Closing Date Net Debt. (a) The Company shall deliver to Purchaser a schedule (the “Preliminary Closing Date Net Debt Schedule”) on or before the first Business Day that is five calendar days following approval of the Disclosure Statement, that: (i) sets forth the Company’s good faith estimate for each of the three components of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts along with a reasonably detailed explanation and calculation of each such component and (ii) discloses the Company’s good faith estimate of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts and GGO Setup Costs. (b) Purchaser shall review the Preliminary Closing Date Net Debt Schedule during the Preliminary Closing Date Net Debt Review Period, during which time the Company shall allow Purchaser reasonable access to all non-privileged or work product documents or records or personnel used in the preparation of the Preliminary Closing Date Net Debt Schedule. On or prior to the Preliminary Closing Date Net Debt Review Deadline, Purchaser may deliver to the Company a notice (the “Dispute Notice”) listing those items on the Preliminary Closing Date Net Debt Schedule to which Purchaser takes exception, which Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which Purchaser has delivered such list, (ii) set forth the amount of Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts that Purchaser has calculated based on the information contained in the Preliminary Closing Date Net Debt Schedule, and (iii) specifically identify Purchaser’s proposed adjustment(s). If Purchaser timely provides the Company with a Dispute Notice, then Purchaser and the Company shall, within ten (10) days following receipt of such Dispute Notice by the Company (the “Resolution Period”), attempt to resolve their differences with respect to the items specified in the Dispute Notice (the “Disputed Items”). If Purchaser and the Company do not resolve all Disputed Items by the end of the Resolution Period, then all Disputed Items remaining in dispute shall be submitted to the Bankruptcy Court for resolution at or concurrent with the Confirmation Hearing. The Bankruptcy Court shall consider only those Disputed Items that Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by Purchaser and the Company. If Purchaser does not timely deliver a Dispute Notice, then Purchaser shall be deemed to have accepted and agreed to the Preliminary Closing Date Net Debt Schedule and to have waived any right to dispute the matters set forth therein. (c) On or prior to the Effective Date, the Company shall deliver to Purchaser the Conclusive Net Debt Adjustment Statement. (d) It is the intention of the parties that releases from the Reserve are not intended to alter the allocation of value between GGO and the Company. Accordingly, the Plan shall provide that if there is a Reserve Surplus Amount as of the end of any fiscal quarter prior to the maturity of the GGO Promissory Note, the principal amount of the GGO Promissory Note shall be reduced (not below zero) (i) by 80% of the balance of the Reserve Surplus Amount corresponding to any Net Debt Surplus Amount and (ii) if after application of the Reserve Surplus Amount pursuant to clause (i), any Reserve Surplus Amount remains, by 100% of the remaining balance of the Reserve Surplus Amount. In the event that any party requests an equitable adjustment to this formula, the other parties shall consider the request in good faith. (e) The Plan shall provide that, if there is an Offering Premium, the principal amount of the GGO Promissory Note shall be reduced (but not below zero) by 80% of the aggregate Offering Premium on the 31st day following the Closing Date. (f) The Plan and the agreements relating to the GGO Share Distribution shall provide that from and after the Closing, the Company shall indemnify GGO and its Subsidiaries from and against 93.75% of any and all losses, claims damages, liabilities and reasonable expenses to which GGO and its Subsidiaries may become subject, in each case solely to the extent directly attributable to MPC Taxes actually paid at or after the Effective Date; provided that in no event shall the Company be required to make any indemnification payment hereunder to the extent such payment would result in aggregate payments under this Section 5.17(f) that would exceed the lower of (i) $303,750,000 and (ii) the then effective Excess Surplus Amount (the “Indemnity Cap”). The Plan shall provide that if GGO or its Affiliates receives any refund or realizes any reduction of its Tax liability in respect of the MPC Assets for which it has received a payment or realized a benefit pursuant to this Agreement, GGO shall pay an amount equal to such refund or reduction in Tax liability (less any costs or Taxes incurred with respect to the receipt thereof) to the Reorganized Company within ten (10) Business Days of the receipt or realization thereof. (g) If GGO is obligated to pay MPC Taxes with respect to the tax year 2010 and the Company is not then obligated to indemnify GGO as a consequence of the Indemnity Cap, then solely with respect to such payments, the Company shall pay such amount of MPC Taxes and the principal amount of the GGO Promissory Note shall be increased by the amount of such payment and if at such time no GGO Promissory Note is outstanding, on the date of any such payment, GGO shall issue in favor of the Company a promissory note in the aggregate principal amount of such payment on the same terms as the GGO Promissory Note.
Appears in 3 contracts
Samples: Investment Agreement, Cornerstone Investment Agreement (General Growth Properties Inc), Stock Purchase Agreement (Pershing Square Capital Management, L.P.)
Closing Date Net Debt. (a) The Company shall deliver to each Purchaser a schedule (the “Preliminary Closing Date Net Debt Schedule”) on or before the first Business Day that is five calendar days following approval of the Disclosure Statement, that: (i) sets forth the Company’s good faith estimate for each of the three components of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts along with a reasonably detailed explanation and calculation of each such component and (ii) discloses the Company’s good faith estimate of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts and GGO Setup Costs.
(b) Each Purchaser shall review the Preliminary Closing Date Net Debt Schedule during the Preliminary Closing Date Net Debt Review Period, during which time the Company shall allow such Purchaser reasonable access to all non-privileged or work product documents or records or personnel used in the preparation of the Preliminary Closing Date Net Debt Schedule. On or prior to the Preliminary Closing Date Net Debt Review Deadline, any Purchaser may deliver to the Company a notice (the “Dispute Notice”) listing those items on the Preliminary Closing Date Net Debt Schedule to which such Purchaser takes exception, which Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which such Purchaser has delivered such list, (ii) set forth the amount of Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts that such Purchaser has calculated based on the information contained in the Preliminary Closing Date Net Debt Schedule, and (iii) specifically identify such Purchaser’s proposed adjustment(s). If a Purchaser timely provides the Company with a Dispute Notice, then such Purchaser and the Company shall, within ten (10) days following receipt of such Dispute Notice by the Company (the “Resolution Period”), attempt to resolve their differences with respect to the items specified in the Dispute Notice (the “Disputed Items”). If a Purchaser and the Company do not resolve all Disputed Items by the end of the Resolution Period, then all Disputed Items remaining in dispute shall be submitted to the Bankruptcy Court for resolution at or concurrent with the Confirmation Hearing. The Bankruptcy Court shall consider only those Disputed Items that such Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by such Purchaser and the Company. If a Purchaser does not timely deliver a Dispute Notice, then such Purchaser shall be deemed to have accepted and agreed to the Preliminary Closing Date Net Debt Schedule and to have waived any right to dispute the matters set forth therein.
(c) On or prior to the Effective Date, the Company shall deliver to each Purchaser the Conclusive Net Debt Adjustment Statement.
(d) It is the intention of the parties that releases from the Reserve are not intended to alter the allocation of value between GGO and the Company. Accordingly, the Plan shall provide that if there is a Reserve Surplus Amount as of the end of any fiscal quarter prior to the maturity of the GGO Promissory Note, the principal amount of the GGO Promissory Note shall be reduced (not below zero) (i) by 80% of the balance of the Reserve Surplus Amount corresponding to any Net Debt Surplus Amount and (ii) if after application of the Reserve Surplus Amount pursuant to clause (i), any Reserve Surplus Amount remains, by 100% of the remaining balance of the Reserve Surplus Amount. In the event that any party requests an equitable adjustment to this formula, the other parties shall consider the request in good faith.
(e) The Plan shall provide that, if there is an Offering Premium, the principal amount of the GGO Promissory Note shall be reduced (but not below zero) by 80% of the aggregate Offering Premium on the 31st day following the Closing Date.
(f) The Plan and the agreements relating to the GGO Share Distribution shall provide that from and after the Closing, the Company shall indemnify GGO and its Subsidiaries from and against 93.75% of any and all losses, claims claims, damages, liabilities and reasonable expenses to which GGO and its Subsidiaries may become subject, in each case solely to the extent directly attributable to MPC Taxes actually paid at or after the Effective Date; provided provided, that in no event shall the Company be required to make any indemnification payment hereunder to the extent such payment would result in aggregate payments under this Section 5.17(f5.16(f) that would exceed the lower of (i) $303,750,000 and (ii) the then effective Excess Surplus Amount (the “Indemnity Cap”). The Plan shall provide that if GGO or its Affiliates receives any refund or realizes any reduction of its Tax liability in respect of the MPC Assets for which it has received a payment or realized a benefit pursuant to this Agreement, GGO shall pay an amount equal to such refund or reduction in Tax liability (less any costs or Taxes incurred with respect to the receipt thereof) to the Reorganized Company within ten (10) Business Days of the receipt or realization thereof.
(g) If GGO is obligated to pay MPC Taxes with respect to the tax year 2010 and the Company is not then obligated to indemnify GGO as a consequence of the Indemnity Cap, then solely with respect to such payments, the Company shall pay such amount of MPC Taxes and the principal amount of the GGO Promissory Note shall be increased by the amount of such payment and if at such time no GGO Promissory Note is outstanding, on the date of any such payment, GGO shall issue in favor of the Company a promissory note in the aggregate principal amount of such payment on the same terms as the GGO Promissory Note.
Appears in 3 contracts
Samples: Stock Purchase Agreement (General Growth Properties Inc), Stock Purchase Agreement, Stock Purchase Agreement (Pershing Square Capital Management, L.P.)
Closing Date Net Debt. (a) The Company shall deliver to each Purchaser a schedule (the “Preliminary Closing Date Net Debt Schedule”) on or before the first Business Day that is five calendar days following approval of the Disclosure Statement, that: (i) sets forth the Company’s good faith estimate for each of the three components of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts along with a reasonably detailed explanation and calculation of each such component and (ii) discloses the Company’s good faith estimate of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts and GGO Setup Costs.
(b) Each Purchaser shall review the Preliminary Closing Date Net Debt Schedule during the Preliminary Closing Date Net Debt Review Period, during which time the Company shall allow such Purchaser reasonable access to all non-privileged or work product documents or records or personnel used in the preparation of the Preliminary Closing Date Net Debt Schedule. On or prior to the Preliminary Closing Date Net Debt Review Deadline, any Purchaser may deliver to the Company a notice (the “Dispute Notice”) listing those items on the Preliminary Closing Date Net Debt Schedule to which Purchaser takes exception, which Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which the Purchaser has delivered such list, (ii) set forth the amount of Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts that such Purchaser has calculated based on the information contained in the Preliminary Closing Date Net Debt Schedule, and (iii) specifically identify such Purchaser’s proposed adjustment(s). If a Purchaser timely provides the Company with a Dispute Notice, then such Purchaser and the Company shall, within ten (10) days following receipt of such Dispute Notice by the Company (the “Resolution Period”), attempt to resolve their differences with respect to the items specified in the Dispute Notice (the “Disputed Items”). If a Purchaser and the Company do not resolve all Disputed Items by the end of the Resolution Period, then all Disputed Items remaining in dispute shall be submitted to the Bankruptcy Court for resolution at or concurrent with the Confirmation Hearing. The Bankruptcy Court shall consider only those Disputed Items that such Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by such Purchaser and the Company. If such Purchaser does not timely deliver a Dispute Notice, then such Purchaser shall be deemed to have accepted and agreed to the Preliminary Closing Date Net Debt Schedule and to have waived any right to dispute the matters set forth therein.
(c) On or prior to the Effective Date, the Company shall deliver to each Purchaser the Conclusive Net Debt Adjustment Statement.
(d) It is the intention of the parties that releases from the Reserve are not intended to alter the allocation of value between GGO and the Company. Accordingly, the Plan shall provide that if there is a Reserve Surplus Amount as of the end of any fiscal quarter prior to the maturity of the GGO Promissory Note, the principal amount of the GGO Promissory Note shall be reduced (not below zero) (i) by 80% of the balance of the Reserve Surplus Amount corresponding to any Net Debt Surplus Amount and (ii) if after application of the Reserve Surplus Amount pursuant to clause (i), any Reserve Surplus Amount remains, by 100% of the remaining balance of the Reserve Surplus Amount. In the event that any party requests an equitable adjustment to this formula, the other parties shall consider the request in good faith.
(e) The Plan shall provide that, if there is an Offering Premium, the principal amount of the GGO Promissory Note shall be reduced (but not below zero) by 80% of the aggregate Offering Premium on the 31st day following the Closing Date.
(f) The Plan and the agreements relating to the GGO Share Distribution shall provide that from and after the Closing, the Company shall indemnify GGO and its Subsidiaries from and against 93.75% of any and all losses, claims claims, damages, liabilities and reasonable expenses to which GGO and its Subsidiaries may become subject, in each case solely to the extent directly attributable to MPC Taxes actually paid at or after the Effective Date; provided provided, that in no event shall the Company be required to make any indemnification payment hereunder to the extent such payment would result in aggregate payments under this Section 5.17(f5.16(f) that would exceed the lower of (i) $303,750,000 and (ii) the then effective Excess Surplus Amount (the “Indemnity Cap”). The Plan shall provide that if GGO or its Affiliates receives any refund or realizes any reduction of its Tax liability in respect of the MPC Assets for which it has received a payment or realized a benefit pursuant to this Agreement, GGO shall pay an amount equal to such refund or reduction in Tax liability (less any costs or Taxes incurred with respect to the receipt thereof) to the Reorganized Company within ten (10) Business Days of the receipt or realization thereof.
(g) If GGO is obligated to pay MPC Taxes with respect to the tax year 2010 and the Company is not then obligated to indemnify GGO as a consequence of the Indemnity Cap, then solely with respect to such payments, the Company shall pay such amount of MPC Taxes and the principal amount of the GGO Promissory Note shall be increased by the amount of such payment and if at such time no GGO Promissory Note is outstanding, on the date of any such payment, GGO shall issue in favor of the Company a promissory note in the aggregate principal amount of such payment on the same terms as the GGO Promissory Note.
Appears in 3 contracts
Samples: Stock Purchase Agreement (General Growth Properties Inc), Stock Purchase Agreement, Stock Purchase Agreement (Pershing Square Capital Management, L.P.)
Closing Date Net Debt. (a) The Company shall deliver to each Purchaser a schedule (the “Preliminary Closing Date Net Debt Schedule”) on or before the first Business Day that is five calendar days following approval of the Disclosure Statement, that: (i) sets forth the Company’s good faith estimate for each of the three components of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts along with a reasonably detailed explanation and calculation of each such component and (ii) discloses the Company’s good faith estimate of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts and GGO Setup Costs.
(b) Each Purchaser shall review the Preliminary Closing Date Net Debt Schedule during the Preliminary Closing Date Net Debt Review Period, during which time the Company shall allow such Purchaser reasonable access to all non-privileged or and non-work product documents or records or personnel used in the preparation of the Preliminary Closing Date Net Debt Schedule. On or prior to the Preliminary Closing Date Net Debt Review Deadline, any Purchaser may deliver to the Company a notice (the “Dispute Notice”) listing those items on the Preliminary Closing Date Net Debt Schedule to which such Purchaser takes exception, which Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which such Purchaser has delivered such list, (ii) set forth the amount of Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts that such Purchaser has calculated based on the information contained in the Preliminary Closing Date Net Debt Schedule, and (iii) specifically identify such Purchaser’s proposed adjustment(s). If a Purchaser timely provides the Company with a Dispute Notice, then such Purchaser and the Company shall, within ten (10) days following receipt of such Dispute Notice by the Company (the “Resolution Period”), attempt to resolve their differences with respect to the items specified in the Dispute Notice (the “Disputed Items”). If a Purchaser and the Company do not resolve all Disputed Items by the end of the Resolution Period, then all Disputed Items remaining in dispute shall be submitted to the Bankruptcy Court for resolution at or concurrent with the Confirmation Hearing. The Bankruptcy Court shall consider only those Disputed Items that such Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by such Purchaser and the Company. If a Purchaser does not timely deliver a Dispute Notice, then such Purchaser shall be deemed to have accepted and agreed to the Preliminary Closing Date Net Debt Schedule and to have waived any right to dispute the matters set forth therein.
(c) The Company shall deliver to each Purchaser a draft of the Conclusive Net Debt Adjustment Statement no later than 15 calendar days prior to the Effective Date. Each Purchaser shall be afforded an opportunity to review the Conclusive Net Debt Adjustment Statement and reasonable access to all non-privileged and non-work product documents or records or personnel used in the preparation of such statement. On or prior to close of business on the 7th calendar day following receipt of the Conclusive Net Debt Adjustment Statement, any Purchaser may deliver to the Company a notice (the “CNDAS Dispute Notice”) listing those items to which such Purchaser takes exception, which CNDAS Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which such Purchaser has delivered such list, (ii) set forth the alternative amounts that such Purchaser has calculated based on the information contained in the Conclusive Net Debt Adjustment Statement, and (iii) specifically identify such Purchaser’s proposed adjustment(s). If a Purchaser timely provides the Company with a CNDAS Dispute Notice, then such Purchaser and the Company shall attempt to resolve the items specified in the CNDAS Dispute Notice (the “CNDAS Disputed Items”) consensually. If such Purchaser and the Company do not resolve all CNDAS Disputed Items prior to the Effective Date, then for purposes of Closing and subject to subsequent adjustment consistent with the Company Bankruptcy Court’s ruling, the highest number shall deliver to Purchaser be used for purposes of any calculations set forth on the Conclusive Net Debt Adjustment Statement. Within 10 days after Closing, the Company shall file a motion for resolution by the Bankruptcy Court. The Purchasers and the Company agree to seek expedited consideration of any such dispute. The dispute submitted to the Bankruptcy Court shall be limited to only those CNDAS Disputed Items that a Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by the Purchasers and the Company. If a Purchaser does not timely deliver a CNDAS Dispute Notice, then such Purchaser shall be deemed to have accepted and agreed to the Conclusive Net Debt Adjustment Statement and to have waived any right to dispute the matters set forth therein. To the extent that one or more CNDAS Disputed Items must be submitted to the Bankruptcy Court for adjudication, the Purchasers and the Company agree that this should not delay the Effective Date or the Closing Date. Following adjudication of the dispute, appropriate adjustments shall be made to the Conclusive Net Debt Adjustment Statement, the GGO Promissory Note and the other applicable documentation to put all parties in the same economic position as if the corrected Conclusive Net Debt Adjustment Statement governed at Closing.
(d) It is the intention of the parties that releases from the any Reserve are should not intended to alter the intended allocation of value between GGO and the CompanyCompany as Claims are resolved over time. Accordingly, the Plan shall provide that that, if a GGO Promissory Note is required to be issued at Closing and there is a Reserve Surplus Amount as of the end of any fiscal quarter prior to the maturity of the GGO Promissory Note, then the principal amount of the GGO Promissory Note shall be reduced (reduced, but not below zero) , by (i) by if and to the extent that such Reserve Surplus Amount as of such date is less than or equal to the Net Debt Surplus Amount, 80% of the balance Reserve Surplus Amount, and otherwise (ii) 100% of an amount equal to the Reserve Surplus Amount; provided, however, that because this calculation may be undertaken on a periodic basis, for purposes of clauses (i) and (ii), no portion of the Reserve Surplus Amount corresponding shall be utilized to any Net Debt Surplus Amount and (ii) if after application reduce the amount of the Reserve Surplus Amount pursuant to clause (i), any Reserve Surplus Amount remains, by 100% of the remaining balance of the Reserve Surplus AmountGGO Promissory Note if it has been previously utilized for such purpose. In the event that any party requests an equitable adjustment to this formula, the other parties shall consider the request in good faith.
(e) The Plan shall provide that, if there is an Offering Premium, the principal amount of the GGO Promissory Note shall be reduced (but not below zero) by 80% of the aggregate Offering Premium on the 31st 30th day following the Closing Effective Date and from time to time thereafter upon receipt of Offering Premium until the last to occur of (x) 45 days after the Effective Date, (y) the Settlement Date, if applicable, and (z) the Bridge Note Maturity Date, if applicable.
(f) The Plan and the agreements relating to the GGO Share Distribution shall provide that from and after the Closing, the Company shall indemnify GGO and its Subsidiaries from and against 93.75% of any and all losses, claims claims, damages, liabilities and reasonable expenses to which GGO and its Subsidiaries may become subject, in each case solely to the extent directly attributable to MPC Taxes actually paid at or after in accordance with the Effective Date; provided that in no event shall the Company be required to make any indemnification payment hereunder to the extent such payment would result in aggregate payments under this Section 5.17(f) that would exceed the lower of (i) $303,750,000 terms and (ii) the then effective Excess Surplus Amount (the “Indemnity Cap”). The Plan shall provide that if GGO or its Affiliates receives any refund or realizes any reduction of its Tax liability in respect conditions of the MPC Assets for which it has received a payment or realized a benefit pursuant to this Tax Matters Agreement, GGO shall pay an amount equal to such refund or reduction in Tax liability (less any costs or Taxes incurred with respect to the receipt thereof) to the Reorganized Company within ten (10) Business Days of the receipt or realization thereof.
(g) If Subject to the provisions of the Tax Matters Agreement, if GGO is obligated to pay in cash, after utilization of any available tax attributes, any MPC Taxes with respect to in the tax year 2010 period commencing on the Effective Date and ending 36 months after the Effective Date, and the Company is not then obligated to indemnify GGO for its allocable share of such MPC Taxes as a consequence of the Indemnity CapCap (as defined in the Tax Matters Agreement), then solely with respect to such payments, the Company shall pay such loan to GGO the amount of such MPC Taxes not payable by the Company as a consequence of the Indemnity Cap and the principal amount of the GGO Promissory Note shall be increased by the amount of such payment loan and if at such time no GGO Promissory Note is outstanding, on the date of any such paymentloan, GGO shall issue in favor of the Company a promissory note in the aggregate principal amount of such payment loan on the same terms as the GGO Promissory Note.
(h) The Debtors dispute each of the Contingent and Disputed Debt Claims and have sought or will seek disallowance of such Claims in their entirety. To the extent such claims have not been ruled on by the Bankruptcy Court or settled prior to the Effective Date, then the asserted amounts of such claims will be included in calculation of the Closing Date Net Debt. In the event that, on or after the Effective Date, one or more of the Contingent and Disputed Debt Claims are either reduced or disallowed by a ruling of the Bankruptcy Court or as a result of a settlement, then the Closing Date Net Debt amount shall be adjusted to reflect such ruling or settlement within ten (10) calendar days following any such ruling or settlement (such adjusted Closing Date Net Debt to be referred to as the “Adjusted CDND”) and the GGO Note Amount and Indemnity Cap (as defined in the Tax Matters Agreement) shall be re-calculated as if the Adjusted CDND was used in the calculations for the Effective Date. To the extent that a GGO Promissory Note was issued at Closing, then, in order to place GGO and the Company in the same economic position as they would have been had the actual amount of such settlement and/or allowance been used for purposes of calculating the GGO Note Amount, the principal amount of such GGO Promissory Note will be reduced based on the new calculation using the Adjusted CDND and, to the extent applicable, any interest payments made by GGO to the Company on the GGO Promissory Note prior to such re-calculation shall be refunded in respect of such reductions and accrued but unpaid interest in respect of such reductions shall be eliminated. Similarly, in order to place GGO and the Company in the same economic position as they would have been had the actual amount of such settlement and/or allowance been used for purposes of calculating the Indemnity Cap, the Indemnity Cap shall be re-calculated and adjusted to reflect determination of the Net Debt Surplus Amount or Net Debt Excess Amount using the Adjusted CDND. Additionally, to the extent any promissory note was issued by GGO in favor of the Company pursuant to Section 5.16(g), then, in order to place GGO and the Company in the same economic position as they would have been had the actual amount of such settlement and/or allowance been used for purposes of calculating such note, (i) the principal amount of such note will be reduced based on the new calculation using the Adjusted CDND and (ii) to the extent applicable, any interest payments made by GGO to the Company on such note prior to such re-calculation shall be refunded in respect of such reductions and accrued but unpaid interest in respect of such reductions shall be eliminated. Consistent with the foregoing, the Tax Matters Agreement shall be retroactively applied using the re-calculated Indemnity Cap and any resulting amounts payable thereunder shall be promptly paid. In the event that a Bankruptcy Court order allowing, disallowing, or reducing and allowing any of the Contingent and Disputed Debt Claims is appealed, vacated or otherwise modified, then following entry of a final and nonappealable order by a court of competent jurisdiction determining the amount (if any) of the applicable Contingent and Disputed Debt Claim, the adjustment process set forth in the preceding paragraph shall be undertaken within ten (10) calendar days following such order becoming final and nonappealable.
(i) Solely for purposes of calculating whether a GGO Promissory Note is required to be issued at Closing pursuant to this Agreement, $1,000,000 shall be added to GGO Setup Costs. If a GGO Promissory Note is issued at Closing pursuant to this Agreement, then on the six-month anniversary of the Closing Date (the “Calculation Date”), (A) the then outstanding principal amount of the GGO Promissory Note shall be reduced (but not to a number less than zero) by an amount equal to the excess (if it is a positive number), if any, of $1,000,000 over the aggregate amount of cash costs and expenses, if any, incurred by the Company after the Closing Date and prior to the Calculation Date to transfer assets after Closing to GGO pursuant to Section 2.4(d) of the Separation Agreement to be entered into between the Company and GGO at or prior to Closing, and (B) if the principal amount of the GGO Promissory Note is reduced pursuant to clause (A), any interest payments made by GGO to the Company on the GGO Promissory Note prior to such reduction pursuant to clause (A) shall be refunded in respect of such reductions and accrued but unpaid interest in respect of such reduction shall be eliminated.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Pershing Square Capital Management, L.P.), Stock Purchase Agreement (General Growth Properties, Inc.)
Closing Date Net Debt. (a) The Company shall deliver to each Purchaser a schedule (the “Preliminary Closing Date Net Debt Schedule”) on or before the first Business Day that is five calendar days following approval of the Disclosure Statement, that: (i) sets forth the Company’s good faith estimate for each of the three components of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts along with a reasonably detailed explanation and calculation of each such component and (ii) discloses the Company’s good faith estimate of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts and GGO Setup Costs.
(b) Each Purchaser shall review the Preliminary Closing Date Net Debt Schedule during the Preliminary Closing Date Net Debt Review Period, during which time the Company shall allow such Purchaser reasonable access to all non-privileged or and non-work product documents or records or personnel used in the preparation of the Preliminary Closing Date Net Debt Schedule. On or prior to the Preliminary Closing Date Net Debt Review Deadline, any Purchaser may deliver to the Company a notice (the “Dispute Notice”) listing those items on the Preliminary Closing Date Net Debt Schedule to which such Purchaser takes exception, which Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which such Purchaser has delivered such list, (ii) set forth the amount of Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts that such Purchaser has calculated based on the information contained in the Preliminary Closing Date Net Debt Schedule, and (iii) specifically identify such Purchaser’s proposed adjustment(s). If a Purchaser timely provides the Company with a Dispute Notice, then such Purchaser and the Company shall, within ten (10) days following receipt of such Dispute Notice by the Company (the “Resolution Period”), attempt to resolve their differences with respect to the items specified in the Dispute Notice (the “Disputed Items”). If a Purchaser and the Company do not resolve all Disputed Items by the end of the Resolution Period, then all Disputed Items remaining in dispute shall be submitted to the Bankruptcy Court for resolution at or concurrent with the Confirmation Hearing. The Bankruptcy Court shall consider only those Disputed Items that such Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by such Purchaser and the Company. If a Purchaser does not timely deliver a Dispute Notice, then such Purchaser shall be deemed to have accepted and agreed to the Preliminary Closing Date Net Debt Schedule and to have waived any right to dispute the matters set forth therein.
(c) The Company shall deliver to each Purchaser a draft of the Conclusive Net Debt Adjustment Statement no later than 15 calendar days prior to the Effective Date. Each Purchaser shall be afforded an opportunity to review the Conclusive Net Debt Adjustment Statement and reasonable access to all non-privileged and non-work product documents or records or personnel used in the preparation of such statement. On or prior to close of business on the 7th calendar day following receipt of the Conclusive Net Debt Adjustment Statement, any Purchaser may deliver to the Company a notice (the “CNDAS Dispute Notice”) listing those items to which such Purchaser takes exception, which CNDAS Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which such Purchaser has delivered such list, (ii) set forth the alternative amounts that such Purchaser has calculated based on the information contained in the Conclusive Net Debt Adjustment Statement, and (iii) specifically identify such Purchaser’s proposed adjustment(s). If a Purchaser timely provides the Company with a CNDAS Dispute Notice, then such Purchaser and the Company shall attempt to resolve the items specified in the CNDAS Dispute Notice (the “CNDAS Disputed Items”) consensually. If such Purchaser and the Company do not resolve all CNDAS Disputed Items prior to the Effective Date, then for purposes of Closing and subject to subsequent adjustment consistent with the Company Bankruptcy Court’s ruling, the highest number shall deliver to Purchaser be used for purposes of any calculations set forth on the Conclusive Net Debt Adjustment Statement. Within 10 days after Closing, the Company shall file a motion for resolution by the Bankruptcy Court. The Purchasers and the Company agree to seek expedited consideration of any such dispute. The dispute submitted to the Bankruptcy Court shall be limited to only those CNDAS Disputed Items that a Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by the Purchasers and the Company. If a Purchaser does not timely deliver a CNDAS Dispute Notice, then such Purchaser shall be deemed to have accepted and agreed to the Conclusive Net Debt Adjustment Statement and to have waived any right to dispute the matters set forth therein. To the extent that one or more CNDAS Disputed Items must be submitted to the Bankruptcy Court for adjudication, the Purchasers and the Company agree that this should not delay the Effective Date or the Closing Date. Following adjudication of the dispute, appropriate adjustments shall be made to the Conclusive Net Debt Adjustment Statement, the GGO Promissory Note and the other applicable documentation to put all parties in the same economic position as if the corrected Conclusive Net Debt Adjustment Statement governed at Closing.
(d) It is the intention of the parties that releases from the any Reserve are should not intended to alter the intended allocation of value between GGO and the CompanyCompany as Claims are resolved over time. Accordingly, the Plan shall provide that that, if a GGO Promissory Note is required to be issued at Closing and there is a Reserve Surplus Amount as of the end of any fiscal quarter prior to the maturity of the GGO Promissory Note, then the principal amount of the GGO Promissory Note shall be reduced (reduced, but not below zero) , by (i) by if and to the extent that such Reserve Surplus Amount as of such date is less than or equal to the Net Debt Surplus Amount, 80% of the balance Reserve Surplus Amount, and otherwise (ii) 100% of an amount equal to the Reserve Surplus Amount; provided, however, that because this calculation may be undertaken on a periodic basis, for purposes of clauses (i) and (ii), no portion of the Reserve Surplus Amount corresponding shall be utilized to any Net Debt Surplus Amount and (ii) if after application reduce the amount of the Reserve Surplus Amount pursuant to clause (i), any Reserve Surplus Amount remains, by 100% of the remaining balance of the Reserve Surplus AmountGGO Promissory Note if it has been previously utilized for such purpose. In the event that any party requests an equitable adjustment to this formula, the other parties shall consider the request in good faith.
(e) The Plan shall provide that, if there is an Offering Premium, the principal amount of the GGO Promissory Note shall be reduced (but not below zero) by 80% of the aggregate Offering Premium on the 31st 30th day following the Closing Effective Date and from time to time thereafter upon receipt of Offering Premium until the last to occur of (x) 45 days after the Effective Date, (y) the Settlement Date (as defined in the Pershing Agreement), if applicable, and (z) the Bridge Note Maturity Date (as defined in the Pershing Agreement), if applicable.
(f) The Plan and the agreements relating to the GGO Share Distribution shall provide that from and after the Closing, the Company shall indemnify GGO and its Subsidiaries from and against 93.75% of any and all losses, claims claims, damages, liabilities and reasonable expenses to which GGO and its Subsidiaries may become subject, in each case solely to the extent directly attributable to MPC Taxes actually paid at or after the Effective Date; provided provided, that in no event shall the Company be required to make any indemnification payment hereunder to the extent such payment would result in aggregate payments under this Section 5.17(f5.16(f) that would exceed the lower of (i) $303,750,000 and (ii) the then effective Excess Surplus Amount (the “Indemnity Cap”). The Plan shall provide that if GGO or its Affiliates receives any refund or realizes any reduction of its Tax liability in respect of the MPC Assets for which it has received a payment or realized a benefit pursuant to this Agreement, GGO shall pay an amount equal to such refund or reduction in Tax liability (less any costs or Taxes incurred with respect to the receipt thereof) to the Reorganized Company within ten (10) Business Days of the receipt or realization thereof.
(g) If GGO is obligated to pay MPC Taxes with respect to the tax year 2010 and the Company is not then obligated to indemnify GGO as a consequence of the Indemnity Cap, then solely with respect to such payments, the Company shall pay such amount of MPC Taxes and the principal amount of the GGO Promissory Note shall be increased by the amount of such payment and if at such time no GGO Promissory Note is outstanding, on the date of any such payment, GGO shall issue in favor of the Company a promissory note in the aggregate principal amount of such payment on the same terms as the GGO Promissory Note.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Pershing Square Capital Management, L.P.), Stock Purchase Agreement (General Growth Properties Inc)
Closing Date Net Debt. (a) The Company shall deliver to each Purchaser a schedule (the “Preliminary Closing Date Net Debt Schedule”) on or before the first Business Day that is five calendar days following approval of the Disclosure Statement, that: (i) sets forth the Company’s good faith estimate for each of the three components of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts along with a reasonably detailed explanation and calculation of each such component and (ii) discloses the Company’s good faith estimate of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts and GGO Setup Costs.
(b) Each Purchaser shall review the Preliminary Closing Date Net Debt Schedule during the Preliminary Closing Date Net Debt Review Period, during which time the Company shall allow such Purchaser reasonable access to all non-privileged or and non-work product documents or records or personnel used in the preparation of the Preliminary Closing Date Net Debt Schedule. On or prior to the Preliminary Closing Date Net Debt Review Deadline, any Purchaser may deliver to the Company a notice (the “Dispute Notice”) listing those items on the Preliminary Closing Date Net Debt Schedule to which such Purchaser takes exception, which Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which such Purchaser has delivered such list, (ii) set forth the amount of Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts that such Purchaser has calculated based on the information contained in the Preliminary Closing Date Net Debt Schedule, and (iii) specifically identify such Purchaser’s proposed adjustment(s). If a Purchaser timely provides the Company with a Dispute Notice, then such Purchaser and the Company shall, within ten (10) days following receipt of such Dispute Notice by the Company (the “Resolution Period”), attempt to resolve their differences with respect to the items specified in the Dispute Notice (the “Disputed Items”). If a Purchaser and the Company do not resolve all Disputed Items by the end of the Resolution Period, then all Disputed Items remaining in dispute shall be submitted to the Bankruptcy Court for resolution at or concurrent with the Confirmation Hearing. The Bankruptcy Court shall consider only those Disputed Items that such Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by such Purchaser and the Company. If a Purchaser does not timely deliver a Dispute Notice, then such Purchaser shall be deemed to have accepted and agreed to the Preliminary Closing Date Net Debt Schedule and to have waived any right to dispute the matters set forth therein.
(c) The Company shall deliver to each Purchaser a draft of the Conclusive Net Debt Adjustment Statement no later than 15 calendar days prior to the Effective Date. Each Purchaser shall be afforded an opportunity to review the Conclusive Net Debt Adjustment Statement and reasonable access to all non-privileged and non-work product documents or records or personnel used in the preparation of such statement. On or prior to close of business on the 7th calendar day following receipt of the Conclusive Net Debt Adjustment Statement, any Purchaser may deliver to the Company a notice (the “CNDAS Dispute Notice”) listing those items to which such Purchaser takes exception, which CNDAS Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which such Purchaser has delivered such list, (ii) set forth the alternative amounts that such Purchaser has calculated based on the information contained in the Conclusive Net Debt Adjustment Statement, and (iii) specifically identify such Purchaser’s proposed adjustment(s). If a Purchaser timely provides the Company with a CNDAS Dispute Notice, then such Purchaser and the Company shall attempt to resolve the items specified in the CNDAS Dispute Notice (the “CNDAS Disputed Items”) consensually. If such Purchaser and the Company do not resolve all CNDAS Disputed Items prior to the Effective Date, then for purposes of Closing and subject to subsequent adjustment consistent with the Company Bankruptcy Court’s ruling, the highest number shall deliver to Purchaser be used for purposes of any calculations set forth on the Conclusive Net Debt Adjustment Statement. Within 10 days after Closing, the Company shall file a motion for resolution by the Bankruptcy Court. The Purchasers and the Company agree to seek expedited consideration of any such dispute. The dispute submitted to the Bankruptcy Court shall be limited to only those CNDAS Disputed Items that a Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by the Purchasers and the Company. If a Purchaser does not timely deliver a CNDAS Dispute Notice, then such Purchaser shall be deemed to have accepted and agreed to the Conclusive Net Debt Adjustment Statement and to have waived any right to dispute the matters set forth therein. To the extent that one or more CNDAS Disputed Items must be submitted to the Bankruptcy Court for adjudication, the Purchasers and the Company agree that this should not delay the Effective Date or the Closing Date. Following adjudication of the dispute, appropriate adjustments shall be made to the Conclusive Net Debt Adjustment Statement, the GGO Promissory Note and the other applicable documentation to put all parties in the same economic position as if the corrected Conclusive Net Debt Adjustment Statement governed at Closing.
(d) It is the intention of the parties that releases from the any Reserve are should not intended to alter the intended allocation of value between GGO and the CompanyCompany as Claims are resolved over time. Accordingly, the Plan shall provide that that, if a GGO Promissory Note is required to be issued at Closing and there is a Reserve Surplus Amount as of the end of any fiscal quarter prior to the maturity of the GGO Promissory Note, then the principal amount of the GGO Promissory Note shall be reduced (reduced, but not below zero) , by (i) by if and to the extent that such Reserve Surplus Amount as of such date is less than or equal to the Net Debt Surplus Amount, 80% of the balance Reserve Surplus Amount, and otherwise (ii) 100% of an amount equal to the Reserve Surplus Amount; provided, however, that because this calculation may be undertaken on a periodic basis, for purposes of clauses (i) and (ii), no portion of the Reserve Surplus Amount corresponding shall be utilized to any Net Debt Surplus Amount and (ii) if after application reduce the amount of the Reserve Surplus Amount pursuant to clause (i), any Reserve Surplus Amount remains, by 100% of the remaining balance of the Reserve Surplus AmountGGO Promissory Note if it has been previously utilized for such purpose. In the event that any party requests an equitable adjustment to this formula, the other parties shall consider the request in good faith.
(e) The Plan shall provide that, if there is an Offering Premium, the principal amount of the GGO Promissory Note shall be reduced (but not below zero) by 80% of the aggregate Offering Premium on the 31st 30th day following the Closing Effective Date and from time to time thereafter upon receipt of Offering Premium until the last to occur of (x) 45 days after the Effective Date, (y) the Settlement Date, if applicable, and (z) the Bridge Note Maturity Date, if applicable.
(f) The Plan and the agreements relating to the GGO Share Distribution shall provide that from and after the Closing, the Company shall indemnify GGO and its Subsidiaries from and against 93.75% of any and all losses, claims claims, damages, liabilities and reasonable expenses to which GGO and its Subsidiaries may become subject, in each case solely to the extent directly attributable to MPC Taxes actually paid at or after the Effective Date; provided provided, that in no event shall the Company be required to make any indemnification payment hereunder to the extent such payment would result in aggregate payments under this Section 5.17(f5.16(f) that would exceed the lower of (i) $303,750,000 and (ii) the then effective Excess Surplus Amount (the “Indemnity Cap”). The Plan shall provide that if GGO or its Affiliates receives any refund or realizes any reduction of its Tax liability in respect of the MPC Assets for which it has received a payment or realized a benefit pursuant to this Agreement, GGO shall pay an amount equal to such refund or reduction in Tax liability (less any costs or Taxes incurred with respect to the receipt thereof) to the Reorganized Company within ten (10) Business Days of the receipt or realization thereof.
(g) If GGO is obligated to pay MPC Taxes with respect to the tax year 2010 and the Company is not then obligated to indemnify GGO as a consequence of the Indemnity Cap, then solely with respect to such payments, the Company shall pay such amount of MPC Taxes and the principal amount of the GGO Promissory Note shall be increased by the amount of such payment and if at such time no GGO Promissory Note is outstanding, on the date of any such payment, GGO shall issue in favor of the Company a promissory note in the aggregate principal amount of such payment on the same terms as the GGO Promissory Note.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Pershing Square Capital Management, L.P.), Stock Purchase Agreement (General Growth Properties Inc)
Closing Date Net Debt. (a) The Company shall deliver to Purchaser a schedule (the “Preliminary Closing Date Net Debt Schedule”) on or before the first Business Day that is five calendar days following approval of the Disclosure Statement, that: (i) sets forth the Company’s good faith estimate for each of the three components of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts along with a reasonably detailed explanation and calculation of each such component and (ii) discloses the Company’s good faith estimate of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts and GGO Setup Costs.
(b) Purchaser shall review the Preliminary Closing Date Net Debt Schedule during the Preliminary Closing Date Net Debt Review Period, during which time the Company shall allow Purchaser reasonable access to all non-privileged or and non-work product documents or records or personnel used in the preparation of the Preliminary Closing Date Net Debt Schedule. On or prior to the Preliminary Closing Date Net Debt Review Deadline, Purchaser may deliver to the Company a notice (the “Dispute Notice”) listing those items on the Preliminary Closing Date Net Debt Schedule to which Purchaser takes exception, which Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which Purchaser has delivered such list, (ii) set forth the amount of Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts that Purchaser has calculated based on the information contained in the Preliminary Closing Date Net Debt Schedule, and (iii) specifically identify Purchaser’s proposed adjustment(s). If Purchaser timely provides the Company with a Dispute Notice, then Purchaser and the Company shall, within ten (10) days following receipt of such Dispute Notice by the Company (the “Resolution Period”), attempt to resolve their differences with respect to the items specified in the Dispute Notice (the “Disputed Items”). If Purchaser and the Company do not resolve all Disputed Items by the end of the Resolution Period, then all Disputed Items remaining in dispute shall be submitted to the Bankruptcy Court for resolution at or concurrent with the Confirmation Hearing. The Bankruptcy Court shall consider only those Disputed Items that Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by Purchaser and the Company. If Purchaser does not timely deliver a Dispute Notice, then Purchaser shall be deemed to have accepted and agreed to the Preliminary Closing Date Net Debt Schedule and to have waived any right to dispute the matters set forth therein.
(c) The Company shall deliver to Purchaser a draft of the Conclusive Net Debt Adjustment Statement no later than 15 calendar days prior to the Effective Date. Purchaser shall be afforded an opportunity to review the Conclusive Net Debt Adjustment Statement and reasonable access to all non-privileged and non-work product documents or records or personnel used in the preparation of such statement. On or prior to close of business on the 7th calendar day following receipt of the Conclusive Net Debt Adjustment Statement, Purchaser may deliver to the Company a notice (the “CNDAS Dispute Notice”) listing those items to which Purchaser takes exception, which CNDAS Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which Purchaser has delivered such list, (ii) set forth the alternative amounts that Purchaser has calculated based on the information contained in the Conclusive Net Debt Adjustment Statement, and (iii) specifically identify Purchaser’s proposed adjustment(s). If Purchaser timely provides the Company with a CNDAS Dispute Notice, then Purchaser and the Company shall attempt to resolve the items specified in the CNDAS Dispute Notice (the “CNDAS Disputed Items”) consensually. If Purchaser and the Company do not resolve all CNDAS Disputed Items prior to the Effective Date, then for purposes of Closing and subject to subsequent adjustment consistent with the Company Bankruptcy Court’s ruling, the highest number shall deliver to Purchaser be used for purposes of any calculations set forth on the Conclusive Net Debt Adjustment Statement. Within 10 days after Closing, the Company shall file a motion for resolution by the Bankruptcy Court. Purchaser and the Company agree to seek expedited consideration of any such dispute. The dispute submitted to the Bankruptcy Court shall be limited to only those CNDAS Disputed Items that Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by Purchaser and the Company. If Purchaser does not timely deliver a CNDAS Dispute Notice, then Purchaser shall be deemed to have accepted and agreed to the Conclusive Net Debt Adjustment Statement and to have waived any right to dispute the matters set forth therein. To the extent that one or more CNDAS Disputed Items must be submitted to the Bankruptcy Court for adjudication, Purchaser and the Company agree that this should not delay the Effective Date or the Closing Date. Following adjudication of the dispute, appropriate adjustments shall be made to the Conclusive Net Debt Adjustment Statement, the GGO Promissory Note and the other applicable documentation to put all parties in the same economic position as if the corrected Conclusive Net Debt Adjustment Statement governed at Closing.
(d) It is the intention of the parties that releases from the any Reserve are should not intended to alter the intended allocation of value between GGO and the CompanyCompany as Claims are resolved over time. Accordingly, the Plan shall provide that that, if a GGO Promissory Note is required to be issued at Closing and there is a Reserve Surplus Amount as of the end of any fiscal quarter prior to the maturity of the GGO Promissory Note, then the principal amount of the GGO Promissory Note shall be reduced (reduced, but not below zero) , by (i) by if and to the extent that such Reserve Surplus Amount as of such date is less than or equal to the Net Debt Surplus Amount, 80% of the balance Reserve Surplus Amount, and otherwise (ii) 100% of an amount equal to the Reserve Surplus Amount; provided, however, that because this calculation may be undertaken on a periodic basis, for purposes of clauses (i) and (ii), no portion of the Reserve Surplus Amount corresponding shall be utilized to any Net Debt Surplus Amount and (ii) if after application reduce the amount of the Reserve Surplus Amount pursuant to clause (i), any Reserve Surplus Amount remains, by 100% of the remaining balance of the Reserve Surplus AmountGGO Promissory Note if it has been previously utilized for such purpose. In the event that any party requests an equitable adjustment to this formula, the other parties shall consider the request in good faith.
(e) The Plan shall provide that, if there is an Offering Premium, the principal amount of the GGO Promissory Note shall be reduced (but not below zero) by 80% of the aggregate Offering Premium on the 31st 30th day following the Closing Effective Date and from time to time thereafter upon receipt of Offering Premium until the last to occur of (x) 45 days after the Effective Date, (y) the Settlement Date (as defined in the Pershing Agreement), if applicable, and (z) the Bridge Note Maturity Date (as defined in the Pershing Agreement).
(f) The Plan and the agreements relating to the GGO Share Distribution shall provide that from and after the Closing, the Company shall indemnify GGO and its Subsidiaries from and against 93.75% of any and all losses, claims claims, damages, liabilities and reasonable expenses to which GGO and its Subsidiaries may become subject, in each case solely to the extent directly attributable to MPC Taxes actually paid at or after the Effective Date; provided provided, that in no event shall the Company be required to make any indemnification payment hereunder to the extent such payment would result in aggregate payments under this Section 5.17(f) that would exceed the lower of (i) $303,750,000 and (ii) the then effective Excess Surplus Amount (the “Indemnity Cap”). The Plan shall provide that if GGO or its Affiliates receives any refund or realizes any reduction of its Tax liability in respect of the MPC Assets for which it has received a payment or realized a benefit pursuant to this Agreement, GGO shall pay an amount equal to such refund or reduction in Tax liability (less any costs or Taxes incurred with respect to the receipt thereof) to the Reorganized Company within ten (10) Business Days of the receipt or realization thereof.
(g) If GGO is obligated to pay MPC Taxes with respect to the tax year 2010 and the Company is not then obligated to indemnify GGO as a consequence of the Indemnity Cap, then solely with respect to such payments, the Company shall pay such amount of MPC Taxes and the principal amount of the GGO Promissory Note shall be increased by the amount of such payment and if at such time no GGO Promissory Note is outstanding, on the date of any such payment, GGO shall issue in favor of the Company a promissory note in the aggregate principal amount of such payment on the same terms as the GGO Promissory Note.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Pershing Square Capital Management, L.P.), Investment Agreement (General Growth Properties Inc)
Closing Date Net Debt. (a) The Company shall deliver to Purchaser a schedule (the “Preliminary Closing Date Net Debt Schedule”) on or before the first Business Day that is five calendar days following approval of the Disclosure Statement, that: (i) sets forth the Company’s good faith estimate for each of the three components of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts along with a reasonably detailed explanation and calculation of each such component and (ii) discloses the Company’s good faith estimate of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts and GGO Setup Costs.
(b) Purchaser shall review the Preliminary Closing Date Net Debt Schedule during the Preliminary Closing Date Net Debt Review Period, during which time the Company shall allow Purchaser reasonable access to all non-privileged or and non-work product documents or records or personnel used in the preparation of the Preliminary Closing Date Net Debt Schedule. On or prior to the Preliminary Closing Date Net Debt Review Deadline, Purchaser may deliver to the Company a notice (the “Dispute Notice”) listing those items on the Preliminary Closing Date Net Debt Schedule to which Purchaser takes exception, which Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which Purchaser has delivered such list, (ii) set forth the amount of Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts that Purchaser has calculated based on the information contained in the Preliminary Closing Date Net Debt Schedule, and (iii) specifically identify Purchaser’s proposed adjustment(s). If Purchaser timely provides the Company with a Dispute Notice, then Purchaser and the Company shall, within ten (10) days following receipt of such Dispute Notice by the Company (the “Resolution Period”), attempt to resolve their differences with respect to the items specified in the Dispute Notice (the “Disputed Items”). If Purchaser and the Company do not resolve all Disputed Items by the end of the Resolution Period, then all Disputed Items remaining in dispute shall be submitted to the Bankruptcy Court for resolution at or concurrent with the Confirmation Hearing. The Bankruptcy Court shall consider only those Disputed Items that Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by Purchaser and the Company. If Purchaser does not timely deliver a Dispute Notice, then Purchaser shall be deemed to have accepted and agreed to the Preliminary Closing Date Net Debt Schedule and to have waived any right to dispute the matters set forth therein.
(c) The Company shall deliver to Purchaser a draft of the Conclusive Net Debt Adjustment Statement no later than 15 calendar days prior to the Effective Date. Purchaser shall be afforded an opportunity to review the Conclusive Net Debt Adjustment Statement and reasonable access to all non-privileged and non-work product documents or records or personnel used in the preparation of such statement. On or prior to close of business on the 7th calendar day following receipt of the Conclusive Net Debt Adjustment Statement, Purchaser may deliver to the Company a notice (the “CNDAS Dispute Notice”) listing those items to which Purchaser takes exception, which CNDAS Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which Purchaser has delivered such list, (ii) set forth the alternative amounts that Purchaser has calculated based on the information contained in the Conclusive Net Debt Adjustment Statement, and (iii) specifically identify Purchaser’s proposed adjustment(s). If Purchaser timely provides the Company with a CNDAS Dispute Notice, then Purchaser and the Company shall attempt to resolve the items specified in the CNDAS Dispute Notice (the “CNDAS Disputed Items”) consensually. If Purchaser and the Company do not resolve all CNDAS Disputed Items prior to the Effective Date, then for purposes of Closing and subject to subsequent adjustment consistent with the Company Bankruptcy Court’s ruling, the highest number shall deliver to Purchaser be used for purposes of any calculations set forth on the Conclusive Net Debt Adjustment Statement. Within 10 days after Closing, the Company shall file a motion for resolution by the Bankruptcy Court. Purchaser and the Company agree to seek expedited consideration of any such dispute. The dispute submitted to the Bankruptcy Court shall be limited to only those CNDAS Disputed Items that Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by Purchaser and the Company. If Purchaser does not timely deliver a CNDAS Dispute Notice, then Purchaser shall be deemed to have accepted and agreed to the Conclusive Net Debt Adjustment Statement and to have waived any right to dispute the matters set forth therein. To the extent that one or more CNDAS Disputed Items must be submitted to the Bankruptcy Court for adjudication, Purchaser and the Company agree that this should not delay the Effective Date or the Closing Date. Following adjudication of the dispute, appropriate adjustments shall be made to the Conclusive Net Debt Adjustment Statement, the GGO Promissory Note and the other applicable documentation to put all parties in the same economic position as if the corrected Conclusive Net Debt Adjustment Statement governed at Closing.
(d) It is the intention of the parties that releases from the any Reserve are should not intended to alter the intended allocation of value between GGO and the CompanyCompany as Claims are resolved over time. Accordingly, the Plan shall provide that that, if a GGO Promissory Note is required to be issued at Closing and there is a Reserve Surplus Amount as of the end of any fiscal quarter prior to the maturity of the GGO Promissory Note, then the principal amount of the GGO Promissory Note shall be reduced (reduced, but not below zero) , by (i) by if and to the extent that such Reserve Surplus Amount as of such date is less than or equal to the Net Debt Surplus Amount, 80% of the balance Reserve Surplus Amount, and otherwise (ii) 100% of an amount equal to the Reserve Surplus Amount; provided, however, that because this calculation may be undertaken on a periodic basis, for purposes of clauses (i) and (ii), no portion of the Reserve Surplus Amount corresponding shall be utilized to any Net Debt Surplus Amount and (ii) if after application reduce the amount of the Reserve Surplus Amount pursuant to clause (i), any Reserve Surplus Amount remains, by 100% of the remaining balance of the Reserve Surplus AmountGGO Promissory Note if it has been previously utilized for such purpose. In the event that any party requests an equitable adjustment to this formula, the other parties shall consider the request in good faith.
(e) The Plan shall provide that, if there is an Offering Premium, the principal amount of the GGO Promissory Note shall be reduced (but not below zero) by 80% of the aggregate Offering Premium on the 31st 30th day following the Closing Effective Date and from time to time thereafter upon receipt of Offering Premium until the last to occur of (x) 45 days after the Effective Date, (y) the Settlement Date (as defined in the Pershing Agreement), if applicable, and (z) the Bridge Note Maturity Date (as defined in the Pershing Agreement), if applicable.
(f) The Plan and the agreements relating to the GGO Share Distribution shall provide that from and after the Closing, the Company shall indemnify GGO and its Subsidiaries from and against 93.75% of any and all losses, claims claims, damages, liabilities and reasonable expenses to which GGO and its Subsidiaries may become subject, in each case solely to the extent directly attributable to MPC Taxes actually paid at or after in accordance with the Effective Date; provided that in no event shall the Company be required to make any indemnification payment hereunder to the extent such payment would result in aggregate payments under this Section 5.17(f) that would exceed the lower of (i) $303,750,000 terms and (ii) the then effective Excess Surplus Amount (the “Indemnity Cap”). The Plan shall provide that if GGO or its Affiliates receives any refund or realizes any reduction of its Tax liability in respect conditions of the MPC Assets for which it has received a payment or realized a benefit pursuant to this Tax Matters Agreement, GGO shall pay an amount equal to such refund or reduction in Tax liability (less any costs or Taxes incurred with respect to the receipt thereof) to the Reorganized Company within ten (10) Business Days of the receipt or realization thereof.
(g) If Subject to the provisions of the Tax Matters Agreement, if GGO is obligated to pay in cash, after utilization of any available tax attributes, any MPC Taxes with respect to in the tax year 2010 period commencing on the Effective Date and ending 36 months after the Effective Date, and the Company is not then obligated to indemnify GGO for its allocable share of such MPC Taxes as a consequence of the Indemnity CapCap (as defined in the Tax Matters Agreement), then solely with respect to such payments, the Company shall pay such loan to GGO the amount of such MPC Taxes not payable by the Company as a consequence of the Indemnity Cap and the principal amount of the GGO Promissory Note shall be increased by the amount of such payment loan and if at such time no GGO Promissory Note is outstanding, on the date of any such paymentloan, GGO shall issue in favor of the Company a promissory note in the aggregate principal amount of such payment loan on the same terms as the GGO Promissory Note.
(h) The Debtors dispute each of the Contingent and Disputed Debt Claims and have sought or will seek disallowance of such Claims in their entirety. To the extent such claims have not been ruled on by the Bankruptcy Court or settled prior to the Effective Date, then the asserted amounts of such claims will be included in calculation of the Closing Date Net Debt. In the event that, on or after the Effective Date, one or more of the Contingent and Disputed Debt Claims are either reduced or disallowed by a ruling of the Bankruptcy Court or as a result of a settlement, then the Closing Date Net Debt amount shall be adjusted to reflect such ruling or settlement within ten (10) calendar days following any such ruling or settlement (such adjusted Closing Date Net Debt to be referred to as the “Adjusted CDND”) and the GGO Note Amount and Indemnity Cap (as defined in the Tax Matters Agreement) shall be re-calculated as if the Adjusted CDND was used in the calculations for the Effective Date. To the extent that a GGO Promissory Note was issued at Closing, then, in order to place GGO and the Company in the same economic position as they would have been had the actual amount of such settlement and/or allowance been used for purposes of calculating the GGO Note Amount, the principal amount of such GGO Promissory Note will be reduced based on the new calculation using the Adjusted CDND and, to the extent applicable, any interest payments made by GGO to the Company on the GGO Promissory Note prior to such re-calculation shall be refunded in respect of such reductions and accrued but unpaid interest in respect of such reductions shall be eliminated. Similarly, in order to place GGO and the Company in the same economic position as they would have been had the actual amount of such settlement and/or allowance been used for purposes of calculating the Indemnity Cap, the Indemnity Cap shall be re-calculated and adjusted to reflect determination of the Net Debt Surplus Amount or Net Debt Excess Amount using the Adjusted CDND. Additionally, to the extent any promissory note was issued by GGO in favor of the Company pursuant to Section 5.17(g), then, in order to place GGO and the Company in the same economic position as they would have been had the actual amount of such settlement and/or allowance been used for purposes of calculating such note, (i) the principal amount of such note will be reduced based on the new calculation using the Adjusted CDND and (ii) to the extent applicable, any interest payments made by GGO to the Company on such note prior to such re-calculation shall be refunded in respect of such reductions and accrued but unpaid interest in respect of such reductions shall be eliminated. Consistent with the foregoing, the Tax Matters Agreement shall be retroactively applied using the re-calculated Indemnity Cap and any resulting amounts payable thereunder shall be promptly paid. In the event that a Bankruptcy Court order allowing, disallowing, or reducing and allowing any of the Contingent and Disputed Debt Claims is appealed, vacated or otherwise modified, then following entry of a final and nonappealable order by a court of competent jurisdiction determining the amount (if any) of the applicable Contingent and Disputed Debt Claim, the adjustment process set forth in the preceding paragraph shall be undertaken within ten (10) calendar days following such order becoming final and nonappealable.
(i) Solely for purposes of calculating whether a GGO Promissory Note is required to be issued at Closing pursuant to this Agreement, $1,000,000 shall be added to GGO Setup Costs. If a GGO Promissory Note is issued at Closing pursuant to this Agreement, then on the six-month anniversary of the Closing Date (the “Calculation Date”), (A) the then outstanding principal amount of the GGO Promissory Note shall be reduced (but not to a number less than zero) by an amount equal to the excess (if it is a positive number), if any, of $1,000,000 over the aggregate amount of cash costs and expenses, if any, incurred by the Company after the Closing Date and prior to the Calculation Date to transfer assets after Closing to GGO pursuant to Section 2.4(d) of the Separation Agreement to be entered into between the Company and GGO at or prior to Closing, and (B) if the principal amount of the GGO Promissory Note is reduced pursuant to clause (A), any interest payments made by GGO to the Company on the GGO Promissory Note prior to such reduction pursuant to clause (A) shall be refunded in respect of such reductions and accrued but unpaid interest in respect of such reduction shall be eliminated.
Appears in 1 contract
Samples: Cornerstone Investment Agreement (General Growth Properties, Inc.)
Closing Date Net Debt. (a) The Company shall deliver to each Purchaser a schedule (the “Preliminary Closing Date Net Debt Schedule”) on or before the first Business Day that is five calendar days following approval of the Disclosure Statement, that: (i) sets forth the Company’s good faith estimate for each of the three components of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts along with a reasonably detailed explanation and calculation of each such component and (ii) discloses the Company’s good faith estimate of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts and GGO Setup Costs.
(b) Each Purchaser shall review the Preliminary Closing Date Net Debt Schedule during the Preliminary Closing Date Net Debt Review Period, during which time the Company shall allow such Purchaser reasonable access to all non-privileged or and non-work product documents or records or personnel used in the preparation of the Preliminary Closing Date Net Debt Schedule. On or prior to the Preliminary Closing Date Net Debt Review Deadline, any Purchaser may deliver to the Company a notice (the “Dispute Notice”) listing those items on the Preliminary Closing Date Net Debt Schedule to which such Purchaser takes exception, which Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which such Purchaser has delivered such list, (ii) set forth the amount of Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts that such Purchaser has calculated based on the information contained in the Preliminary Closing Date Net Debt Schedule, and (iii) specifically identify such Purchaser’s proposed adjustment(s). If a Purchaser timely provides the Company with a Dispute Notice, then such Purchaser and the Company shall, within ten (10) days following receipt of such Dispute Notice by the Company (the “Resolution Period”), attempt to resolve their differences with respect to the items specified in the Dispute Notice (the “Disputed Items”). If a Purchaser and the Company do not resolve all Disputed Items by the end of the Resolution Period, then all Disputed Items remaining in dispute shall be submitted to the Bankruptcy Court for resolution at or concurrent with the Confirmation Hearing. The Bankruptcy Court shall consider only those Disputed Items that such Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by such Purchaser and the Company. If a Purchaser does not timely deliver a Dispute Notice, then such Purchaser shall be deemed to have accepted and agreed to the Preliminary Closing Date Net Debt Schedule and to have waived any right to dispute the matters set forth therein.
(c) The Company shall deliver to each Purchaser a draft of the Conclusive Net Debt Adjustment Statement no later than 15 calendar days prior to the Effective Date. Each Purchaser shall be afforded an opportunity to review the Conclusive Net Debt Adjustment Statement and reasonable access to all non-privileged and non-work product documents or records or personnel used in the preparation of such statement. On or prior to close of business on the 7th calendar day following receipt of the Conclusive Net Debt Adjustment Statement, any Purchaser may deliver to the Company a notice (the “CNDAS Dispute Notice”) listing those items to which such Purchaser takes exception, which CNDAS Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which such Purchaser has delivered such list, (ii) set forth the alternative amounts that such Purchaser has calculated based on the information contained in the Conclusive Net Debt Adjustment Statement, and (iii) specifically identify such Purchaser’s proposed adjustment(s). If a Purchaser timely provides the Company with a CNDAS Dispute Notice, then such Purchaser and the Company shall attempt to resolve the items specified in the CNDAS Dispute Notice (the “CNDAS Disputed Items”) consensually. If such Purchaser and the Company do not resolve all CNDAS Disputed Items prior to the Effective Date, then for purposes of Closing and subject to subsequent adjustment consistent with the Company Bankruptcy Court’s ruling, the highest number shall deliver to Purchaser be used for purposes of any calculations set forth on the Conclusive Net Debt Adjustment Statement. Within 10 days after Closing, the Company shall file a motion for resolution by the Bankruptcy Court. The Purchasers and the Company agree to seek expedited consideration of any such dispute. The dispute submitted to the Bankruptcy Court shall be limited to only those CNDAS Disputed Items that a Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by the Purchasers and the Company. If a Purchaser does not timely deliver a CNDAS Dispute Notice, then such Purchaser shall be deemed to have accepted and agreed to the Conclusive Net Debt Adjustment Statement and to have waived any right to dispute the matters set forth therein. To the extent that one or more CNDAS Disputed Items must be submitted to the Bankruptcy Court for adjudication, the Purchasers and the Company agree that this should not delay the Effective Date or the Closing Date. Following adjudication of the dispute, appropriate adjustments shall be made to the Conclusive Net Debt Adjustment Statement, the GGO Promissory Note and the other applicable documentation to put all parties in the same economic position as if the corrected Conclusive Net Debt Adjustment Statement governed at Closing.
(d) It is the intention of the parties that releases from the any Reserve are should not intended to alter the intended allocation of value between GGO and the CompanyCompany as Claims are resolved over time. Accordingly, the Plan shall provide that that, if a GGO Promissory Note is required to be issued at Closing and there is a Reserve Surplus Amount as of the end of any fiscal quarter prior to the maturity of the GGO Promissory Note, then the principal amount of the GGO Promissory Note shall be reduced (reduced, but not below zero) , by (i) by if and to the extent that such Reserve Surplus Amount as of such date is less than or equal to the Net Debt Surplus Amount, 80% of the balance Reserve Surplus Amount, and otherwise (ii) 100% of an amount equal to the Reserve Surplus Amount; provided, however, that because this calculation may be undertaken on a periodic basis, for purposes of clauses (i) and (ii), no portion of the Reserve Surplus Amount corresponding shall be utilized to any Net Debt Surplus Amount and (ii) if after application reduce the amount of the Reserve Surplus Amount pursuant to clause (i), any Reserve Surplus Amount remains, by 100% of the remaining balance of the Reserve Surplus AmountGGO Promissory Note if it has been previously utilized for such purpose. In the event that any party requests an equitable adjustment to this formula, the other parties shall consider the request in good faith.
(e) The Plan shall provide that, if there is an Offering Premium, the principal amount of the GGO Promissory Note shall be reduced (but not below zero) by 80% of the aggregate Offering Premium on the 31st 30th day following the Closing Effective Date and from time to time thereafter upon receipt of Offering Premium until the last to occur of (x) 45 days after the Effective Date, (y) the Settlement Date (as defined in the Pershing Agreement), if applicable, and (z) the Bridge Note Maturity Date (as defined in the Pershing Agreement), if applicable.
(f) The Plan and the agreements relating to the GGO Share Distribution shall provide that from and after the Closing, the Company shall indemnify GGO and its Subsidiaries from and against 93.75% of any and all losses, claims claims, damages, liabilities and reasonable expenses to which GGO and its Subsidiaries may become subject, in each case solely to the extent directly attributable to MPC Taxes actually paid at or after in accordance with the Effective Date; provided that in no event shall the Company be required to make any indemnification payment hereunder to the extent such payment would result in aggregate payments under this Section 5.17(f) that would exceed the lower of (i) $303,750,000 terms and (ii) the then effective Excess Surplus Amount (the “Indemnity Cap”). The Plan shall provide that if GGO or its Affiliates receives any refund or realizes any reduction of its Tax liability in respect conditions of the MPC Assets for which it has received a payment or realized a benefit pursuant to this Tax Matters Agreement, GGO shall pay an amount equal to such refund or reduction in Tax liability (less any costs or Taxes incurred with respect to the receipt thereof) to the Reorganized Company within ten (10) Business Days of the receipt or realization thereof.
(g) If Subject to the provisions of the Tax Matters Agreement, if GGO is obligated to pay in cash, after utilization of any available tax attributes, any MPC Taxes with respect to in the tax year 2010 period commencing on the Effective Date and ending 36 months after the Effective Date, and the Company is not then obligated to indemnify GGO for its allocable share of such MPC Taxes as a consequence of the Indemnity CapCap (as defined in the Tax Matters Agreement), then solely with respect to such payments, the Company shall pay such loan to GGO the amount of such MPC Taxes not payable by the Company as a consequence of the Indemnity Cap and the principal amount of the GGO Promissory Note shall be increased by the amount of such payment loan and if at such time no GGO Promissory Note is outstanding, on the date of any such paymentloan, GGO shall issue in favor of the Company a promissory note in the aggregate principal amount of such payment loan on the same terms as the GGO Promissory Note.
(h) The Debtors dispute each of the Contingent and Disputed Debt Claims and have sought or will seek disallowance of such Claims in their entirety. To the extent such claims have not been ruled on by the Bankruptcy Court or settled prior to the Effective Date, then the asserted amounts of such claims will be included in calculation of the Closing Date Net Debt. In the event that, on or after the Effective Date, one or more of the Contingent and Disputed Debt Claims are either reduced or disallowed by a ruling of the Bankruptcy Court or as a result of a settlement, then the Closing Date Net Debt amount shall be adjusted to reflect such ruling or settlement within ten (10) calendar days following any such ruling or settlement (such adjusted Closing Date Net Debt to be referred to as the “Adjusted CDND”) and the GGO Note Amount and Indemnity Cap (as defined in the Tax Matters Agreement) shall be re-calculated as if the Adjusted CDND was used in the calculations for the Effective Date. To the extent that a GGO Promissory Note was issued at Closing, then, in order to place GGO and the Company in the same economic position as they would have been had the actual amount of such settlement and/or allowance been used for purposes of calculating the GGO Note Amount, the principal amount of such GGO Promissory Note will be reduced based on the new calculation using the Adjusted CDND and, to the extent applicable, any interest payments made by GGO to the Company on the GGO Promissory Note prior to such re-calculation shall be refunded in respect of such reductions and accrued but unpaid interest in respect of such reductions shall be eliminated. Similarly, in order to place GGO and the Company in the same economic position as they would have been had the actual amount of such settlement and/or allowance been used for purposes of calculating the Indemnity Cap, the Indemnity Cap shall be re-calculated and adjusted to reflect determination of the Net Debt Surplus Amount or Net Debt Excess Amount using the Adjusted CDND. Additionally, to the extent any promissory note was issued by GGO in favor of the Company pursuant to Section 5.16(g), then, in order to place GGO and the Company in the same economic position as they would have been had the actual amount of such settlement and/or allowance been used for purposes of calculating such note, (i) the principal amount of such note will be reduced based on the new calculation using the Adjusted CDND and (ii) to the extent applicable, any interest payments made by GGO to the Company on such note prior to such re-calculation shall be refunded in respect of such reductions and accrued but unpaid interest in respect of such reductions shall be eliminated. Consistent with the foregoing, the Tax Matters Agreement shall be retroactively applied using the re-calculated Indemnity Cap and any resulting amounts payable thereunder shall be promptly paid. In the event that a Bankruptcy Court order allowing, disallowing, or reducing and allowing any of the Contingent and Disputed Debt Claims is appealed, vacated or otherwise modified, then following entry of a final and nonappealable order by a court of competent jurisdiction determining the amount (if any) of the applicable Contingent and Disputed Debt Claim, the adjustment process set forth in the preceding paragraph shall be undertaken within ten (10) calendar days following such order becoming final and nonappealable.
(i) Solely for purposes of calculating whether a GGO Promissory Note is required to be issued at Closing pursuant to this Agreement, $1,000,000 shall be added to GGO Setup Costs. If a GGO Promissory Note is issued at Closing pursuant to this Agreement, then on the six-month anniversary of the Closing Date (the “Calculation Date”), (A) the then outstanding principal amount of the GGO Promissory Note shall be reduced (but not to a number less than zero) by an amount equal to the excess (if it is a positive number), if any, of $1,000,000 over the aggregate amount of cash costs and expenses, if any, incurred by the Company after the Closing Date and prior to the Calculation Date to transfer assets after Closing to GGO pursuant to Section 2.4(d) of the Separation Agreement to be entered into between the Company and GGO at or prior to Closing, and (B) if the principal amount of the GGO Promissory Note is reduced pursuant to clause (A), any interest payments made by GGO to the Company on the GGO Promissory Note prior to such reduction pursuant to clause (A) shall be refunded in respect of such reductions and accrued but unpaid interest in respect of such reduction shall be eliminated.
Appears in 1 contract
Samples: Stock Purchase Agreement (General Growth Properties, Inc.)
Closing Date Net Debt. (a) The Company shall deliver to Purchaser a schedule (the “Preliminary Closing Date Net Debt Schedule”) on or before the first Business Day that is five calendar days following approval of the Disclosure Statement, that: (i) sets forth the Company’s good faith estimate for each of the three components of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts along with a reasonably detailed explanation and calculation of each such component and (ii) discloses the Company’s good faith estimate of the Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts and GGO Setup Costs.
(b) Purchaser shall review the Preliminary Closing Date Net Debt Schedule during the Preliminary Closing Date Net Debt Review Period, during which time the Company shall allow Purchaser reasonable access to all non-privileged or work product documents or records or personnel used in the preparation of the Preliminary Closing Date Net Debt Schedule. On or prior to the Preliminary Closing Date Net Debt Review Deadline, Purchaser may deliver to the Company a notice (the “Dispute Notice”) listing those items on the Preliminary Closing Date Net Debt Schedule to which Purchaser takes exception, which Dispute Notice shall (i) specifically identify such items, and provide a reasonably detailed explanation of the basis upon which Purchaser has delivered such list, (ii) set forth the amount of Closing Date Net Debt W/O Reinstatement Adjustment and Permitted Claims Amounts that Purchaser has calculated based on the information contained in the Preliminary Closing Date Net Debt Schedule, and (iii) specifically identify Purchaser’s proposed adjustment(s). If Purchaser timely provides the Company with a Dispute Notice, then Purchaser and the Company shall, within ten (10) days following receipt of such Dispute Notice by the Company (the “Resolution Period”), attempt to resolve their differences with respect to the items specified in the Dispute Notice (the “Disputed Items”). If Purchaser and the Company do not resolve all Disputed Items by the end of the Resolution Period, then all Disputed Items remaining in dispute shall be submitted to the Bankruptcy Court for resolution at or concurrent with the Confirmation Hearing. The Bankruptcy Court shall consider only those Disputed Items that Purchaser, on the one hand, and the Company, on the other hand, were unable to resolve. All other matters shall be deemed to have been agreed upon by Purchaser and the Company. If Purchaser does not timely deliver a Dispute Notice, then Purchaser shall be deemed to have accepted and agreed to the Preliminary Closing Date Net Debt Schedule and to have waived any right to dispute the matters set forth therein.
(c) On or prior to the Effective Date, the Company shall deliver to Purchaser the Conclusive Net Debt Adjustment Statement.
(d) It is the intention of the parties that releases from the any Reserve are should not intended to alter the intended allocation of value between GGO and the CompanyCompany as Claims are resolved over time. Accordingly, the Plan shall provide that that, if a GGO Promissory Note is required to be issued at Closing and there is a Reserve Surplus Amount as of the end of any fiscal quarter prior to the maturity of the GGO Promissory Note, then the principal amount of the GGO Promissory Note shall be reduced (reduced, but not below zero) , by (i) by if and to the extent that such Reserve Surplus Amount as of such date is less than or equal to the Net Debt Surplus Amount, 80% of the balance Reserve Surplus Amount, and otherwise (ii) 100% of an amount equal to the Reserve Surplus Amount; provided, however, that because this calculation may be undertaken on a periodic basis, for purposes of clauses (i) and (ii), no portion of the Reserve Surplus Amount corresponding shall be utilized to any Net Debt Surplus Amount and (ii) if after application reduce the amount of the Reserve Surplus Amount pursuant to clause (i), any Reserve Surplus Amount remains, by 100% of the remaining balance of the Reserve Surplus AmountGGO Promissory Note if it has been previously utilized for such purpose. In the event that any party requests an equitable adjustment to this formula, the other parties shall consider the request in good faith.
(e) The Plan shall provide that, if there is an Offering Premium, the principal amount of the GGO Promissory Note shall be reduced (but not below zero) by 80% of the aggregate Offering Premium on the 31st day following the Closing Date.
(f) The Plan and the agreements relating to the GGO Share Distribution shall provide that from and after the Closing, the Company shall indemnify GGO and its Subsidiaries from and against 93.75% of any and all losses, claims damages, liabilities and reasonable expenses to which GGO and its Subsidiaries may become subject, in each case solely to the extent directly attributable to MPC Taxes actually paid at or after the Effective Date; provided that in no event shall the Company be required to make any indemnification payment hereunder to the extent such payment would result in aggregate payments under this Section 5.17(f) that would exceed the lower of (i) $303,750,000 and (ii) the then effective Excess Surplus Amount (the “Indemnity Cap”). The Plan shall provide that if GGO or its Affiliates receives any refund or realizes any reduction of its Tax liability in respect of the MPC Assets for which it has received a payment or realized a benefit pursuant to this Agreement, GGO shall pay an amount equal to such refund or reduction in Tax liability (less any costs or Taxes incurred with respect to the receipt thereof) to the Reorganized Company within ten (10) Business Days of the receipt or realization thereof.
(g) If GGO is obligated to pay MPC Taxes with respect to the tax year 2010 and the Company is not then obligated to indemnify GGO as a consequence of the Indemnity Cap, then solely with respect to such payments, the Company shall pay such amount of MPC Taxes and the principal amount of the GGO Promissory Note shall be increased by the amount of such payment and if at such time no GGO Promissory Note is outstanding, on the date of any such payment, GGO shall issue in favor of the Company a promissory note in the aggregate principal amount of such payment on the same terms as the GGO Promissory Note.
Appears in 1 contract
Samples: Cornerstone Investment Agreement
