Carve-Out Transactions. Contemporaneously with and subject to the Closing, the Partnership, LGC, or an Affiliate of LGC, and LGO shall enter into a series of transactions pursuant to which LGC, or an Affiliate of LGC, will acquire the wholesale fuel supply to 78 locations leased by the Partnership to LGO in Pennsylvania and New York, as more particularly identified on Schedule 5.18 (the “Carve Out Sites”), and the fuel supply by the Partnership to the Carve Out Sites will be terminated (collectively, the “Carve Out Transaction”) for an aggregate purchase price and on terms approved by the Conflicts Committee of the Board of Directors of Lehigh GP. To effectuate the Carve Out Transaction, LGC will, or will cause its Affiliates to, enter into the following agreements, in each case in substantially the form presented to, and agreed by, CST and GP Buyer prior to the Closing Date and approved by the Conflicts Committee of the Board of Directors of Lehigh GP:
(a) a fuel supply agreement between LGC or an Affiliate of LGC and LGO (the “Carve Out Fuel Supply Agreement”);
(b) an amendment to the existing fuel supply agreement between the Partnership and LGO with respect to the Carve Out Sites (the “Partnership Fuel Supply Amendment”);
(c) an amendment to any existing fuel supply agreement between the Partnership and each supplier with respect any delivery requirements arising from the Carve Out Sites that, without amendment, would continue to burden the Partnership or its Subsidiaries after the closing of the Carve Out Transaction, in each case providing for a gallon-for-gallon reduction of the Partnership’s fuel commitments relating to the release of the Carve Out Sites (the “Supplier Amendment”);
(d) a license agreement for use of the name “Unimart” with respect to the Carve Out Sites (the “License Agreement”);
(e) an assignment agreement or new agreement among Lehigh Gas Wholesale LLC, a wholesale counterparty and an Affiliate of LGC assigning the wholesale contracts for the Carve Out Sites, as well as the volume requirements and liquidated damages related thereto, to an Affiliate of LGC (the “Wholesale Assignment Agreement”); and
(a) one or more lease assignments (the “Lease Assignments” and together with the Carve Out Fuel Supply Agreement, the Partnership Fuel Supply Amendment, the Supplier Amendment, the License Agreement and the Wholesale Assignment Agreement, the “Carve Out Transaction Documents”).
Carve-Out Transactions. Prior to the Closing, Seller, Company and Purchaser, as applicable, shall take all such actions as are necessary and sufficient to effectuate the Carve-Out Transactions. It is understood and agreed that, pursuant to the BSI Transfer, Seller, Company, and Purchaser shall work in good faith to cause PNC Investment Company, LLC to become the ultimate beneficial owner of BSI’s U.S. retail brokerage accounts, and, as promptly as practicable following the date hereof, the Seller and the Purchaser shall engage with their respective clearing brokers and FINRA with respect to the proposed structuring and execution of the BSI Transfer, and, to the extent reasonably practicable, Seller and Purchaser shall implement any changes in respect of such proposed structuring as may be required or deemed advisable by such clearing brokers or FINRA. Seller, Company and the Purchaser shall undertake the matters contemplated by this Section 5.14 in a manner that does not, in any way prevent or impair in any material respect the consummation of the Transactions.
Carve-Out Transactions. The Carve-Out Transactions shall have been consummated.
Carve-Out Transactions. (a) Prior to the end of the Registration Study Milestone Period, Parent shall not, and shall not permit any of its Subsidiaries to, enter into a Carve-Out Transaction unless, prior to such Carve-Out Transaction, (x) Parent determines in good faith that, following such Carve-Out Transaction, the acquirer or other surviving entity, as applicable, is reasonably capable of making due and punctual payment of the Milestone Payments; and (y) the acquirer or other surviving entity, as applicable, expressly assumes in writing the due and punctual payment of such amounts if, as and when payable with respect to the CVRs and the performance of all of Parent’s and Purchaser’s obligations, duties and covenants under this Agreement, subject to the limitations expressly set forth herein.
(b) Upon the consummation of any Carve-Out Transaction in accordance with this Section 6.04, the acquirer or other surviving entity, as applicable, shall succeed to, and be substituted for, and may exercise every right and power of, Parent and Purchaser under this Agreement with the same effect as if such Person had been named as Parent and Purchaser herein, provided that Parent and Purchaser shall remain secondarily liable for the performance of the respective obligations under this Agreement of Parent and Purchaser.
Carve-Out Transactions. (a) Prior to the expiration of the Third Milestone Period, AZ Parent shall not, and shall not permit any of its Subsidiaries to, enter into a Carve-Out Transaction unless:
(i) (A) the Board of Directors determines in good faith that, following such Carve-Out Transaction, the acquirer or other surviving entity, as applicable, is reasonably capable of complying with the obligations of Parent hereunder, including (I) developing Epanova and the Rosuva FDC in accordance with the performance of Parent’s obligations under Section 4.03 and (II) making due and punctual payment of the Milestone Payments and (B) the acquirer or other surviving entity, as applicable, expressly assumes due and punctual payment of such amounts if, as and when payable with respect to the CVRs and the performance of all of Parent’s obligations, duties and covenants under this Agreement, subject to the limitations expressly set forth herein; and
(ii) upon the consummation of such Carve-Out Transaction, such acquirer or other surviving entity, as applicable, shall own or have a valid right to use all rights, property and assets (including Intellectual Property Rights and Material Contracts) necessary in connection with the development of Epanova and the Rosuva FDC in accordance with the performance of Parent’s obligations under Section 4.03.
(b) No later than five Business Days prior to the consummation of any Carve-Out Transaction, Parent shall deliver to the Rights Agent an Officer’s Certificate stating that such Carve-Out Transaction complies with Section 6.04(a) and that all conditions precedent herein provided for relating to such transaction have been complied with in all material respects.
(c) Upon any Carve-Out Transaction in accordance with this Section 6.04, the acquirer or other surviving entity, as applicable, shall succeed to, and be substituted for, and may exercise every right and power of, Parent under this Agreement with the same effect as if such Person had been named as Parent herein, and thereafter Parent shall be relieved of all obligations and covenants under this Agreement.
