasury Regulations Seller Group’s associated deemed-paid foreign taxes within the meaning of Section 1.245A-5(e)(3)(i)(C)(2) in 902 of the Code that are associated with the Section 1248 inclusion or the amount of the Seller or a timely manner to permit an election under U.S. Treasury Regulations Seller Group’s subpart F income within the meaning of Section 1.245A-5(e)(3) with respect to any Acquired Entity designated by Seller952 of the Code.

Buyer Covenants. Without (i) Buyer hereby covenants and agrees not to willfully, knowingly or intentionally cause, induce or encourage any client on the prior written consent Client List or any potential new client introduced, originated or cultivated by any of the Members or Key Persons and likely to result in a New Client Sale, not to purchase such services or supplies from the Business with the intent to avoid Buyer’s payment obligations under this ‎Section 6.03. Buyer acknowledges and agrees that a breach or threatened breach of this ‎Section 6.03 would give rise to irreparable harm to Seller, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Buyer or any of Buyer’s Affiliates of any such obligations, Seller shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). Buyer acknowledges and agrees that the restrictions contained in this ‎Section 6.03 are reasonable and necessary to protect the legitimate interests of Seller (not and constitute a material inducement to be unreasonably withheld or delayed), Buyer Seller to enter into this Agreement and its Affiliates shall not (a) cause any Acquired Entity to take any action on consummate the Closing Date but after the Closing other than in the ordinary course of business (and other than any action transactions contemplated by this Agreement). The covenants contained in this ‎Section 6.03 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, (b) make and any such invalidity or change unenforceability in any Tax election that has a retroactive impact on jurisdiction shall not invalidate or render unenforceable such covenant or provision in any Taxes included in Retained Tax Liabilities, (c) amend any Tax Return for Income Taxes that is imposed on any Acquired Entity for a taxable period that ends on or before the Closing Date to the extent Seller would be liable for any additional Taxes as a result of such amendment, (d) amend any Tax Returns for a Straddle Tax Period with respect to any Tax item of an Acquired Entity that relates to any transactions in the Pre-Closing Reorganization, or (e) to the extent related to Income Taxes imposed on any Acquired Entity for a taxable period ending on or before the Closing Date, take any action or have any communication with any Taxing Authority (other than non-substantive communications); provided that Buyer shall (i) purchase the Purchased Entities using an entity that is properly treated as a corporation for U.S. federal income tax purposes and eligible to make an election under Section 338(g) of the Code, jurisdiction. (ii) make (Buyer covenants and agrees that any Change of Control of the Business occurring at any time prior to the expiration of the Additional Payment Period shall be contingent upon the agreement of the new Controlling party to comply with the terms and conditions of this Section 2.06 until the expiration of the Additional Payment Period. Buyer shall not be relieved of their obligations under this Section 2.06 in the event of such Change in Control. In addition to the other rights and remedies of Seller provided herein, at law or cause to be madein equity, any breach of this Section 2.06(ii) at Seller’s expense an election shall immediately relieve the Key Persons of their obligations under Section 338(g) of the Code with respect to each Acquired Entity classified as a corporation for U.S. federal Income Tax purposes based on election forms prepared by Seller (but any similar election for any other Tax purpose shall require the mutual written consent of the parties) and (iii) not take any actions or fail to take any actions that would render such Section 338(g) elections ineffective. If requested by Seller, Buyer shall enter into, or cause to be entered into, a binding agreement pursuant to U.S. Treasury Regulations Section 1.245A-5(e)(3)(i)(C)(2) in a timely manner to permit an election under U.S. Treasury Regulations Section 1.245A-5(e)(3) with respect to any Acquired Entity designated by Seller6.03.

Buyer Covenants. Without the prior written consent of Seller (not to be unreasonably withheld or delayed)Except as required by Law, Buyer and its Affiliates covenants that it shall not nor shall it cause or permit any Group Company or any Affiliate of Buyer to (ai) cause any Acquired Entity to take any action on the Closing Date but after the Closing other than in outside the ordinary course of business (and other than any action that is not otherwise specifically contemplated by this Agreement), (bii) make or change any Tax election (including any election under Section 338 of the Code) that has a retroactive impact on any Taxes included in Retained Tax Liabilities, (c) amend any Tax Return for Income Taxes that is imposed on any Acquired Entity for a taxable period that ends on or before the Closing Date to the extent Seller would be liable effective for any additional Taxes as a result of such amendment, (d) amend any Tax Returns for a Straddle Tax Period with respect to any Tax item of an Acquired Entity that relates to any transactions in the Pre-Closing Reorganization, Tax Period or (e) to the extent related to Income Taxes imposed on portions of any Acquired Entity for a taxable period Straddle Tax Periods ending on or before the Closing Date, take any action (iii) except for Tax Returns filed in accordance with Section 6.01(a), amend, file, refile, revoke or have any communication with any Taxing Authority (other than non-substantive communications); provided that Buyer shall (i) purchase the Purchased Entities using an entity that is properly treated as a corporation for U.S. federal income tax purposes and eligible to make an election under Section 338(g) of the Code, (ii) make otherwise modify (or cause to be madeamended, filed, refiled, revoked or otherwise modified) at Seller’s expense an election under Section 338(g) any Tax Return of the Code with respect Group Companies relating to each Acquired Entity classified as a corporation for U.S. federal Income any Pre-Closing Tax purposes based Period or the portion of any Straddle Tax Periods ending on election forms prepared by Seller or before the Closing Date, (but any similar election for any other Tax purpose shall require the mutual written consent of the partiesiv) and file (iii) not take any actions or fail to take any actions that would render such Section 338(g) elections ineffective. If requested by Seller, Buyer shall enter into, or cause to be entered intofiled) a ruling request with any Taxing Authority that relates to the Taxes or Tax Returns of the Group Companies for any Pre-Closing Tax Period or the portion of any Straddle Tax Periods ending on or before the Closing Date, a binding agreement pursuant (v) initiate (or cause to U.S. Treasury Regulations Section 1.245A-5(e)(3)(i)(C)(2be initiated) in a timely manner any voluntary disclosure or similar proceedings with any Taxing Authority regarding any Tax or Tax Return of the Group Companies for any Pre-Closing Tax Period of the portion of any Straddle Tax Periods ending on or before the Closing Date, or (vi) take any action (or cause to permit an election under U.S. Treasury Regulations Section 1.245A-5(e)(3be taken any action) to extend the applicable statute of limitations with respect to any Acquired Entity designated by SellerTax Return of the Group Companies for a Pre-Closing Tax Period or any Straddle Tax Period, in each case, without the prior written consent of Seller (such consent not to be unreasonably withheld, conditioned or delayed); provided that, notwithstanding anything to the contrary in this Agreement, if any action described in clauses (i) through (vi) above could result in any non-de minimis Liabilities to Seller and/or its Affiliates (including a non-de minimis indemnity obligation under Article IX) such Liabilities shall constitute a reasonable basis for the withholding of consent; provided, further, that Seller may withhold consent to any action described in clauses (i) through (vi) above arising out of or relating to the Combined Tax Position with respect to Pre-Closing Tax Periods or Straddle Tax Periods (except to the extent such action is taken in accordance with Section 6.01 or Section 6.05).

Buyer Covenants. Without the prior written consent of Seller (not to be unreasonably withheld or delayed), Buyer and its Affiliates shall not (a) Except as required by Law, Buyer covenants that it shall not nor shall it cause or permit any Acquired Entity Group Company or any Affiliate of Buyer to (i) take any action on the Closing Date but after the Closing other than in outside the ordinary course of business (and other than any action that is not otherwise specifically contemplated by this Agreement), (bii) make or change any Tax election (including any election under Section 338 of the Code) that has a retroactive impact on any Taxes included in Retained Tax Liabilities, (c) amend any Tax Return for Income Taxes that is imposed on any Acquired Entity for a taxable period that ends on or before the Closing Date to the extent Seller would be liable effective for any additional Taxes as a result of such amendment, (d) amend any Tax Returns for a Straddle Tax Period with respect to any Tax item of an Acquired Entity that relates to any transactions in the Pre-Closing Reorganization, Tax Period or (e) to the extent related to Income Taxes imposed on portions of any Acquired Entity for a taxable period Straddle Tax Periods ending on or before the Closing Date, take any action (iii) except for Tax Returns filed in accordance with Section 6.01(a), amend, file, refile, revoke or have any communication with any Taxing Authority (other than non-substantive communications); provided that Buyer shall (i) purchase the Purchased Entities using an entity that is properly treated as a corporation for U.S. federal income tax purposes and eligible to make an election under Section 338(g) of the Code, (ii) make otherwise modify (or cause to be madeamended, filed, refiled, revoked or otherwise modified) at Seller’s expense an election under Section 338(g) any Tax Return of the Code with respect Group Companies relating to each Acquired Entity classified as a corporation for U.S. federal Income any Pre-Closing Tax purposes based Period or the portion of any Straddle Tax Periods ending on election forms prepared by Seller or before the Closing Date, (but any similar election for any other Tax purpose shall require the mutual written consent of the partiesiv) and file (iii) not take any actions or fail to take any actions that would render such Section 338(g) elections ineffective. If requested by Seller, Buyer shall enter into, or cause to be entered intofiled) a ruling request with any Taxing Authority that relates to the Taxes or Tax Returns of the Group Companies for any Pre-Closing Tax Period or the portion of any Straddle Tax Periods ending on or before the Closing Date, (v) initiate (or cause to be initiated) any voluntary disclosure or similar proceedings with any Taxing Authority regarding any Tax or Tax Return of the Group Companies for any Pre-Closing Tax Period of the portion of any Straddle Tax Periods ending on or before the Closing Date, or (vi) take any action (or cause to be taken any action) to extend the applicable statute of limitations with respect to any Tax Return of the Group Companies for a binding agreement pursuant Pre-Closing Tax Period or any Straddle Tax Period, in each case, without the prior written consent of Seller (such consent not to U.S. Treasury Regulations be unreasonably withheld, conditioned or delayed); provided that, notwithstanding anything to the contrary in this Agreement, if any action described in clauses (i) through (vi) above could result in any non-de minimis Liabilities to Seller and/or its Affiliates (including a non-de minimis indemnity obligation under Article IX) such Liabilities shall constitute a reasonable basis for the withholding of consent; provided, further, that Seller may withhold consent to any action described in clauses (i) through (vi) above arising out of or relating to the Combined Tax Position with respect to Pre-Closing Tax Periods or Straddle Tax Periods (except to the extent such action is taken in accordance with Section 1.245A-5(e)(3)(i)(C)(26.01 or Section 6.05). (b) Nothing in this Section 6.03 shall prohibit Buyer from taking any of the actions described in this Section 6.03 with respect to a timely manner to permit an election under U.S. Treasury Regulations Tax period beginning following the Closing Date (which may include filing on a basis inconsistent with the Combined Tax Position for any such period); provided that until the termination of the indemnities described in Section 1.245A-5(e)(39.02(a)(i) and Section 9.02(a)(iv) with respect to Taxes other than Income Taxes (as extended to resolve any Acquired Entity designated by Sellerpending claims thereunder), (i) Buyer shall deliver to Seller the initial Tax Return (including any registration form) for each Group Company that is filed with respect to a Tax period beginning following the Closing on a basis inconsistent with the Combined Tax Position reasonably in advance of the date such Tax Return is due and (ii) Buyer shall incorporate any reasonable comments received from Seller in writing reasonably thereafter (provided that all such comments must be received prior to the due date of such Tax Return) (but for the avoidance of doubt shall not be required to incorporate any comments that would have a non-de minimis adverse effect on Buyer or its Affiliates (including the Group Companies following the Closing)).

Buyer Covenants. Without the prior written consent of Seller (not to be unreasonably withheld or delayed), Buyer and its Affiliates shall not (a) Buyer covenants that it shall not cause or permit any Acquired Entity Purchased Subsidiary or any Affiliate of Buyer to (i) take any action on the Closing Date but after the Closing other than in the ordinary course of business business, including the distribution of any dividend or the effectuation of any redemption, that could give rise to any Tax liability or reduce any Tax Asset of Seller or a Seller Group or give rise to any loss of Seller or a Seller Group under this Agreement or (and other than ii) (A) amend any action contemplated Tax Return of any of the Purchased Foreign Subsidiaries with respect to any Pre-Closing Tax Period, (B) except as expressly required or permitted by this Agreement), (b) make or change any Tax election that has would apply to a retroactive impact on any Taxes included in Retained Tax Liabilities, (c) amend any Tax Return for Income Taxes that is imposed on any Acquired Entity for a taxable period that ends on or before the Closing Date to the extent Seller would be liable for any additional Taxes as a result of such amendment, (d) amend any Tax Returns for a Straddle Tax Period with respect to any Tax item of an Acquired Entity that relates to any transactions in the Pre-Closing Reorganization, Tax Period of any Purchased Foreign Subsidiary or (eC) to change the extent related to Income Taxes imposed on Tax period of any Acquired Entity Purchased Foreign Subsidiary for a taxable period ending on any Tax year for U.S. or before foreign tax reporting purposes that includes the Closing Date, take any action or have any communication with any Taxing Authority in each case without the prior written consent of Seller. (other than non-substantive communications); provided that b) Buyer shall (i) purchase the Purchased Entities using an entity that is properly treated as a corporation for U.S. federal income tax purposes and eligible to make an election under Section 338(g) of the Code, (ii) make take (or shall cause to be madetaken) at Seller’s expense all steps necessary in order to effectuate an election under Section 338(g) of the Code (and any corresponding elections under state or local) with respect to each Acquired Entity classified as the purchase and sale of the shares of the Purchased Mexican Subsidiaries. Buyer represents, warrants, covenants and agrees that (i) the purchaser (or regarded parent of the purchaser, if such purchaser is a corporation disregarded entity for U.S. federal Income Tax purposes based income tax purposes) of each Purchased Mexican Subsidiary is, and that Buyer will take all actions necessary to ensure that on election forms prepared by Seller the Closing Date such purchaser (but any similar election for any other Tax purpose shall require the mutual written consent or regarded parent of the partiespurchaser, if such purchaser is a disregarded entity for U.S. federal income tax purposes) will be, eligible to make a Section 338(g) election with respect to the shares of the Purchased Mexican Subsidiaries and (iiiii) not take neither Buyer nor such purchaser (or regarded parent of the purchaser, if such purchaser is a disregarded entity for U.S. federal income tax purposes) has any actions plan or fail intention to take take, and Buyer will, and will cause such purchaser (or regarded parent of the purchaser, if such purchaser is a disregarded entity for U.S. federal income tax purposes) to, refrain from taking, any actions that would render reasonably be expected to cause such purchaser (or regarded parent of the purchaser, if such purchaser is a disregarded entity for U.S. federal income tax purposes) to fail to qualify as a purchasing corporation within the meaning of Section 338(g) elections ineffective. If requested by Seller, Buyer shall enter into, or cause to be entered into, a binding agreement pursuant to U.S. Treasury Regulations Section 1.245A-5(e)(3)(i)(C)(2) in a timely manner to permit an election under U.S. Treasury Regulations Section 1.245A-5(e)(3) with respect to any Acquired Entity designated by Seller338 of the Code.

Buyer Covenants. Without the prior written consent of Seller (not to be unreasonably withheld or delayed), Buyer and its Affiliates shall not (a) cause any Acquired Entity to take any action on the Closing Date but after the Closing other than in the ordinary course of business (and other than any action contemplated by this Agreement), (b) make or change any Tax election that has a retroactive impact on any Taxes included in Retained Tax Liabilities, (c) amend any Tax Return for Income Taxes that is imposed on any Acquired Entity for a taxable period that ends on or before the Closing Date to the extent Seller would be liable for any additional Taxes as a result of such amendment, (d) amend any Tax Returns for a Straddle Tax Period with respect to any Tax item of an Acquired Entity that relates to any transactions in the Pre-Closing Reorganization, or (e) to the extent related to Income Taxes imposed on any Acquired Entity for a taxable period ending on or before the Closing Date, take any action or have any communication with any Taxing Authority (other than non-substantive communications); provided that Buyer shall (i) purchase the Purchased Entities using an entity that is properly treated as a corporation for U.S. federal income tax purposes and eligible to make an election under Section 338(g) of the Code, (ii) make (or cause to be made) at Seller’s expense an election under Section 338(g) of the Code with respect to each Acquired Entity classified as a corporation for U.S. federal Income Tax purposes based on election forms prepared by Seller (but any similar election for any other Tax purpose shall require the mutual written consent of the parties) and (iii) not take any actions or fail to take any actions that would render such Section 338(g) elections ineffective. If requested by Seller, Buyer shall enter intouse its commercially reasonable efforts to take, or cause to be entered intotaken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange financing as promptly as reasonably practicable on terms and conditions no less favorable to Buyer than those described in the Debt Commitment Letter (the “Debt Financing”), including using its commercially reasonable efforts to (i) negotiate definitive agreements with respect thereto on terms and conditions set forth therein and (ii) satisfy all conditions applicable to Buyer in such definitive agreements that are reasonably within its control. (ii) Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter without the Company’s prior written consent if such amendment, modification or waiver would reasonably be expected to (A) reduce the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and original issue discount contemplated by the Debt Commitment Letter on the date hereof, other than through the exercise of any “market flex” provisions contained or referenced in the Debt Commitment Letter) to a binding level that would be insufficient to refinance the outstanding debt of the Buyer required in connection with the Merger or as otherwise contemplated by this Agreement and the fees and expenses in connection therewith, (B) impose any new or additional material conditions precedent to the Debt Financing, (C) adversely impact the conditionality, enforceability or availability of the Debt Financing in any material way or (D) prevent, impair or delay in any material way the consummation of the Debt Financing; provided, however, that Buyer may amend or restate the Debt Commitment Letter to (1) add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Debt Commitment Letter as of the date hereof (2) implement or exercise any “market flex” provisions contained or referenced in the Debt Commitment Letter as of the date hereof and (3) otherwise amend, modify or restate the Debt Commitment Letter in any manner not inconsistent with this sentence. Buyer shall promptly deliver to the Company copies of any such amendment, modification or waiver. (iii) Buyer shall provide the Company with prompt written notice (and, in any event, within two business days) of (A) any termination, repudiation, cancellation or expiration of the Debt Commitment Letter or any definitive agreement pursuant related to U.S. Treasury Regulations Section 1.245A-5(e)(3)(i)(C)(2the Debt Financing, (B) in any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any material breach or default) under the Debt Commitment Letter or any definitive document related to the Debt Financing by any party to the Debt Commitment Letter or such definitive document related to the Debt Financing, (C) the receipt of any written notice or other written communication from a timely manner to permit an election under U.S. Treasury Regulations Section 1.245A-5(e)(3) financing source for the Debt Financing with respect to any Acquired Entity designated actual, threatened or potential material breach, default, termination or repudiation by Sellerany party to the Debt Commitment Letter or any definitive document related to the Debt Financing of any provisions of the Debt Commitment Letter or any definitive document related to the Debt Financing; and (D) of the occurrence of an event or development that would reasonably be expected to adversely impact the ability of Buyer to obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter or the definitive documents related to the Debt Financing, except with respect to any portion of the Debt Financing that would not cause the Debt Financing to be insufficient to refinance the outstanding debt of the Buyer required in connection with the Merger or as otherwise contemplated by this Agreement and the fees and expenses in connection therewith. (iv) Buyer shall use its commercially reasonable efforts to (A) maintain in full force and effect the Debt Commitment Letter until the funding of the Debt Financing at or prior to Closing and negotiate and enter into definitive agreements with respect to the Debt Commitment Letter on the terms and conditions contained or referenced in the Debt Commitment Letter (which may reflect “market flex” provisions), (B) satisfy on a timely basis all conditions applicable to it in such definitive agreements that are within its control (or, if deemed advisable by Buyer, seek the waiver of such conditions), (C) upon satisfaction or waiver of such conditions, consummate the Debt Financing and cause the lenders and other Persons committing to fund the Debt Financing to fund such Debt Financing at the Closing, (D) enforce its rights under the Debt Commitment Letter and (E) otherwise comply with its obligations under the Debt Commitment Letter. Buyer shall not release or consent to the termination of obligations of the financing sources party to the Debt Commitment Letter to the extent that such release or termination would reduce the Debt Financing to a level that would be insufficient to refinance the outstanding debt of the Buyer required in connection with the Merger or as otherwise contemplated by this Agreement and the fees and expenses in connection therewith. (v) In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, (A) Buyer shall promptly notify the Company and (B) Buyer shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange to obtain any such portion from the same or alternative sources in an amount sufficient to enable Buyer to refinance any outstanding Indebtedness of the Company as contemplated by this Agreement and the Debt Commitment Letter and any fees and expenses in connection thereof on terms and conditions no less favorable to Buyer (as determined in the reasonable judgment of Buyer) as promptly as reasonably practicable following the occurrence of such event (the “Alternative Debt Financing”); provided that such Alternative Debt Financing shall not (1) include any conditions to funding of the Debt Financing that are not contained in the Debt Commitment Letter or (2) reasonably be expected to prevent, impair or delay in any material way the consummation of the Merger or the other transactions contemplated by the Merger Agreement. Buyer shall promptly provide a true, correct and complete copy of each alternative financing commitment in respect of such Alternative Debt Financing (“New Debt Commitment Letter”) to the Company. (vi) In the event any New Debt Commitment Letter is obtained, (A) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as such term is modified pursuant to the immediately succeeding clause (B), and (B) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter to the extent not superseded by a New Debt Commitment Letter at the time in question, and any New Debt Commitment Letters to the extent then in effect. The parties agree that Buyer’s execution of any amendment to the Debt Commitment Letter or a New Debt Commitment Letter shall not materially expand the scope of the assistance required under Section 5.09(b) of this Agreement as compared to the assistance that would be required in connection with the Debt Commitment Letter in effect on the date of this Agreement and the related Debt Financing. (vii) Upon request of the Company, Buyer shall keep the Company reasonably informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Debt Financing or any Alternative Debt Financing.

Buyer Covenants. Without (i) Notwithstanding anything to the prior written consent contrary herein, Buyer shall use its commercially reasonable efforts to obtain the HSR Approval as soon as reasonably practicable but, in any event, no later than the Outside Date. For purposes of Seller (not the foregoing, “commercially reasonable efforts” include, subject to be unreasonably withheld or delayedSection 8.5(g), proposing, negotiating, agreeing to and effecting, by undertaking, consent agreement, hold separate agreement or otherwise: (A) the sale, divestiture, licensing or disposition of all or any part of the Conveyed Entity Assets or the assets of Buyer Parent or its Subsidiaries; (B) the termination or amendment of any existing contractual rights, relationships and its Affiliates shall not obligations, or entry into or amendment of any licensing arrangements of NewCo, the Conveyed Entity Assets, Buyer Parent or their respective Subsidiaries; (aC) cause any Acquired Entity to take the taking of any action on that, after consummation of the Closing Date but after the Closing other than in the ordinary course of business (and other than any action transactions contemplated by this Agreement), would limit the freedom of action of, or impose any other requirement on the operation of the Conveyed Entities, Buyer Parent or its Subsidiaries, the Conveyed Entity Assets or their respective businesses; and (bD) make or change any Tax election that has a retroactive impact on any Taxes included in Retained Tax Liabilities, (c) amend any Tax Return for Income Taxes that is imposed on any Acquired Entity for a taxable period that ends on or before the Closing Date to the extent Seller would be liable for any additional Taxes as a result of such amendment, (d) amend any Tax Returns for a Straddle Tax Period other remedial action whatsoever with respect to any Tax item of an Acquired NewCo, the Conveyed Entity that relates to any transactions Assets or their respective businesses (the actions or agreements set forth in the Pre-Closing Reorganizationforegoing clauses (A) through (D), “Remedy Undertakings”) that may be necessary in order to obtain the HSR Approval no later than the Outside Date, provided that any such action is conditioned upon the completion of the Transactions. Buyer shall further use its commercially reasonable efforts to avoid, oppose or seek to have lifted or rescinded, any application for, or any resulting injunction or restraining or other order seeking to stop, or that otherwise adversely affects its ability to consummate, the Transactions; provided, further, that Buyer may take any reasonable action to resist or reduce the scope of a Remedy Undertaking that has been proposed by any such Government Entity so long as it does not delay the consummation of the Transactions to a date later than three (e3) Business Days prior to the extent related to Income Taxes imposed on any Acquired Entity for a taxable period ending on or before the Closing Outside Date, . (ii) Buyer will not take any action that would reasonably be expected to have the effect of materially delaying, impairing or have any communication with any Taxing Authority (other impeding the receipt of the HSR Approval later than non-substantive communications); provided that the Outside Date. Without limiting the generality of the forgoing, Buyer shall not, and shall not permit any of the Subsidiaries of Buyer Parent to, acquire or agree to acquire (by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or in any other manner), any Person or line of business or portion thereof, or otherwise acquire or agree to acquire any assets, if the entry into a definitive agreement relating to, or the consummation of, such acquisition would reasonably be expected to (i) purchase impose any material delay in obtaining, or increase the Purchased Entities using an entity that is properly treated as a corporation for U.S. federal income tax purposes and eligible risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Government Entity necessary to make an election consummate the Transactions or the expiration or termination of any applicable waiting period under Section 338(g) of the CodeHSR Act or any other applicable antitrust Laws, (ii) make (increase the risk of any Government Entity entering an order prohibiting or cause to be made) at Seller’s expense an election under Section 338(g) delaying the consummation of the Code with respect to each Acquired Entity classified as a corporation for U.S. federal Income Tax purposes based on election forms prepared by Seller (but any similar election for any other Tax purpose shall require the mutual written consent of the parties) and Transactions, or (iii) not take any actions or fail to take any actions that would render such Section 338(g) elections ineffective. If requested by Seller, Buyer shall enter into, or cause to be entered into, a binding agreement pursuant to U.S. Treasury Regulations Section 1.245A-5(e)(3)(i)(C)(2) in a timely manner to permit an election under U.S. Treasury Regulations Section 1.245A-5(e)(3) with respect to any Acquired Entity designated by Sellermaterially delay the consummation of the Transactions.