Closing Actions. At the Closing (to the extent not completed prior to the Closing Date): (a) first, (i) GE shall, and shall cause the other NBCU Transferors to, transfer, directly or indirectly, the Contributed NBCU Assets to NBCU, (ii) NBCU shall assume the Assumed NBCU Liabilities, (iii) GE shall, or shall cause a Subsidiary of GE (other than a NBCU Entity) to, assume all Excluded NBCU Liabilities that are Liabilities of a NBCU Entity and (iv) NBCU shall pay to GE the fair value of the capital stock of the Subsidiary of GE identified on Section 2.08(d) of the NBCU Disclosure Letter (it being understood that all of such capital stock shall be included in the Contributed NBCU Assets); (b) second, (i) Navy Holdco 1 shall, and GE shall cause Navy Holdco 1 to, contribute to Navy Holdco 2 all of the outstanding NBCU Shares, free and clear of all Liens and (ii) GE and NBCU shall, and shall cause their respective applicable Subsidiaries to, enter into the ISDA Novation Agreements, which shall be deemed effective at the effective time of this Section 2.08(b); (c) third, (i) Comcast Navy Acquisition, LLC and Navy Holdco 2 shall, and Navy Holdco 2 shall cause the Newco Interest Holders to, enter into the Escrow Agreement, (ii) Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to the Comcast/NBCU Purchase Price (calculated for this purpose based on the estimated amounts provided pursuant to Section 2.06(b)) into escrow pursuant to the terms of the Escrow Agreement, (iii) if Estimated Combined EBITDA is less than the Target Combined EBITDA, then Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to 3.5 times the lesser of (x) the amount of the shortfall, if such shortfall exists, of Estimated Comcast EBITDA as compared to Target Comcast EBITDA, or (y) the amount of the shortfall of Estimated Combined EBITDA as compared to Target Combined EBITDA into escrow pursuant to the terms of the Escrow Agreement (any such amount to be deposited into escrow pursuant to this clause (iii), the “Shortfall Amount”) and (iv) Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to the amount of the 2008 Contributed Comcast Businesses EBITDA Adjustment, if any, into escrow pursuant to the terms of the Escrow Agreement; (d) fourth, NBCU shall, and GE shall cause NBCU to, complete the NBCU Conversion in accordance with Section 2.07; (e) fifth, NBCU shall distribute its interests in the Holding Companies and New A&E to Navy Holdco 2; (f) sixth, Navy Holdco 2 and the Newco Interest Holders shall contribute the equity interests of NBCU and the New LLCs to Newco, free and clear of all Liens, in exchange for Newco Membership Interests; (g) seventh, Newco shall contribute the equity interests of the New LLCs to NBCU; (h) eighth, the parties hereto shall, and shall cause their respective applicable Subsidiaries to, deliver duly executed counterparts to the other Transaction Agreements referenced in Section 6.12; (i) ninth, Comcast shall, and shall cause the other Comcast Transferors to, contribute or transfer, as applicable, the Contributed Comcast Assets to Newco or, at the direction of Newco, NBCU and, in consideration therefor, Newco shall issue to Comcast Navy Contribution, LLC, free and clear of all Liens, Newco Membership Interests representing 25.75% of the outstanding Newco Membership Interests (determined after giving effect to such issuance) and, to the extent Contributed Comcast Equity Interests are certificated, Comcast Navy Contribution, LLC shall deliver or cause to be delivered to Newco or NBCU, as applicable, certificates evidencing such Contributed Comcast Equity Interests, duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the Contributed Comcast Equity Interests, and to the extent such Contributed Comcast Equity Interests are not certificated, Comcast Navy Contribution, LLC shall deliver or cause to be delivered to Newco or NBCU, as applicable, other customary evidence of ownership; and Newco or NBCU, as applicable, shall assume the Assumed Comcast Liabilities and Comcast Navy Contribution, LLC shall, or shall cause a Subsidiary of Comcast (other than a Contributed Comcast Subsidiary), to assume all Excluded Comcast Liabilities that are Liabilities of a Contributed Comcast Subsidiary; (j) tenth, (i) the Newco Interest Holders shall, and GE shall cause the Newco Interest Holders to, deliver to Comcast Navy Acquisition, LLC, free and clear of all Liens, all of the Newco Membership Interests owned by the Newco Interest Holders and (ii) Navy Holdco 2 shall, and GE shall cause Navy Holdco 2 to, deliver to Comcast Navy Acquisition, LLC, free and clear of all Liens, Newco Membership Interests which, when aggregated with the interests delivered pursuant to clause (i), will constitute 25.25% of the outstanding Newco Membership Interests, in consideration of the payment by Comcast Navy Acquisition, LLC of the Comcast/NBCU Purchase Price; (k) eleventh, if Estimated Combined EBITDA is less than the Target Combined EBITDA then NBCU shall issue to Comcast Navy Acquisition, LLC or such Affiliate of Comcast Navy Acquisition, LLC a note in the form of Exhibit F-2 with a principal amount equal to the Shortfall Amount (the “Comcast Note”); (l) twelfth, the Escrow Agent shall release from escrow into the accounts of Navy Holdco 2 and the Newco Interest Holders designated in the Escrow Agreement the Comcast/NBCU Purchase Price, the Shortfall Amount, if any, and the amount of the 2008 Contributed Comcast Businesses EBITDA Adjustment, if any, in each case, pursuant to the terms of the Escrow Agreement; (m) thirteenth, the parties hereto shall, and shall cause their respective applicable Subsidiaries to, execute and deliver such deeds, bills of sale, endorsements, consents, assignments, assumptions and other good and sufficient documents or instruments as such parties and their respective counsel shall deem reasonably necessary in connection with the actions referred to in Sections 2.08(a) through (l); and (n) finally, each NBCU Transferor and Comcast Transferor that will convey a “United States real property interest” (as defined under Section 897 of the Code) shall deliver to Newco a certificate in accordance with Treasury Regulations Section 1.1445-2(b)(2) to the effect that the applicable transferor is not a “foreign person,” and each of Navy Holdco 2 and the Newco Interest Holders shall deliver to Comcast Navy Acquisition, LLC a certificate in accordance with Treasury Regulations Section 1.1445-2(b)(2) to the effect that the applicable transferor is not a “foreign person.” Newco hereby directs Comcast and the other Comcast Transferors (including Comcast Navy Contribution, LLC) to transfer the Contributed Comcast Assets to NBCU on its behalf and NBCU to assume the Assumed Comcast Liabilities on its behalf, in each case, as described in Section 2.08(i) and subject to the terms and conditions of this Agreement.
Appears in 1 contract
Samples: Master Agreement (Comcast Corp)
Closing Actions. At the Closing (to the extent not completed prior to the Closing Date):Closing:
(a) first, The Purchaser shall:
(i) GE shall, consummate the conversion of all issued and outstanding Class B Ordinary Shares held by the Purchaser Sponsor into Class A Ordinary Shares in accordance with the terms of the Purchaser Constitutional Documents; provided that the number of Class A Ordinary Shares to be issued in such conversion shall cause the other NBCU Transferors to, transfer, directly or indirectly, the Contributed NBCU Assets to NBCU, not exceed 7,500,000;
(ii) NBCU shall assume pay to the Assumed NBCU LiabilitiesSellers, by wire transfer of immediately available funds to the account(s) specified in writing by the Sellers delivered to the Purchaser at least two (2) Business Days prior to the Closing, an aggregate amount equal to (A) the Base Cash Consideration, plus (B) the estimated Adjustment Amount set forth in the Estimated Adjustment Statement, if positive, or less (C) the absolute value of the estimated Adjustment Amount set forth in the Estimated Adjustment Statement, if negative;
(iii) GE shall, or shall cause a Subsidiary of GE (other than a NBCU EntityA) to, assume all Excluded NBCU Liabilities that are Liabilities of a NBCU Entity and (iv) NBCU shall pay issue to GE the fair value of accounts designated in writing prior to Closing by the capital stock of Sellers the Subsidiary of GE identified on Section 2.08(d) of the NBCU Disclosure Letter (it being understood that all of such capital stock shall be included in the Contributed NBCU Assets);
(b) second, (i) Navy Holdco 1 shall, and GE shall cause Navy Holdco 1 to, contribute to Navy Holdco 2 all of the outstanding NBCU SharesPurchaser Ordinary Shares Consideration, free and clear of all Liens (except Liens consisting of any restrictions on transfer generally arising under the applicable securities Laws), and (B) make appropriate book entries by updating the register of members of the Purchaser (in the names designated by the Sellers in writing prior to Closing) evidencing the issuance to the Sellers of the Purchaser Ordinary Shares Consideration; provided, however, in no instance shall the Purchaser have any obligation to issue any of the Purchaser Ordinary Shares Consideration to or in the name of any Person not signatory hereto;
(iv) deliver to the Sellers a counterpart to the Investors Agreement, duly executed by the Purchaser;
(v) deliver to the Sellers the certificate contemplated by Section 8.3(d);
(vi) deliver a certificate from an authorized officer of the Purchaser certifying that (i) the Purchaser has made all necessary arrangements with the Trustee to cause the Trustee to disburse all of the funds contained in the Trust Account available to the Purchaser for payment of the Aggregate Cash Obligations and (ii) GE there is no Action pending or threatened by any Person (not including the Sellers and NBCU shall, and shall cause their respective applicable Subsidiaries to, enter into Affiliates) with respect to or against the ISDA Novation Agreements, which shall Trust Account that would reasonably be deemed effective at the effective time of this Section 2.08(b)expected to have a Purchaser Material Adverse Effect;
(cvii) third, (i) Comcast Navy Acquisition, LLC and Navy Holdco 2 shall, and Navy Holdco 2 shall cause the Newco Interest Holders to, enter into the Escrow Agreement, (ii) Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal deliver to the Comcast/NBCU Purchase Price Sellers a counterpart of the Bxxx of Sale and Assignment, duly executed by the Purchaser; and
(calculated for this purpose based on the estimated amounts provided pursuant to Section 2.06(b)viii) into escrow pursuant deliver to the terms Sellers a counterpart of the Escrow Agreement, (iii) if Estimated Combined EBITDA is less than duly executed by the Target Combined EBITDA, then Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to 3.5 times the lesser of (x) the amount of the shortfall, if such shortfall exists, of Estimated Comcast EBITDA as compared to Target Comcast EBITDA, or (y) the amount of the shortfall of Estimated Combined EBITDA as compared to Target Combined EBITDA into escrow pursuant to the terms of the Escrow Agreement (any such amount to be deposited into escrow pursuant to this clause (iii), the “Shortfall Amount”) and (iv) Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to the amount of the 2008 Contributed Comcast Businesses EBITDA Adjustment, if any, into escrow pursuant to the terms of the Escrow Agreement;Purchaser.
(db) fourth, NBCU The Sellers shall, and GE shall cause NBCU to, complete the NBCU Conversion in accordance with Section 2.07;
(e) fifth, NBCU shall distribute its interests in the Holding Companies and New A&E to Navy Holdco 2;
(f) sixth, Navy Holdco 2 and the Newco Interest Holders shall contribute the equity interests of NBCU and the New LLCs to Newco, free and clear of all Liens, in exchange for Newco Membership Interests;
(g) seventh, Newco shall contribute the equity interests of the New LLCs to NBCU;
(h) eighth, the parties hereto shall, and shall cause their respective applicable Subsidiaries to, deliver duly executed counterparts to the other Transaction Agreements referenced in Section 6.12;:
(i) ninthdeliver, Comcast shallor cause to be delivered, and shall cause to the other Comcast Transferors to, contribute or transfer, as applicable, the Contributed Comcast Assets to Newco or, at the direction of Newco, NBCU and, in consideration therefor, Newco shall issue to Comcast Navy Contribution, LLC, free and clear of all Liens, Newco Membership Interests representing 25.75% of the outstanding Newco Membership Interests (determined after giving effect to such issuance) andPurchaser, to the extent Contributed Comcast that the Transferred Equity Interests are certificated, Comcast Navy Contribution, LLC shall deliver or cause to be delivered to Newco or NBCU, as applicable, certificates evidencing such Contributed Comcast Transferred Equity Interests, duly endorsed in blank or accompanied by stock powers duly executed in blank or and, in any case, other duly executed instruments of transfer as required in order to validly transfer title in and to all the Contributed Comcast Equity Interests, and to the extent such Contributed Comcast Transferred Equity Interests are not certificated, Comcast Navy Contribution, LLC shall deliver or cause to be delivered to Newco or NBCU, as applicable, other customary evidence of ownership; and Newco or NBCU, as applicable, shall assume the Assumed Comcast Liabilities and Comcast Navy Contribution, LLC shall, or shall cause a Subsidiary of Comcast (other than a Contributed Comcast Subsidiary), to assume all Excluded Comcast Liabilities that are Liabilities of a Contributed Comcast Subsidiary;
(j) tenth, (i) the Newco Interest Holders shall, and GE shall cause the Newco Interest Holders to, deliver to Comcast Navy Acquisition, LLC, in book-entry form free and clear of all Liens, all of Liens (other than any restrictions arising under the Newco Membership Interests owned Transferred Entities’ Organizational Documents made available to the Purchaser or applicable securities Laws or Liens created by the Newco Interest Holders and Purchaser);
(ii) Navy Holdco 2 shall, and GE shall cause Navy Holdco 2 to, deliver to Comcast Navy Acquisition, LLC, free and clear of all Liens, Newco Membership Interests which, when aggregated with the interests delivered pursuant to clause (i), will constitute 25.25% Purchaser a copy of the outstanding Newco Membership Interests, in consideration shareholders resolutions approving the Purchaser as a shareholder of the payment by Comcast Navy Acquisition, LLC of the Comcast/NBCU Purchase PriceMerisant Luxembourg;
(kiii) eleventhdeliver to the Purchaser a copy of the notification letter sent by the Sellers to Merisant Luxembourg informing Merisant Luxembourg of the transfer of the Transferred Equity Interests from the Sellers to the Purchaser and requesting Merisant Luxembourg to record such transfer in the shareholders register of Merisant Luxembourg and to perform the necessary filing with the Luxembourg trade register, if Estimated Combined EBITDA duly countersigned by Merisant Luxembourg for acknowledgment and acceptance;
(iv) deliver to the Purchaser a copy of the shareholders register of Merisant Luxembourg recording the transfer of the Transferred Equity Interests to the Purchaser with effect as at the Closing Date;
(v) deliver to the Purchaser the certificate contemplated by Section 8.2(c);
(vi) deliver to the Purchaser a duly executed certificate of non-foreign status from the Sellers stating that in each case it is less than a United States Person within the Target Combined EBITDA then NBCU shall issue to Comcast Navy Acquisitionmeaning of Section 7701(a)(30) of the Code, LLC or such Affiliate of Comcast Navy Acquisition, LLC a note substantially in the form of Exhibit F-2 with a principal amount equal to the Shortfall Amount (the “Comcast Note”sample certification set forth in Treasury Regulations Section 1.1445-2(b)(2)(iv)(B);
(lvii) twelfthdeliver to the Purchaser written resignations or evidence of removal (in each case, the Escrow Agent shall release from escrow into the accounts of Navy Holdco 2 and the Newco Interest Holders designated in the Escrow Agreement the Comcast/NBCU Purchase Price, the Shortfall Amount, if any, and the amount effective as of the 2008 Contributed Comcast Businesses EBITDA Adjustment, if anyClosing) of each corporate director or officer of the Acquired Companies in his or her capacity as such, in each case, other than as the Purchaser shall have requested in writing at least five (5) Business Days before the Closing Date;
(viii) deliver to the Purchaser a counterpart to each of the Investors Agreement, duly executed by the Sellers;
(ix) deliver to the Purchaser a counterpart of the Bxxx of Sale and Assignment, duly executed by the Sellers;
(x) sell, convey, assign, transfer and deliver to the Purchaser the Transferred Assets and Liabilities and deliver any instruments of transfer necessary to evidence the transfer of Mafco Foreign Holdings’s right, title and interest in the Transferred Assets and Liabilities, pursuant to and in accordance with this Agreement duly executed by Mafco Foreign Holdings, to the terms of extent applicable;
(xi) deliver to the Purchaser a counterpart to the Escrow Agreement, duly executed by the Sellers;
(mxii) thirteenth, copies of the parties hereto shall, and shall cause their respective applicable Subsidiaries to, execute and deliver such deeds, bills of sale, endorsements, consents, assignments, assumptions and other good and sufficient documents or instruments as such parties and their respective counsel shall deem reasonably necessary in connection with the actions referred to in Sections 2.08(a) through (l)payoff letters required by Section 5.20; and
(nxiii) finallydeliver to the Purchaser such additional certificates, each NBCU Transferor resolutions, instruments, agreements and Comcast Transferor that will convey a “United States real property interest” (affidavits as defined under Section 897 may be reasonably requested by the Purchaser or necessary for the completion of the Code) shall deliver to Newco a certificate in accordance with Treasury Regulations Section 1.1445-2(b)(2) Debt Financing as evidence that as of immediately prior to the effect that Closing, the applicable transferor is not a “foreign person,” Sellers collectively own, directly or indirectly, all of the issued and each outstanding equity interests of Navy Holdco 2 and the Newco Interest Holders shall deliver to Comcast Navy Acquisition, LLC a certificate in accordance with Treasury Regulations Acquired Companies listed on Section 1.1445-2(b)(22.4(b)(xiii) to of the effect that the applicable transferor is not a “foreign personSellers Disclosure Schedule.” Newco hereby directs Comcast and the other Comcast Transferors (including Comcast Navy Contribution, LLC) to transfer the Contributed Comcast Assets to NBCU on its behalf and NBCU to assume the Assumed Comcast Liabilities on its behalf, in each case, as described in Section 2.08(i) and subject to the terms and conditions of this Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Act II Global Acquisition Corp.)
Closing Actions. At the Closing (Subject to the extent not completed prior to satisfaction or waiver of the Closing Date):conditions set forth in Article 7, at the Closing, the following transactions (the “Transactions”) shall be consummated in the order set forth below:
(a) firstNBCUniversal may lend, and/or cause one or more of its Subsidiaries to lend, to Comcast and/or one or more Subsidiaries of Comcast designated by Comcast (ieach, a “Comcast Designee”) GE shall, and shall cause an aggregate amount not to exceed the other NBCU Transferors to, transfer, directly or indirectly, the Contributed NBCU Assets to NBCU, (ii) NBCU shall assume the Assumed NBCU Liabilities, (iii) GE shall, or shall cause a Subsidiary of GE (other than a NBCU Entity) to, assume all Excluded NBCU Liabilities that are Liabilities of a NBCU Entity and (iv) NBCU shall pay to GE the fair value amount of the capital stock consolidated cash and cash equivalents on hand of NBCUniversal and its Subsidiaries as of the Subsidiary of GE identified on Section 2.08(d) of Closing Date, less the NBCU Disclosure Letter NBCUniversal Redemption Price (it being understood as defined below), with such loan to be evidenced by an intercompany note in a form that all of such capital stock shall be included is satisfactory to Comcast in the Contributed NBCU Assets);its sole discretion.
(b) second, (i) Navy Holdco 1 shallNBCUniversal and HoldCo shall enter into a redemption agreement in the form attached as Exhibit A-1 (the “NBCUniversal Common Unit Redemption Agreement”), and GE pursuant to which NBCUniversal shall cause Navy Holdco 1 to, contribute to Navy Holdco 2 redeem all of the outstanding NBCU SharesHoldCo’s right, free title and clear of all Liens interest in and (ii) GE and NBCU shall, and shall cause their respective applicable Subsidiaries to, enter into the ISDA Novation Agreements, which shall be deemed effective at the effective time of this Section 2.08(b);
(c) third, (i) Comcast Navy Acquisition, LLC and Navy Holdco 2 shall, and Navy Holdco 2 shall cause the Newco Interest Holders to, enter into the Escrow Agreement, (ii) Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to the Comcast/NBCU Purchase Price (calculated for this purpose based on the estimated amounts provided pursuant to Section 2.06(b)) into escrow pursuant to the terms of the Escrow Agreement, (iii) if Estimated Combined EBITDA is less than the Target Combined EBITDA, then Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to 3.5 times the lesser of (x) the amount of the shortfall, if such shortfall exists, of Estimated Comcast EBITDA as compared to Target Comcast EBITDA, or (y) the amount of the shortfall of Estimated Combined EBITDA as compared to Target Combined EBITDA into escrow pursuant to the terms of the Escrow Agreement (any such amount to be deposited into escrow pursuant to this clause (iii), the “Shortfall Amount”) and (iv) Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to the amount of the 2008 Contributed Comcast Businesses EBITDA Adjustment, if any, into escrow pursuant to the terms of the Escrow Agreement;
(d) fourth, NBCU shall, and GE shall cause NBCU to, complete the NBCU Conversion in accordance with Section 2.07;
(e) fifth, NBCU shall distribute its interests in the Holding Companies and New A&E to Navy Holdco 2;
(f) sixth, Navy Holdco 2 and the Newco Interest Holders shall contribute the equity interests of NBCU and the New LLCs to Newco833.5991494 NBCUniversal Common Units held by HoldCo, free and clear of all Liens, for an aggregate redemption price equal to $3,200,000,000 in exchange for Newco Membership Interests;
cash (gthe “NBCUniversal Redemption Price”) seventhand (ii) Comcast and/or one or more Comcast Designees and HoldCo shall enter into a purchase agreement in the form attached as Exhibit A-2 (the “NBCUniversal Common Unit Purchase Agreement”), Newco pursuant to which Comcast and/or such Comcast Designee(s) shall contribute the equity interests purchase all of the New LLCs HoldCo’s right, title and interest in and to NBCU;
(h) eighth, the parties hereto shall, and shall cause their respective applicable Subsidiaries to, deliver duly executed counterparts to the other Transaction Agreements referenced in Section 6.12;
(i) ninth, Comcast shall, and shall cause the other Comcast Transferors to, contribute or transfer, as applicable, the Contributed Comcast Assets to Newco or, at the direction of Newco, NBCU and, in consideration therefor, Newco shall issue to Comcast Navy Contribution, LLC1334.121014 NBCUniversal Common Units held by HoldCo, free and clear of all Liens, Newco Membership Interests representing 25.75% for an aggregate purchase price equal to $4,821,391,076 in cash (the “NBCUniversal Purchase Price”).
(c) (i) NBCUniversal shall deliver to HoldCo the NBCUniversal Redemption Price in immediately available funds by wire transfer to an account of the outstanding Newco Membership Interests (determined after giving effect HoldCo with a bank in New York City designated by HoldCo, by notice to such issuance) andNBCUniversal, which notice shall be delivered not later than two Business Days prior to the extent Contributed Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of HoldCo in such amount) and (ii) HoldCo shall deliver to NBCUniversal certificates representing 833.5991494 NBCUniversal Common Units duly endorsed in blank.
(i) Comcast Equity Interests are certificated, Comcast Navy Contribution, LLC shall deliver or cause to be delivered to Newco HoldCo the NBCUniversal Purchase Price in immediately available funds by wire transfer to an account of HoldCo with a bank in New York City designated by HoldCo, by notice to Comcast, which notice shall be delivered not later than two Business Days prior to the Closing Date (or NBCUif not so designated, as applicablethen by certified or official bank check payable in immediately available funds to the order of HoldCo in such amount) and (ii) HoldCo shall deliver to Comcast and/or each applicable Comcast Designee certificates representing 1334.121014 NBCUniversal Common Units, certificates evidencing such Contributed Comcast Equity Interestsin the aggregate, duly endorsed in blank or accompanied blank.
(e) GE, NBCH and HoldCo shall consummate the transactions contemplated by powers duly executed in blank or other duly executed instruments Section 9(b)(iv) of transfer as required in order to validly transfer title in and the Tax Matters Agreement pursuant to the Contributed Comcast Equity InterestsAssignment and Assumption Agreement attached as Exhibit B (the “TMA Assignment and Assumption Agreement”).
(f) HoldCo shall distribute as a dividend to NBCH (i) the rights and obligations transferred pursuant to the TMA Assignment and Assumption Agreement and (ii) an amount of cash equal to the NBCUniversal Redemption Price plus the NBCUniversal Purchase Price (the “HoldCo Distribution”).
(g) HoldCo shall deliver to NBCH the cash portion of the HoldCo Distribution in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to HoldCo, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount).
(h) The members of NBCUniversal shall enter into an amendment to the NBCUniversal LLC Agreement in the form attached as Exhibit C (the “NBCUniversal LLC Agreement Amendment”), pursuant to which 90% of the remaining NBCUniversal Common Units held by HoldCo (after giving effect to the transactions contemplated by the NBCUniversal Common Unit Redemption Agreement and the NBCUniversal Common Unit Purchase Agreement) shall be converted into preferred units in NBCUniversal (the “NBCUniversal Preferred Units”). The form attached as Exhibit C shall be revised prior to the Closing Date to include the terms of the Common Units and Preferred Units and the provisions relating thereto as they exist in the Second Amended and Restated NBCUniversal LLC Agreement (as defined below).
(i) HoldCo, the Bank of New York Mellon, as the trustee, and to certain guarantors shall enter into an indenture substantially in the extent such Contributed Comcast Equity Interests are not certificated, Comcast Navy Contribution, LLC shall deliver or cause to be delivered to Newco or NBCU, form attached as applicable, other customary evidence of ownership; and Newco or NBCU, as applicable, shall assume Exhibit D (the Assumed Comcast Liabilities and Comcast Navy Contribution, LLC shall, or shall cause a Subsidiary of Comcast (other than a Contributed Comcast Subsidiary“Indenture”), to assume all Excluded Comcast Liabilities that are Liabilities of a Contributed Comcast Subsidiary;.
(j) tenth, (i) HoldCo shall consummate the Newco Interest Holders shallHoldCo Third Party Financing, and GE shall cause if applicable, the Newco Interest Holders to, deliver to Comcast Navy Acquisition, LLC, free and clear of all Liens, all of Excluded HoldCo Third Party Financing and/or the Newco Membership Interests owned by the Newco Interest Holders and (ii) Navy Holdco 2 shall, and GE shall cause Navy Holdco 2 to, deliver to Comcast Navy Acquisition, LLC, free and clear of all Liens, Newco Membership Interests which, when aggregated with the interests delivered pursuant to clause (i), will constitute 25.25% of the outstanding Newco Membership Interests, in consideration of the payment by Comcast Navy Acquisition, LLC of the Comcast/NBCU Purchase Price;Additional HoldCo Third Party Financing.
(k) eleventh, if Estimated Combined EBITDA is less than the Target Combined EBITDA then NBCU HoldCo shall issue (i) execute and distribute as a dividend to Comcast Navy Acquisition, LLC or such Affiliate of Comcast Navy Acquisition, LLC a note NBCH unsecured notes in the form of forms attached as Exhibit F-2 with a principal amount equal to the Shortfall Amount (the “Comcast Note”);
(l) twelfthE-1, the Escrow Agent shall release from escrow into the accounts of Navy Holdco 2 Exhibit E-2, Exhibit E-3 and the Newco Interest Holders designated Exhibit E-4, in the Escrow Agreement the Comcast/NBCU Purchase Priceprincipal amounts of $700,000,000, the Shortfall Amount$700,000,000, if any$1,100,000,000 and $1,500,000,000, and the amount of the 2008 Contributed Comcast Businesses EBITDA Adjustmentrespectively, if any, in each case, pursuant to the terms of the Escrow Agreement;
(m) thirteenth, the parties hereto shall, and shall cause their respective applicable Subsidiaries to, execute and deliver such deeds, bills of sale, endorsements, consents, assignments, assumptions and other good and sufficient documents or instruments as such parties and their respective counsel shall deem reasonably necessary in connection with the actions referred to in Sections 2.08(a) through (l); and
(n) finally, each NBCU Transferor and Comcast Transferor that will convey a “United States real property interest” (as defined under Section 897 of the Code) shall deliver to Newco a certificate in accordance with Treasury Regulations Section 1.1445-2(b)(2) to the effect that the applicable transferor is not a “foreign person,” and each of Navy Holdco 2 and the Newco Interest Holders shall deliver to Comcast Navy Acquisition, LLC a certificate in accordance with Treasury Regulations Section 1.1445-2(b)(2) to the effect that the applicable transferor is not a “foreign person.” Newco hereby directs Comcast and the other Comcast Transferors (including Comcast Navy Contribution, LLC) to transfer the Contributed Comcast Assets to NBCU on its behalf and NBCU to assume the Assumed Comcast Liabilities on its behalf, in each case, as described in Section 2.08(i) and subject to the terms and conditions of this Agreement.reduction in
Appears in 1 contract
Closing Actions. At the Closing (Subject to the extent not completed prior to satisfaction or waiver of the Closing Date):conditions set forth in Article 7, at the Closing, the following transactions (the “Transactions”) shall be consummated in the order set forth below:
(a) firstNBCUniversal may lend, and/or cause one or more of its Subsidiaries to lend, to Comcast and/or one or more Subsidiaries of Comcast designated by Comcast (ieach, a “Comcast Designee”) GE shall, and shall cause an aggregate amount not to exceed the other NBCU Transferors to, transfer, directly or indirectly, the Contributed NBCU Assets to NBCU, (ii) NBCU shall assume the Assumed NBCU Liabilities, (iii) GE shall, or shall cause a Subsidiary of GE (other than a NBCU Entity) to, assume all Excluded NBCU Liabilities that are Liabilities of a NBCU Entity and (iv) NBCU shall pay to GE the fair value amount of the capital stock consolidated cash and cash equivalents on hand of NBCUniversal and its Subsidiaries as of the Subsidiary of GE identified on Section 2.08(d) of Closing Date, less the NBCU Disclosure Letter NBCUniversal Redemption Price (it being understood as defined below), with such loan to be evidenced by an intercompany note in a form that all of such capital stock shall be included is satisfactory to Comcast in the Contributed NBCU Assets);its sole discretion.
(b) second, (i) Navy Holdco 1 shallNBCUniversal and HoldCo shall enter into a redemption agreement in the form attached as Exhibit A-1 (the “NBCUniversal Common Unit Redemption Agreement”), and GE pursuant to which NBCUniversal shall cause Navy Holdco 1 to, contribute to Navy Holdco 2 redeem all of the outstanding NBCU SharesHoldCo’s right, free title and clear of all Liens interest in and (ii) GE and NBCU shall, and shall cause their respective applicable Subsidiaries to, enter into the ISDA Novation Agreements, which shall be deemed effective at the effective time of this Section 2.08(b);
(c) third, (i) Comcast Navy Acquisition, LLC and Navy Holdco 2 shall, and Navy Holdco 2 shall cause the Newco Interest Holders to, enter into the Escrow Agreement, (ii) Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to the Comcast/NBCU Purchase Price (calculated for this purpose based on the estimated amounts provided pursuant to Section 2.06(b)) into escrow pursuant to the terms of the Escrow Agreement, (iii) if Estimated Combined EBITDA is less than the Target Combined EBITDA, then Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to 3.5 times the lesser of (x) the amount of the shortfall, if such shortfall exists, of Estimated Comcast EBITDA as compared to Target Comcast EBITDA, or (y) the amount of the shortfall of Estimated Combined EBITDA as compared to Target Combined EBITDA into escrow pursuant to the terms of the Escrow Agreement (any such amount to be deposited into escrow pursuant to this clause (iii), the “Shortfall Amount”) and (iv) Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to the amount of the 2008 Contributed Comcast Businesses EBITDA Adjustment, if any, into escrow pursuant to the terms of the Escrow Agreement;
(d) fourth, NBCU shall, and GE shall cause NBCU to, complete the NBCU Conversion in accordance with Section 2.07;
(e) fifth, NBCU shall distribute its interests in the Holding Companies and New A&E to Navy Holdco 2;
(f) sixth, Navy Holdco 2 and the Newco Interest Holders shall contribute the equity interests of NBCU and the New LLCs to Newco833.5991494 NBCUniversal Common Units held by HoldCo, free and clear of all Liens, for an aggregate redemption price equal to $3,200,000,000 in exchange for Newco Membership Interests;
cash (gthe “NBCUniversal Redemption Price”) seventhand (ii) Comcast and/or one or more Comcast Designees and HoldCo shall enter into a purchase agreement in the form attached as Exhibit A-2 (the “NBCUniversal Common Unit Purchase Agreement”), Newco pursuant to which Comcast and/or such Comcast Designee(s) shall contribute the equity interests purchase all of the New LLCs HoldCo’s right, title and interest in and to NBCU;
(h) eighth, the parties hereto shall, and shall cause their respective applicable Subsidiaries to, deliver duly executed counterparts to the other Transaction Agreements referenced in Section 6.12;
(i) ninth, Comcast shall, and shall cause the other Comcast Transferors to, contribute or transfer, as applicable, the Contributed Comcast Assets to Newco or, at the direction of Newco, NBCU and, in consideration therefor, Newco shall issue to Comcast Navy Contribution, LLC1334.121014 NBCUniversal Common Units held by HoldCo, free and clear of all Liens, Newco Membership Interests representing 25.75% for an aggregate purchase price equal to $4,821,391,076 in cash (the “NBCUniversal Purchase Price”).
(c) (i) NBCUniversal shall deliver to HoldCo the NBCUniversal Redemption Price in immediately available funds by wire transfer to an account of the outstanding Newco Membership Interests (determined after giving effect HoldCo with a bank in New York City designated by HoldCo, by notice to such issuance) andNBCUniversal, which notice shall be delivered not later than two Business Days prior to the extent Contributed Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of HoldCo in such amount) and (ii) HoldCo shall deliver to NBCUniversal certificates representing 833.5991494 NBCUniversal Common Units duly endorsed in blank.
(d) (i) Comcast Equity Interests are certificated, Comcast Navy Contribution, LLC shall deliver or cause to be delivered to Newco HoldCo the NBCUniversal Purchase Price in immediately available funds by wire transfer to an account of HoldCo with a bank in New York City designated by HoldCo, by notice to Comcast, which notice shall be delivered not later than two Business Days prior to the Closing Date (or NBCUif not so designated, as applicablethen by certified or official bank check payable in immediately available funds to the order of HoldCo in such amount) and (ii) HoldCo shall deliver to Comcast and/or each applicable Comcast Designee certificates representing 1334.121014 NBCUniversal Common Units, certificates evidencing such Contributed Comcast Equity Interestsin the aggregate, duly endorsed in blank or accompanied blank.
(e) GE, NBCH and HoldCo shall consummate the transactions contemplated by powers duly executed in blank or other duly executed instruments Section 9(b)(iv) of transfer as required in order to validly transfer title in and the Tax Matters Agreement pursuant to the Contributed Comcast Equity InterestsAssignment and Assumption Agreement attached as Exhibit B (the “TMA Assignment and Assumption Agreement”).
(f) HoldCo shall distribute as a dividend to NBCH (i) the rights and obligations transferred pursuant to the TMA Assignment and Assumption Agreement and (ii) an amount of cash equal to the NBCUniversal Redemption Price plus the NBCUniversal Purchase Price (the “HoldCo Distribution”).
(g) HoldCo shall deliver to NBCH the cash portion of the HoldCo Distribution in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to HoldCo, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such amount).
(h) The members of NBCUniversal shall enter into an amendment to the NBCUniversal LLC Agreement in the form attached as Exhibit C (the “NBCUniversal LLC Agreement Amendment”), pursuant to which 90% of the remaining NBCUniversal Common Units held by HoldCo (after giving effect to the transactions contemplated by the NBCUniversal Common Unit Redemption Agreement and the NBCUniversal Common Unit Purchase Agreement) shall be converted into preferred units in NBCUniversal (the “NBCUniversal Preferred Units”). The form attached as Exhibit C shall be revised prior to the Closing Date to include the terms of the Common Units and Preferred Units and the provisions relating thereto as they exist in the Second Amended and Restated NBCUniversal LLC Agreement (as defined below).
(i) HoldCo, the Bank of New York Mellon, as the trustee, and certain guarantors shall enter into an indenture substantially in the form attached as Exhibit D (the “Indenture”).
(j) HoldCo shall consummate the HoldCo Third Party Financing, and if applicable, the Excluded HoldCo Third Party Financing and/or the Additional HoldCo Third Party Financing.
(k) HoldCo shall (i) execute and distribute as a dividend to NBCH unsecured notes in the forms attached as Exhibit E-1, Exhibit E-2, Exhibit E-3 and Exhibit E-4, in the principal amounts of $700,000,000, $700,000,000, $1,100,000,000 and $1,500,000,000, respectively, subject to reduction in accordance with Section 5.04(c) (collectively, the “HoldCo Notes”) and (ii) distribute to NBCH as a dividend an amount in cash equal to (A) $1,250,000,000 plus (B) the net proceeds of the Additional HoldCo Third Party Financing, if any; provided that the sum of (x) the aggregate principal amount of the HoldCo Notes (as reduced, if at all, pursuant to Section 5.04(c)) and (y) the total amount of cash distributed to NBCH as a dividend pursuant to the extent foregoing clause (ii) shall not exceed $5,250,000,000.
(l) HoldCo shall deliver to NBCH the cash referred to in Section 1.01(k)(ii) in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to HoldCo, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of NBCH in such Contributed amount).
(i) HoldCo shall (i) adopt and file with the Secretary of State of the State of Delaware a second amended and restated certificate of incorporation in the form attached as Exhibit F (the “HoldCo Charter”), (ii) adopt and file with the Secretary of State of the State of Delaware a certificate of designations in the form attached as Exhibit G (the “Certificate of Designations”), and (iii) adopt amended and restated bylaws in the form attached as Exhibit H.
(n) HoldCo and NBCH shall enter into an Exchange Agreement in the form attached as Exhibit I (the “Exchange Agreement”) pursuant to which HoldCo shall issue 724,700 shares of preferred stock (the “HoldCo Preferred Shares”) and 789.9791 shares of common stock (the “HoldCo Common Shares”) to NBCH in exchange for all of the HoldCo Shares held by NBCH, free and clear of all Liens.
(i) NBCH, in its capacity as owner of 100% of the HoldCo Preferred Shares, shall execute and deliver to HoldCo a written stockholder consent electing Xxxxx Xxxxxxx as the initial Series A Preferred Director (as defined in the Certificate of Designations); and (ii) NBCH, in its capacity as owner of 100% of the HoldCo Common Shares, shall execute and deliver to HoldCo a written stockholder consent electing the initial Common Stock Directors (as defined in the HoldCo Charter).
(p) Comcast Equity Interests are not certificatedand/or one or more Comcast Designees and NBCH shall enter into a purchase agreement in the form attached as Exhibit J (the “HoldCo Share Purchase Agreement”), pursuant to which Comcast Navy Contributionand/or such Comcast Designee(s) shall purchase from NBCH 100% of NBCH’s HoldCo Common Shares, LLC free and clear of all Liens, for a cash price equal to $2,725,908,924 (the “HoldCo Share Purchase Price”). The consummation of the transactions contemplated by the HoldCo Share Purchase Agreement is referred to herein as the “HoldCo Acquisition”.
(q) (i) Comcast shall deliver or cause to be delivered to Newco NBCH the HoldCo Share Purchase Price in immediately available funds by wire transfer to an account of NBCH with a bank in New York City designated by NBCH, by notice to Comcast, which notice shall be delivered not later than two Business Days prior to the Closing Date (or NBCUif not so designated, as applicable, other customary evidence then by certified or official bank check payable in immediately available funds to the order of ownership; and Newco or NBCU, as applicable, shall assume the Assumed Comcast Liabilities and Comcast Navy Contribution, LLC shall, or shall cause a Subsidiary of Comcast (other than a Contributed Comcast Subsidiary), to assume all Excluded Comcast Liabilities that are Liabilities of a Contributed Comcast Subsidiary;
(jNBCH in such amount) tenth, (i) the Newco Interest Holders shall, and GE shall cause the Newco Interest Holders to, deliver to Comcast Navy Acquisition, LLC, free and clear of all Liens, all of the Newco Membership Interests owned by the Newco Interest Holders and (ii) Navy Holdco 2 shall, and GE HoldCo shall cause Navy Holdco 2 to, deliver to Comcast Navy Acquisitionand/or each applicable Comcast Designee certificates representing the HoldCo Common Shares, LLC, free and clear of all Liens, Newco Membership Interests which, when aggregated with duly endorsed in blank.
(r) Comcast and/or the interests delivered Comcast Designee(s) which purchased the HoldCo Common Shares pursuant to clause the HoldCo Share Purchase Agreement shall execute and deliver to HoldCo a written stockholder consent electing new Common Stock Directors (ias defined in the HoldCo Charter), will constitute 25.25% of the outstanding Newco Membership Interests, in consideration of the payment by Comcast Navy Acquisition, LLC of the Comcast/NBCU Purchase Price;.
(ks) eleventhComcast and/or each applicable Comcast Designee, if Estimated Combined EBITDA is less than the Target Combined EBITDA then NBCU HoldCo and each other member of NBCUniversal shall issue to Comcast Navy Acquisition, LLC or such Affiliate enter into an amended and restated limited liability company agreement of Comcast Navy Acquisition, LLC a note NBCUniversal in the form of attached as Exhibit F-2 with a principal amount equal to the Shortfall Amount K (the “Comcast NoteSecond Amended and Restated NBCUniversal LLC Agreement”);.
(lt) twelfth, the Escrow Agent shall release from escrow into the accounts of Navy Holdco 2 Comcast and the Newco Interest Holders designated in the Escrow Agreement the Comcast/NBCU Purchase Price, the Shortfall Amount, if any, and the amount of the 2008 Contributed Comcast Businesses EBITDA Adjustment, if any, in each case, pursuant to the terms of the Escrow Agreement;
(m) thirteenth, the parties hereto GE shall, and shall cause their respective applicable Subsidiaries Affiliates to, execute and deliver such deeds, bills of sale, endorsements, consents, assignments, assumptions and other good and sufficient documents or instruments as such parties and their respective counsel shall deem reasonably necessary in connection with the actions referred to in Sections 2.08(a) through (l); and
(n) finally, each NBCU Transferor and Comcast Transferor that will convey a “United States real property interest” (as defined under Section 897 of the Code) shall deliver to Newco a certificate in accordance with Treasury Regulations Section 1.1445-2(b)(2) enter into Amendment No. 3 to the effect that Tax Matters Agreement (the applicable transferor is not a “foreign person,” and each of Navy Holdco 2 and TMA Amendment Agreement”) in the Newco Interest Holders shall deliver to Comcast Navy Acquisition, LLC a certificate in accordance with Treasury Regulations Section 1.1445-2(b)(2) to the effect that the applicable transferor is not a “foreign person.” Newco hereby directs Comcast and the other Comcast Transferors (including Comcast Navy Contribution, LLC) to transfer the Contributed Comcast Assets to NBCU on its behalf and NBCU to assume the Assumed Comcast Liabilities on its behalf, in each case, form attached as described in Section 2.08(i) and subject to the terms and conditions of this Agreement.Exhibit L.
Appears in 1 contract
Samples: Transaction Agreement (Comcast Corp)
Closing Actions. At the Closing (to the extent not completed prior to the Closing Date):Closing:
(a) first, Navy Holdco 1 shall, and GE shall cause Navy Holdco 1 to, contribute to Navy Holdco 2 all of the outstanding NBCU Shares, free and clear of all Liens;
(ib) second, NBCU shall, and GE shall cause NBCU to, complete the NBCU Conversion in accordance with Section 2.07;
(c) third, Navy Holdco 2 shall, and GE shall cause Navy Holdco 2 to, contribute to Newco all of the outstanding NBCU Shares, free and clear of all Liens;
(d) fourth, GE shall, and shall cause the other NBCU Transferors to, transfer, directly or indirectly, the Contributed NBCU Assets to NBCU, (ii) ; NBCU shall assume the Assumed NBCU Liabilities, (iii) Liabilities and GE shall, or shall cause a Subsidiary of GE (other than a NBCU Entity) to, assume all Excluded NBCU Liabilities that are Liabilities of a NBCU Entity and (iv) NBCU shall pay to GE the fair value of the capital stock of the Subsidiary Subidiary of GE identified on Section 2.08(d) of the NBCU Disclosure Letter (it being understood that all of such capital stock shall be included in the Contributed NBCU Assets);
(b) second, (i) Navy Holdco 1 shall, and GE shall cause Navy Holdco 1 to, contribute to Navy Holdco 2 all of the outstanding NBCU Shares, free and clear of all Liens and (ii) GE and NBCU shall, and shall cause their respective applicable Subsidiaries to, enter into the ISDA Novation Agreements, which shall be deemed effective at the effective time of this Section 2.08(b);
(c) third, (i) Comcast Navy Acquisition, LLC and Navy Holdco 2 shall, and Navy Holdco 2 shall cause the Newco Interest Holders to, enter into the Escrow Agreement, (ii) Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to the Comcast/NBCU Purchase Price (calculated for this purpose based on the estimated amounts provided pursuant to Section 2.06(b)) into escrow pursuant to the terms of the Escrow Agreement, (iii) if Estimated Combined EBITDA is less than the Target Combined EBITDA, then Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to 3.5 times the lesser of (x) the amount of the shortfall, if such shortfall exists, of Estimated Comcast EBITDA as compared to Target Comcast EBITDA, or (y) the amount of the shortfall of Estimated Combined EBITDA as compared to Target Combined EBITDA into escrow pursuant to the terms of the Escrow Agreement (any such amount to be deposited into escrow pursuant to this clause (iii), the “Shortfall Amount”) and (iv) Comcast Navy Acquisition, LLC shall, or shall cause an Affiliate on behalf of Comcast Navy Acquisition, LLC to, deposit funds in an amount equal to the amount of the 2008 Contributed Comcast Businesses EBITDA Adjustment, if any, into escrow pursuant to the terms of the Escrow Agreement;
(d) fourth, NBCU shall, and GE shall cause NBCU to, complete the NBCU Conversion in accordance with Section 2.07;
(e) fifth, NBCU shall distribute its interests in the Holding Companies and New A&E to Navy Holdco 2;
(f) sixth, Navy Holdco 2 and the Newco Interest Holders shall contribute the equity interests of NBCU and the New LLCs to Newco, free and clear of all Liens, in exchange for Newco Membership Interests;
(g) seventh, Newco shall contribute the equity interests of the New LLCs to NBCU;
(h) eighth, the parties hereto shall, and shall cause their respective applicable Subsidiaries to, deliver duly executed counterparts to the other Transaction Agreements referenced in Section 6.12;
(i) ninth, Comcast shall, and shall cause the other Comcast Transferors to, contribute or transfer, as applicable, the Contributed Comcast Assets to Newco or, at the direction of Newco, NBCU and, in consideration therefor, Newco shall issue to Comcast Navy Contribution, LLCComcast, free and clear of all Liens, Newco Membership Interests representing 25.75% of the outstanding Newco Membership Interests (determined after giving effect to such issuance) and, to the extent Contributed Comcast Equity Interests are certificated, Comcast Navy Contribution, LLC shall deliver or cause to be delivered to Newco or NBCU, as applicable, certificates evidencing such Contributed Comcast Equity Interests, duly endorsed in blank or accompanied by powers duly executed in blank or other duly executed instruments of transfer as required in order to validly transfer title in and to the Contributed Comcast Equity Interests, and to the extent such Contributed Comcast Equity Interests are not certificated, Comcast Navy Contribution, LLC shall deliver or cause to be delivered to Newco or NBCU, as applicable, other customary evidence of ownership; and Newco or NBCU, as applicable, shall assume the Assumed Comcast Liabilities and Comcast Navy Contribution, LLC shall, or shall cause a Subsidiary of Comcast (other than a Contributed Comcast Subsidiary), to assume all Excluded Comcast Liabilities that are Liabilities of a Contributed Comcast Subsidiary;
(jf) tenthsixth, (i) the Newco Interest Holders shall, and GE shall cause the Newco Interest Holders to, deliver to Comcast Navy Acquisition, LLC, free and clear of all Liens, all of the Newco Membership Interests owned by the Newco Interest Holders and (ii) Navy Holdco 2 shall, and GE shall cause Navy Holdco 2 to, deliver to Comcast Navy Acquisition, LLCComcast, free and clear of all Liens, Newco Membership Interests which, when aggregated with the interests delivered pursuant to clause (i), will constitute 25.25% of the outstanding Newco Membership Interests, Interests in consideration of the payment by Comcast Navy Acquisition, LLC to NBCU of the Comcast/NBCU Purchase Price;
(kg) eleventhseventh, (i) Comcast shall pay the Comcast/NBCU Purchase Price (calculated for this purpose based on the estimated amounts provided pursuant to Section 2.06(b)) to Navy Holdco 2, by wire transfer of immediately available funds, into an account designated by Navy Holdco 2, (ii) if Estimated Combined EBITDA is less than the Target Combined EBITDA, then (A) Comcast shall, or shall cause an Affiliate to, contribute to NBCU by wire transfer of immediately available funds, 3.5 times the lesser of (x) the amount of the shortfall, if such shortfall exists, of Estimated Comcast EBITDA then as compared to Target Comcast EBITDA, or (y) the amount of the shortfall of Estimated Combined EBITDA as compared to Target Combined EBITDA and (B) NBCU shall issue to Comcast Navy Acquisition, LLC or such Affiliate of Comcast Navy Acquisition, LLC a note in the form of Exhibit F-2 with a principal amount equal to the Shortfall Amount amount that Comcast contributes or causes to be contributed pursuant to clause (A) (the “Comcast Note”);
) and (liii) twelfthComcast shall, the Escrow Agent or shall release from escrow into the accounts cause an Affiliate to, contribute to NBCU by wire transfer of Navy Holdco 2 and the Newco Interest Holders designated in the Escrow Agreement the Comcast/NBCU Purchase Priceimmediately available funds, the Shortfall Amount, if any, and the amount of the 2008 Contributed Comcast Businesses EBITDA Adjustment, if any, in each case, pursuant to the terms of the Escrow Agreement;
(mh) thirteentheighth, Navy Holdco 2 shall deliver to Comcast a receipt for the Comcast/NBCU Purchase Price;
(i) ninth, the parties hereto shall, and shall cause their respective applicable Subsidiaries to, deliver duly executed counterparts to the other Transaction Agreements referenced in Section 6.12;
(j) tenth, the parties hereto shall, and shall cause their respective applicable Subsidiaries to, execute and deliver such deeds, bills of sale, endorsements, consents, assignments, assumptions and other good and sufficient documents or instruments as such parties and their respective counsel shall deem reasonably necessary in connection with the actions referred to in Sections 2.08(a) through (li); and
(nk) finally, each NBCU Transferor and Comcast Transferor that will convey a “United States real property interest” (as defined under Section 897 of the Code) shall deliver to Newco a certificate in accordance with Treasury Regulations Section 1.1445-2(b)(2) to the effect that the applicable transferor is not a “foreign person,” and each of Navy Holdco 2 and the Newco Interest Holders shall deliver to Comcast Navy Acquisition, LLC a certificate in accordance with Treasury Regulations Section 1.1445-2(b)(2) to the effect that the applicable transferor is not a “foreign person.” ”. Newco hereby directs Comcast and the other Comcast Transferors (including Comcast Navy Contribution, LLC) to transfer the Contributed Comcast Assets to NBCU on its behalf and NBCU to assume the Assumed Comcast Liabilities on its behalf, in each case, as described in Section 2.08(i2.08(e) and subject to the terms and conditions of this Agreement.
Appears in 1 contract
