Intercompany Agreements. (a) Except with respect to any Ag Intercompany Agreements (x) listed on Section 5.17(a) of the Descartes Disclosure Schedule (which may be amended by Descartes to include intercompany agreements expressly provided for pursuant to the Ag Step Plan, (y) as may be consented to in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed) in relation to the Ag Step Plan or (z) as may otherwise be specifically consented to in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such Ag Intercompany Agreement could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any manner), Descartes shall take such actions as are necessary to cause each Ag Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Descartes Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts, whether payables or receivables, between members of the Descartes Group, on the one hand, and any Transferred Ag Subsidiary, on the other hand, in respect of the Ag Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents or any amounts which may be payable pursuant to the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents). For the avoidance of doubt, none of Fermat or any of its Subsidiaries (including after the Closing, the Transferred Ag 1414958.12A-NYCSR03A - MSW Subsidiaries) shall have any claim, action or other right against Descartes and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained Ag Liability. (b) Except with respect to any H&N Intercompany Agreements (x) listed on Section 5.17(b) of the Fermat Disclosure Schedule (which may be amended by Fermat to include intercompany agreements expressly provided for pursuant to the H&N Step Plan, (y) as may be consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed) in relation to the H&N Step Plan), or (z) as may otherwise be specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such H&N Intercompany Agreement could adversely impact Descartes or any of its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), Fermat shall take such actions as are necessary to cause each H&N Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Fermat Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Descartes or any of its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts whether payables or receivables, between members of the Fermat Group, on the one hand, and any Transferred H&N Subsidiary, on the other hand, in respect of the H&N Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents or any amounts which may be payable pursuant to the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents). For the avoidance of doubt, none of Descartes or any of its Subsidiaries (including after the Closing, the Transferred H&N Subsidiaries) shall have any claim, action or other right against Fermat and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained H&N Liability. (c) From and after the date hereof until the Closing, Fermat and Descartes shall cooperate in good faith to identify any intercompany accounts solely between or among (x) the Transferred Ag Subsidiaries or (y) the Transferred H&N Subsidiaries that would create at or immediately after the Closing a Liability (other than an intercompany Liability) of Fermat and its Subsidiaries or Descartes and its Subsidiaries, respectively, and in good faith work to minimize any 1414958.12A-NYCSR03A - MSW such Liabilities (and share equally any costs (including any Taxes imposed on or payable by Descartes or any of its Subsidiaries or Fermat or any of its Subsidiaries, respectively) arising out of such efforts and actions taken to achieve such outcomes as may be mutually agreed). Each of Descartes and Fermat may also request that the other settle or cancel any other intercompany accounts solely between or among the Transferred H&N Subsidiaries or Transferred Ag Subsidiaries, as applicable, at the sole cost of the requesting party (which costs shall include any Taxes imposed on or payable by the non-requesting party or any of its Subsidiaries as a result of such settlement or cancellation). For the avoidance of doubt, the non-requesting party shall be entitled to deny any such request in its sole discretion.
Appears in 1 contract
Intercompany Agreements. (a) Except with respect to any Ag Intercompany Agreements (x) listed on Section 5.17(a) of the Descartes Disclosure Schedule (which may be amended by Descartes to include intercompany agreements expressly provided for pursuant to the Ag Step Plan, (y) as may be consented to in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed) in relation to the Ag Step Plan or (z) as may otherwise be specifically consented to in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such Ag Intercompany Agreement could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any manner), Descartes shall take such actions as are necessary to cause each Ag Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Descartes Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts, whether payables or receivables, between members of the Descartes Group, on the one hand, and any Transferred Ag Subsidiary, on the other hand, in respect of the Ag Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents or any amounts which may be payable pursuant to the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents). For the avoidance of doubt, none of Fermat or any of its Subsidiaries (including after the Closing, the Transferred Ag 1414958.12A-NYCSR03A - MSW Subsidiaries) shall have any claim, action or other right against Descartes and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained Ag Liability.is
(b) Except with respect to any H&N Intercompany Agreements (x) listed on Section 5.17(b) of the Fermat Disclosure Schedule (which may be amended by Fermat to include intercompany agreements expressly provided for pursuant to the H&N Step Plan, (y) as may be consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed) in relation to the H&N Step Plan), or (z) as may otherwise be specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such H&N Intercompany Agreement could adversely impact Descartes or any of its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), Fermat shall take such actions as are necessary to cause each H&N Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Fermat Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Descartes or any of its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts whether payables or receivables, between members of the Fermat Group, on the one hand, and any Transferred H&N Subsidiary, on the other hand, in respect of the H&N Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents or any amounts which may be payable pursuant to the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents). For the avoidance of doubt, none of Descartes or any of its Subsidiaries (including after the Closing, the Transferred H&N Subsidiaries) shall have any claim, action or other right against Fermat and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained H&N Liability.avoidance
(c) From and after the date hereof until the Closing, Fermat and Descartes shall cooperate in good faith to identify any intercompany accounts solely between or among (x) the Transferred Ag Subsidiaries or (y) the Transferred H&N Subsidiaries that would create at or immediately after the Closing a Liability (other than an intercompany Liability) of Fermat and its Subsidiaries or Descartes and its Subsidiaries, respectively, and in good faith work to minimize any 1414958.12A-NYCSR03A - MSW such Liabilities (and share equally any costs (including any Taxes imposed on or payable by Descartes or any of its Subsidiaries or Fermat or any of its Subsidiaries, respectively) arising out of such efforts and actions taken to achieve such outcomes as may be mutually agreed). Each of Descartes and Fermat may also request that the other settle or cancel any other intercompany accounts solely between or among the Transferred H&N Subsidiaries or Transferred Ag Subsidiaries, as applicable, at the sole cost of the requesting party (which costs shall include any Taxes imposed on or payable by the non-requesting party or any of its Subsidiaries as a result of such settlement or cancellation). For the avoidance of doubt, the non-requesting party shall be entitled to deny any such request in its sole discretion.
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Samples: MSW Transaction Agreement (FMC Corp)
Intercompany Agreements. (a) Except The US Borrower will (i) perform all of its obligations under the Master Intercompany Agreement and the Used Truck Loan Agreement unless International shall have failed to make any payment payable by it to the US Borrower under the Master Intercompany Agreement the Used Truck Loan Agreement or the Tax Allocation Agreement; (ii) enforce each of the Master Intercompany Agreement and the Used Truck Loan Agreement against International in accordance with respect its terms; (iii) not cancel or terminate, or permit the cancellation or termination of, the Master Intercompany Agreement, or Article II, III or IV thereof, or the Used Truck Loan Agreement, if in each case, such cancellation or termination is materially adverse to the US Borrower, and (iv) not agree to any Ag amendment, waiver or modification of the Master Intercompany Agreements Agreement or the Used Truck Loan Agreement which is materially adverse to the US Borrower; provided that (x) listed on the Master Intercompany agreement may be modified to modify, amend or eliminate Section 5.17(a) II.A of the Descartes Disclosure Schedule (which may be amended by Descartes Master Intercompany Agreement insofar as such Section requires International to include intercompany agreements expressly provided for pursuant offer to sell to the Ag Step PlanUS Borrower, or requires the US Borrower to purchase, “Wholesale Contracts” (as such term is defined in the Master Intercompany Agreement) and (y) as the Used Truck Loan Agreement may not be consented to in writing amended, waived or modified if there is a reasonable possibility that such amendment, waiver or modification would have the effect of (1) forgiving any amount owed by Fermat (such consent not to be unreasonably withheld, conditioned or delayed) in relation International to the Ag Step Plan US Borrower thereunder, (2) postponing the date that any payment would otherwise be payable to the US Borrower thereunder by more than one year, (3) further subordinating the US Borrower’s right to payment thereunder to the rights of any other creditors or (z4) changing the transactions contemplated thereunder in a manner that makes them, taken as may otherwise be specifically consented to in writing by Fermat (such consent not to be unreasonably withhelda whole, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such Ag Intercompany Agreement could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any manner), Descartes shall take such actions as are necessary to cause each Ag Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Descartes Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts, whether payables or receivables, between members of the Descartes Group, on the one hand, and any Transferred Ag Subsidiary, on the other hand, in respect of the Ag Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents or any amounts which may be payable pursuant materially less favorable to the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents). For the avoidance of doubt, none of Fermat or any of its Subsidiaries (including after the Closing, the Transferred Ag 1414958.12A-NYCSR03A - MSW Subsidiaries) shall have any claim, action or other right against Descartes and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained Ag LiabilityUS Borrower.
(b) Except The US Borrower will (i) enforce the Tax Allocation Agreement against International in accordance with respect its terms, (ii) not agree to any H&N Intercompany Agreements (x) listed on Section 5.17(b) amendment, waiver or modification of the Fermat Disclosure Schedule (Tax Allocation Agreement which may be amended by Fermat to include intercompany agreements expressly provided for pursuant is in any manner adverse to the H&N Step Plan, (y) as may be consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned US Borrower or delayed) in relation to the H&N Step Plan), or (z) as may otherwise be specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such H&N Intercompany Agreement could adversely impact Descartes or any of US Borrower and its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), Fermat shall take such actions taken as are necessary to cause each H&N Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Fermat Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Descartes or any of its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts whether payables or receivables, between members of the Fermat Group, on the one hand, and any Transferred H&N Subsidiary, on the other hand, in respect of the H&N Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents or any amounts which may be payable pursuant to the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents). For the avoidance of doubt, none of Descartes or any of its Subsidiaries (including after the Closing, the Transferred H&N Subsidiaries) shall have any claim, action or other right against Fermat and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained H&N Liabilitywhole.
(c) From and after The US Borrower will (i) enforce each Intercompany Loan Agreement against the date hereof until Subsidiary of the ClosingUS Borrower that is a party thereto in accordance with its terms; (ii) cause each of its Subsidiaries to pay promptly all accounts payable from time to time owing by such Subsidiary to the US Borrower (including without limitation amounts payable from time to time by such Subsidiary to the US Borrower under the Tax Allocation Agreement); (iii) not cancel or terminate, Fermat and Descartes shall cooperate in good faith to identify or permit the cancellation or termination of, any intercompany accounts solely between or among (x) Intercompany Loan Agreement without the Transferred Ag Subsidiaries or (y) consent of the Transferred H&N Subsidiaries that would create at or immediately after the Closing a Liability Required Lenders (other than an intercompany Liabilitythe cancellation or termination of any Intercompany Loan Agreement resulting from the termination of the Qualified Securitization Transaction to which such Intercompany Loan Agreement relates and the repayment of all amounts outstanding under such Intercompany Loan Agreement); (iv) not agree to any amendment, waiver or modification of Fermat any provision of any Intercompany Loan Agreement if there is a reasonable possibility that such amendment, waiver or modification would have the effect of (1) forgiving any amount owed by any Subsidiary of the US Borrower to the US Borrower under any Intercompany Loan Agreement, (2) postponing the date that any payment would otherwise be payable to the US Borrower thereunder, (3) further subordinating the US Borrower’s right to payment thereunder to the rights of any other creditors, (4) further restricting the Subsidiary party thereto from applying, or releasing to any extent such Subsidiary from its obligation to apply, cash received by it to pay its allocated share of payments from time to time owing by the US Borrower to International under the Tax Allocation Agreement or (5) changing the transactions contemplated thereunder in a manner that makes them, taken as a whole, less favorable to the US Borrower; and (v) deliver to the Administrative Agent, promptly upon receipt thereof, a copy of each certificate, notice, instruction or other document received or delivered by it in connection with each Intercompany Loan Agreement.
(d) The US Borrower will (i) perform all of its Subsidiaries obligations under the Cayman Loan Agreements, (ii) enforce each Cayman Loan Agreement against the Cayman Affiliate and (iii) not cancel or Descartes and its Subsidiariesterminate, respectivelyor permit the cancellation or termination of, any Cayman Loan Agreement if such cancellation or termination is materially adverse to the US Borrower, and in good faith work (iv) not agree to minimize any 1414958.12A-NYCSR03A - MSW amendment, waiver or modification of any provision of any Cayman Loan Agreement if there is a reasonable possibility that such Liabilities amendment, waiver or modification would have the effect of (and share equally 1) forgiving any costs amount owed by the Cayman Affiliates to the US Borrower thereunder, (including 2) postponing the date that any Taxes imposed on or payment would otherwise be payable to the US Borrower thereunder by Descartes or any more than one year, (3) further subordinating the US Borrower’s right to payment thereunder to the rights of its Subsidiaries or Fermat or any of its Subsidiaries, respectively) arising out of such efforts and actions taken to achieve such outcomes as may be mutually agreed). Each of Descartes and Fermat may also request that the other settle or cancel any other intercompany accounts solely between creditors or among (4) changing the Transferred H&N Subsidiaries or Transferred Ag Subsidiariestransactions contemplated thereunder in a manner that makes them, as applicable, at the sole cost of the requesting party (which costs shall include any Taxes imposed on or payable by the non-requesting party or any of its Subsidiaries taken as a result of such settlement or cancellation). For whole, materially less favorable to the avoidance of doubt, the non-requesting party shall be entitled to deny any such request in its sole discretionUS Borrower.
Appears in 1 contract
Intercompany Agreements. (a) Except The US Borrower will (i) perform all of its obligations under the Master Intercompany Agreement unless International shall have failed to make any payment payable by it to the US Borrower under the Master Intercompany Agreement or the Tax Allocation Agreement; (ii) enforce the Master Intercompany Agreement against International in accordance with respect its terms; (iii) not cancel or terminate, or permit the cancellation or termination of, the Master Intercompany Agreement, or Article II, III or IV thereof if such cancellation or termination is materially adverse to the US Borrower, and (iv) not agree to any Ag Intercompany Agreements (x) listed on Section 5.17(a) amendment, waiver or modification of the Descartes Disclosure Schedule (Master Intercompany Agreement which is materially adverse to the US Borrower; provided that the Master Intercompany agreement may be amended by Descartes modified to include intercompany agreements expressly provided for pursuant modify, amend or eliminate Section II.A of the Master Intercompany Agreement insofar as such Section requires International to offer to sell to the Ag Step PlanUS Borrower, or requires the US Borrower to purchase, “Wholesale Contracts” (y) as may be consented to such term is defined in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed) in relation to the Ag Step Plan or (z) as may otherwise be specifically consented to in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such Ag Master Intercompany Agreement could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any mannerAgreement), Descartes shall take such actions as are necessary to cause each Ag Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Descartes Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts, whether payables or receivables, between members of the Descartes Group, on the one hand, and any Transferred Ag Subsidiary, on the other hand, in respect of the Ag Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents or any amounts which may be payable pursuant to the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents). For the avoidance of doubt, none of Fermat or any of its Subsidiaries (including after the Closing, the Transferred Ag 1414958.12A-NYCSR03A - MSW Subsidiaries) shall have any claim, action or other right against Descartes and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained Ag Liability.
(b) Except The US Borrower will (i) enforce the Tax Allocation Agreement against International in accordance with respect its terms, (ii) not agree to any H&N Intercompany Agreements (x) listed on Section 5.17(b) amendment, waiver or modification of the Fermat Disclosure Schedule (Tax Allocation Agreement which may be amended by Fermat to include intercompany agreements expressly provided for pursuant is in any manner adverse to the H&N Step Plan, (y) as may be consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned US Borrower or delayed) in relation to the H&N Step Plan), or (z) as may otherwise be specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such H&N Intercompany Agreement could adversely impact Descartes or any of US Borrower and its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), Fermat shall take such actions taken as are necessary to cause each H&N Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Fermat Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Descartes or any of its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts whether payables or receivables, between members of the Fermat Group, on the one hand, and any Transferred H&N Subsidiary, on the other hand, in respect of the H&N Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents or any amounts which may be payable pursuant to the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents). For the avoidance of doubt, none of Descartes or any of its Subsidiaries (including after the Closing, the Transferred H&N Subsidiaries) shall have any claim, action or other right against Fermat and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained H&N Liabilitywhole.
(c) From and after The US Borrower will (i) enforce each Intercompany Loan Agreement against the date hereof until Subsidiary of the ClosingUS Borrower that is a party thereto in accordance with its terms; (ii) cause each of its Subsidiaries to pay promptly all accounts payable from time to time owing by such Subsidiary to the US Borrower (including without limitation amounts payable from time to time by such Subsidiary to the US Borrower under the Tax Allocation Agreement); (iii) not cancel or terminate, Fermat and Descartes shall cooperate in good faith to identify or permit the cancellation or termination of, any intercompany accounts solely between or among (x) Intercompany Loan Agreement without the Transferred Ag Subsidiaries or (y) consent of the Transferred H&N Subsidiaries that would create at or immediately after the Closing a Liability Required Lenders (other than an intercompany Liabilitythe cancellation or termination of any Intercompany Loan Agreement resulting from the termination of the Qualified Securitization Transaction to which such Intercompany Loan Agreement relates and the repayment of all amounts outstanding under such Intercompany Loan Agreement); (iv) not agree to any amendment, waiver or modification of Fermat and its Subsidiaries any provision of any Intercompany Loan Agreement if there is a reasonable possibility that such amendment, waiver or Descartes and its Subsidiariesmodification would have the effect of (1) reducing the amount owed by any Subsidiary of the US Borrower to the US Borrower under any Intercompany Loan Agreement, respectively(2) postponing the date that any payment would otherwise be payable to the US Borrower thereunder, and in good faith work (3) further subordinating the US Borrower’s right to minimize any 1414958.12A-NYCSR03A - MSW such Liabilities (and share equally any costs (including any Taxes imposed on or payable by Descartes or any payment thereunder to the rights of its Subsidiaries or Fermat or any of its Subsidiaries, respectively) arising out of such efforts and actions taken to achieve such outcomes as may be mutually agreed). Each of Descartes and Fermat may also request that the other settle or cancel any other intercompany accounts solely between creditors, (4) further restricting the Subsidiary party thereto from applying, or among releasing to any extent such Subsidiary from its obligation to apply, cash received by it to pay its allocated share of payments from time to time owing by the Transferred H&N Subsidiaries US Borrower to International under the Tax Allocation Agreement or Transferred Ag Subsidiaries(5) changing the transactions contemplated thereunder in a manner that makes them, taken as applicablea whole, at less favorable to the sole cost US Borrower; and (v) deliver to the Administrative Agent, promptly upon receipt thereof, a copy of each certificate, notice, instruction or other document received or delivered by it in connection with each Intercompany Loan Agreement.
(d) The US Borrower will (i) maintain in effect and enforce the Parents’ Side Agreement with the Parent in accordance with its terms and (ii) not agree to any amendment, waiver or modification of the requesting party (Parents’ Side Agreement which costs shall include any Taxes imposed on is materially adverse to the US Borrower or payable by which is materially adverse to the non-requesting party or any interest of its Subsidiaries as a result of such settlement or cancellation). For the avoidance of doubt, the non-requesting party shall be entitled to deny any such request in its sole discretionLenders.
Appears in 1 contract
Intercompany Agreements. (a) Except The Borrower will (i) perform all of its obligations under the Master Intercompany Agreement unless International shall have failed to make any payment payable by it to the Borrower under the Master Intercompany Agreement or the Tax Allocation Agreement; (ii) enforce the Master Intercompany Agreement against International in accordance with respect its terms; (iii) not cancel or terminate, or permit the cancellation or termination of, the Master Intercompany Agreement, or Article II, VI, VII or VIII (other than paragraph C) thereof if such cancellation or termination is materially adverse to the Borrower, and (iv) not agree to any Ag Intercompany Agreements (x) listed on Section 5.17(a) amendment, waiver or modification of the Descartes Disclosure Schedule (Master Intercompany Agreement which is materially adverse to the Borrower; provided that the Master Intercompany agreement may be amended by Descartes modified to include intercompany agreements expressly provided for pursuant modify, amend or eliminate Section II.A of the Master Intercompany Agreement insofar as such Section requires International to offer to sell to the Ag Step PlanBorrower, or requires the Borrower to purchase, "Wholesale Contracts" (y) as may be consented to such term is defined in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed) in relation to the Ag Step Plan or (z) as may otherwise be specifically consented to in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such Ag Master Intercompany Agreement could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any mannerAgreement), Descartes shall take such actions as are necessary to cause each Ag Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Descartes Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts, whether payables or receivables, between members of the Descartes Group, on the one hand, and any Transferred Ag Subsidiary, on the other hand, in respect of the Ag Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents or any amounts which may be payable pursuant to the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents). For the avoidance of doubt, none of Fermat or any of its Subsidiaries (including after the Closing, the Transferred Ag 1414958.12A-NYCSR03A - MSW Subsidiaries) shall have any claim, action or other right against Descartes and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained Ag Liability.
(b) Except The Borrower will (i) enforce the Tax Allocation Agreement against International in accordance with respect its terms, (ii) not agree to any H&N Intercompany Agreements (x) listed on Section 5.17(b) amendment, waiver or modification of the Fermat Disclosure Schedule (Tax Allocation Agreement which may be amended by Fermat amends or modifies the provisions of the Amendment to include intercompany agreements expressly provided for pursuant Tax Allocation Agreement and Acknowledgement dated as of April 26, 1993 among the Borrower, International and TRIP or is in any manner adverse to the H&N Step Plan, (y) as may be consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned Borrower or delayed) in relation to the H&N Step Plan), or (z) as may otherwise be specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such H&N Intercompany Agreement could adversely impact Descartes or any of Borrower and its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), Fermat shall take such actions taken as are necessary to cause each H&N Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Fermat Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Descartes or any of its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts whether payables or receivables, between members of the Fermat Group, on the one hand, and any Transferred H&N Subsidiary, on the other hand, in respect of the H&N Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents or any amounts which may be payable pursuant to the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents). For the avoidance of doubt, none of Descartes or any of its Subsidiaries (including after the Closing, the Transferred H&N Subsidiaries) shall have any claim, action or other right against Fermat and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained H&N Liabilitywhole.
(c) From and after The Borrower will (i) enforce each Intercompany Loan Agreement against the date hereof until Subsidiary of the ClosingBorrower that is a party thereto in accordance with its terms; (ii) cause each of its Subsidiaries to pay promptly all accounts payable from time to time owing by such Subsidiary to the Borrower (including without limitation amounts payable from time to time by such Subsidiary to the Borrower under the Tax Allocation Agreement); (iii) not cancel or terminate, Fermat and Descartes shall cooperate in good faith to identify or permit the cancellation or termination of, any intercompany accounts solely between or among (x) Intercompany Loan Agreement without the Transferred Ag Subsidiaries or (y) consent of the Transferred H&N Subsidiaries that would create at or immediately after the Closing a Liability Required Lenders (other than an intercompany Liabilitythe cancellation or termination of any Intercompany Loan Agreement resulting from the termination of the Qualified Securitization Transaction to which such Intercompany Loan Agreement relates and the repayment of all amounts outstanding under such Intercompany Loan Agreement); (iv) not agree to any amendment, waiver or modification of Fermat and its Subsidiaries any provision of any Intercompany Loan Agreement if there is a reasonable possibility that such amendment, waiver or Descartes and its Subsidiariesmodification would have the effect of (1) reducing the amount owed by any Subsidiary of the Borrower to the Borrower under any Intercompany Loan Agreement, respectively(2) postponing the date that any payment would otherwise be payable to the Borrower thereunder, and in good faith work (3) further subordinating the Borrower's right to minimize any 1414958.12A-NYCSR03A - MSW such Liabilities (and share equally any costs (including any Taxes imposed on or payable by Descartes or any payment thereunder to the rights of its Subsidiaries or Fermat or any of its Subsidiaries, respectively) arising out of such efforts and actions taken to achieve such outcomes as may be mutually agreed). Each of Descartes and Fermat may also request that the other settle or cancel any other intercompany accounts solely between creditors, (4) further restricting the Subsidiary party thereto from applying, or among the Transferred H&N Subsidiaries or Transferred Ag Subsidiariesreleasing to any extent such Subsidiary from its obligation to apply, as applicable, at the sole cost cash received by it to pay its allocated share of the requesting party (which costs shall include any Taxes imposed on or payable payments from time to time owing by the non-requesting party Borrower to International under the Tax Allocation Agreement or any of its Subsidiaries (5) changing the transactions contemplated thereunder in a manner that makes them, taken as a result whole, less favorable to the Borrower; and (v) deliver to the Administrative Agent, promptly upon receipt thereof, a copy of such settlement each certificate, notice, instruction or cancellation). For the avoidance of doubt, the non-requesting party shall be entitled to deny any such request other document received or delivered by it in its sole discretionconnection with each Intercompany Loan Agreement.
Appears in 1 contract
Intercompany Agreements. (a) Except The US Borrower will (i) perform all of its obligations under the Master Intercompany Agreement unless International shall have failed to make any payment payable by it to the US Borrower under the Master Intercompany Agreement or the Tax Allocation Agreement; (ii) enforce the Master Intercompany Agreement against International in accordance with respect its terms; (iii) not cancel or terminate, or permit the cancellation or termination of, the Master Intercompany Agreement, or Article II, III or IV thereof if such cancellation or termination is materially adverse to the US Borrower, and (iv) not agree to any Ag Intercompany Agreements (x) listed on Section 5.17(a) amendment, waiver or modification of the Descartes Disclosure Schedule (Master Intercompany Agreement which is materially adverse to the US Borrower; provided that the Master Intercompany agreement may be amended by Descartes modified to include intercompany agreements expressly provided for pursuant modify, amend or eliminate Section II.A of the Master Intercompany Agreement insofar as such Section requires International to offer to sell to the Ag Step PlanUS Borrower, or requires the US Borrower to purchase, “Wholesale Contracts” (y) as may be consented to such term is defined in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed) in relation to the Ag Step Plan or (z) as may otherwise be specifically consented to in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such Ag Master Intercompany Agreement could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any mannerAgreement), Descartes shall take such actions as are necessary to cause each Ag Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Descartes Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts, whether payables or receivables, between members of the Descartes Group, on the one hand, and any Transferred Ag Subsidiary, on the other hand, in respect of the Ag Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents or any amounts which may be payable pursuant to the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents). For the avoidance of doubt, none of Fermat or any of its Subsidiaries (including after the Closing, the Transferred Ag 1414958.12A-NYCSR03A - MSW Subsidiaries) shall have any claim, action or other right against Descartes and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained Ag Liability.
(b) Except The US Borrower will (i) enforce the Tax Allocation Agreement against International in accordance with respect its terms, (ii) not agree to any H&N Intercompany Agreements (x) listed on Section 5.17(b) amendment, waiver or modification of the Fermat Disclosure Schedule (Tax Allocation Agreement which may be amended by Fermat amends or modifies the provisions of the Amendment to include intercompany agreements expressly provided for pursuant Tax Allocation Agreement and Acknowledgement dated as of April 26, 1993 among the US Borrower, International and TRIP or is in any manner adverse to the H&N Step Plan, (y) as may be consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned US Borrower or delayed) in relation to the H&N Step Plan), or (z) as may otherwise be specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such H&N Intercompany Agreement could adversely impact Descartes or any of US Borrower and its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), Fermat shall take such actions taken as are necessary to cause each H&N Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Fermat Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Descartes or any of its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts whether payables or receivables, between members of the Fermat Group, on the one hand, and any Transferred H&N Subsidiary, on the other hand, in respect of the H&N Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents or any amounts which may be payable pursuant to the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents). For the avoidance of doubt, none of Descartes or any of its Subsidiaries (including after the Closing, the Transferred H&N Subsidiaries) shall have any claim, action or other right against Fermat and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained H&N Liabilitywhole.
(c) From and after The US Borrower will (i) enforce each Intercompany Loan Agreement against the date hereof until Subsidiary of the ClosingUS Borrower that is a party thereto in accordance with its terms; (ii) cause each of its Subsidiaries to pay promptly all accounts payable from time to time owing by such Subsidiary to the US Borrower (including without limitation amounts payable from time to time by such Subsidiary to the US Borrower under the Tax Allocation Agreement); (iii) not cancel or terminate, Fermat and Descartes shall cooperate in good faith to identify or permit the cancellation or termination of, any intercompany accounts solely between or among (x) Intercompany Loan Agreement without the Transferred Ag Subsidiaries or (y) consent of the Transferred H&N Subsidiaries that would create at or immediately after the Closing a Liability Required Lenders (other than an intercompany Liabilitythe cancellation or termination of any Intercompany Loan Agreement resulting from the termination of the Qualified Securitization Transaction to which such Intercompany Loan Agreement relates and the repayment of all amounts outstanding under such Intercompany Loan Agreement); (iv) not agree to any amendment, waiver or modification of Fermat and its Subsidiaries any provision of any Intercompany Loan Agreement if there is a reasonable possibility that such amendment, waiver or Descartes and its Subsidiariesmodification would have the effect of (1) reducing the amount owed by any Subsidiary of the US Borrower to the US Borrower under any Intercompany Loan Agreement, respectively(2) postponing the date that any payment would otherwise be payable to the US Borrower thereunder, and in good faith work (3) further subordinating the US Borrower’s right to minimize any 1414958.12A-NYCSR03A - MSW such Liabilities (and share equally any costs (including any Taxes imposed on or payable by Descartes or any payment thereunder to the rights of its Subsidiaries or Fermat or any of its Subsidiaries, respectively) arising out of such efforts and actions taken to achieve such outcomes as may be mutually agreed). Each of Descartes and Fermat may also request that the other settle or cancel any other intercompany accounts solely between creditors, (4) further restricting the Subsidiary party thereto from applying, or among releasing to any extent such Subsidiary from its obligation to apply, cash received by it to pay its allocated share of payments from time to time owing by the Transferred H&N Subsidiaries US Borrower to International under the Tax Allocation Agreement or Transferred Ag Subsidiaries(5) changing the transactions contemplated thereunder in a manner that makes them, taken as applicablea whole, at less favorable to the sole cost US Borrower; and (v) deliver to the Administrative Agent, promptly upon receipt thereof, a copy of each certificate, notice, instruction or other document received or delivered by it in connection with each Intercompany Loan Agreement.
(d) The US Borrower will (i) maintain in effect and enforce the Parents’ Side Agreement with the Parent in accordance with its terms and (ii) not agree to any amendment, waiver or modification of the requesting party (Parents’ Side Agreement which costs shall include any Taxes imposed on is materially adverse to the US Borrower or payable by which is materially adverse to the non-requesting party or any interest of its Subsidiaries as a result of such settlement or cancellation). For the avoidance of doubt, the non-requesting party shall be entitled to deny any such request in its sole discretionLenders.
Appears in 1 contract
Intercompany Agreements. (a) Except The US Borrower will (i) perform all of its obligations under the Master Intercompany Agreement and the Used Truck Loan Agreement unless International shall have failed to make any payment payable by it to the US Borrower under the Master Intercompany Agreement the Used Truck Loan Agreement or the Tax Allocation Agreement; (ii) enforce each of the Master Intercompany Agreement and the Used Truck Loan Agreement against International in accordance with respect its terms; (iii) not cancel or terminate, or permit the cancellation or termination of, the Master Intercompany Agreement, or Article II, III or IV thereof, or the Used Truck Loan Agreement, if in each case, such cancellation or termination is materially adverse to the US Borrower, and (iv) not agree to any Ag amendment, waiver or modification of the Master Intercompany Agreements Agreement or the Used Truck Loan Agreement which is materially adverse to the US Borrower; provided that (x) listed on the Master Intercompany agreement may be modified to modify, amend or eliminate Section 5.17(a) II.A of the Descartes Disclosure Schedule (which may be amended by Descartes Master Intercompany Agreement insofar as such Section requires International to include intercompany agreements expressly provided for pursuant offer to sell to the Ag Step PlanUS Borrower, or requires the US Borrower to purchase, “Wholesale Contracts” (as such term is defined in the Master Intercompany Agreement) and (y) as the Used Truck Loan Agreement may not be consented to in writing amended, waived or modified if there is a reasonable possibility that such amendment, waiver or modification would have the effect of (1) forgiving any amount owed by Fermat (such consent not to be unreasonably withheld, conditioned or delayed) in relation International to the Ag Step Plan US Borrower thereunder, (2) postponing the date that any payment would otherwise be payable to the US Borrower thereunder by more than one year, (3) further subordinating the US Borrower’s right to payment thereunder to the rights of any other creditors or (z4) changing the transactions contemplated thereunder in a manner that makes them, taken as may otherwise be specifically consented to in writing by Fermat (such consent not to be unreasonably withhelda whole, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such Ag Intercompany Agreement could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any manner), Descartes shall take such actions as are necessary to cause each Ag Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Descartes Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts, whether payables or receivables, between members of the Descartes Group, on the one hand, and any Transferred Ag Subsidiary, on the other hand, in respect of the Ag Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents or any amounts which may be payable pursuant materially less favorable to the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents). For the avoidance of doubt, none of Fermat or any of its Subsidiaries (including after the Closing, the Transferred Ag 1414958.12A-NYCSR03A - MSW Subsidiaries) shall have any claim, action or other right against Descartes and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained Ag LiabilityUS Borrower.
(b) Except The US Borrower will (i) enforce the Tax Allocation Agreement against International in accordance with respect its terms, (ii) not agree to any H&N Intercompany Agreements (x) listed on Section 5.17(b) amendment, waiver or modification of the Fermat Disclosure Schedule (Tax Allocation Agreement which may be amended by Fermat to include intercompany agreements expressly provided for pursuant is in any manner adverse to the H&N Step Plan, (y) as may be consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned US Borrower or delayed) in relation to the H&N Step Plan), or (z) as may otherwise be specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such H&N Intercompany Agreement could adversely impact Descartes or any of US Borrower and its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), Fermat shall take such actions taken as are necessary to cause each H&N Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Fermat Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Descartes or any of its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts whether payables or receivables, between members of the Fermat Group, on the one hand, and any Transferred H&N Subsidiary, on the other hand, in respect of the H&N Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents or any amounts which may be payable pursuant to the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents). For the avoidance of doubt, none of Descartes or any of its Subsidiaries (including after the Closing, the Transferred H&N Subsidiaries) shall have any claim, action or other right against Fermat and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained H&N Liabilitywhole.
(c) From and after The US Borrower will (i) enforce each Intercompany Loan Agreement against the date hereof until Subsidiary of the ClosingUS Borrower that is a party thereto in accordance with its terms; (ii) cause each of its Subsidiaries to pay promptly all accounts payable from time to time owing by such Subsidiary to the US Borrower (including without limitation amounts payable from time to time by such Subsidiary to the US Borrower under the Tax Allocation Agreement); (iii) not cancel or terminate, Fermat and Descartes shall cooperate in good faith to identify or permit the cancellation or termination of, any intercompany accounts solely between or among (x) Intercompany Loan Agreement without the Transferred Ag Subsidiaries or (y) consent of the Transferred H&N Subsidiaries that would create at or immediately after the Closing a Liability Required Lenders (other than an intercompany Liabilitythe cancellation or termination of any Intercompany Loan Agreement resulting from the termination of the Qualified Securitization Transaction to which such Intercompany Loan Agreement relates and the repayment of all amounts outstanding under such Intercompany Loan Agreement); (iv) not agree to any amendment, waiver or modification of Fermat any provision of any Intercompany Loan Agreement if there is a reasonable possibility that such amendment, waiver or modification would have the effect of (1) forgiving any amount owed by any Subsidiary of the US Borrower to the US Borrower under any Intercompany Loan Agreement, (2) postponing the date that any payment would otherwise be payable to the US Borrower thereunder, (3) further subordinating the US Borrower’s right to payment thereunder to the rights of any other creditors, (4) further restricting the Subsidiary party thereto from applying, or releasing to any extent such Subsidiary from its obligation to apply, cash received by it to pay its allocated share of payments from time to time owing by the US Borrower to International under the Tax Allocation Agreement or (5) changing the transactions contemplated thereunder in a manner that makes them, taken as a whole, less favorable to the US Borrower; and (v) deliver to the Administrative Agent, promptly upon receipt thereof, a copy of each certificate, notice, instruction or other document received or delivered by it in connection with each Intercompany Loan Agreement.
(d) The US Borrower will (i) perform all of its Subsidiaries obligations under the Cayman Loan Agreements, (ii) enforce each Cayman Loan Agreement against the Cayman Affiliate and (iii) not cancel or Descartes and its Subsidiariesterminate, respectivelyor permit the cancellation or termination of, any Cayman Loan Agreement if such cancellation or termination is materially adverse to the US Borrower, and in good faith work (iv) not agree to minimize any 1414958.12A-NYCSR03A - MSW amendment, waiver or modification of any provision of any Cayman Loan Agreement if there is a reasonable possibility that such Liabilities amendment, waiver or modification would have the effect of (and share equally 1) forgiving any costs amount owed by the Cayman Affiliate to the US Borrower thereunder, (including 2) postponing the date that any Taxes imposed on or payment would otherwise be payable to the US Borrower thereunder by Descartes or any more than one year, (3) further subordinating the US Borrower’s right to payment thereunder to the rights of its Subsidiaries or Fermat or any of its Subsidiaries, respectively) arising out of such efforts and actions taken to achieve such outcomes as may be mutually agreed). Each of Descartes and Fermat may also request that the other settle or cancel any other intercompany accounts solely between creditors or among (4) changing the Transferred H&N Subsidiaries or Transferred Ag Subsidiariestransactions contemplated thereunder in a manner that makes them, as applicable, at the sole cost of the requesting party (which costs shall include any Taxes imposed on or payable by the non-requesting party or any of its Subsidiaries taken as a result of such settlement or cancellation). For whole, materially less favorable to the avoidance of doubt, the non-requesting party shall be entitled to deny any such request in its sole discretionUS Borrower.
Appears in 1 contract
Intercompany Agreements. (a) Except The US Borrower will (i) perform all of its obligations under the Master Intercompany Agreement and the Used Truck Loan Agreement unless International shall have failed to make any payment payable by it to the US Borrower under the Master Intercompany Agreement the Used Truck Loan Agreement or the Tax Allocation Agreement; (ii) enforce each of the Master Intercompany Agreement and the Used Truck Loan Agreement against International in accordance with respect its terms; (iii) not cancel or terminate, or permit the cancellation or termination of, the Master Intercompany Agreement, or Article II, III or IV thereof, or the Used Truck Loan Agreement, if in each case, such cancellation or termination is materially adverse to the US Borrower, and (iv) not agree to any Ag amendment, waiver or modification of the Master Intercompany Agreements Agreement or the Used Truck Loan Agreement which is materially adverse to the US Borrower; provided that (x) listed on the Master Intercompany agreement may be modified to modify, amend or eliminate Section 5.17(a) II.A of the Descartes Disclosure Schedule (which may be amended by Descartes Master Intercompany Agreement insofar as such Section requires International to include intercompany agreements expressly provided for pursuant offer to sell to the Ag Step PlanUS Borrower, or requires the US Borrower to purchase, “Wholesale Contracts” (as such term is defined in the Master Intercompany Agreement) and (y) as the Used Truck Loan Agreement may not be consented to in writing amended, waived or modified if there is a reasonable possibility that such amendment, waiver or modification would have the effect of (1) forgiving any amount owed by Fermat (such consent not to be unreasonably withheld, conditioned or delayed) in relation International to the Ag Step Plan US Borrower thereunder, (2) postponing the date that any payment would otherwise be payable to the US Borrower thereunder by more than one year, (3) further subordinating the US Borrower’s right to payment thereunder to the rights of any other creditors or (z4) changing the transactions contemplated thereunder in a manner that makes them, taken as may otherwise be specifically consented to in writing by Fermat (such consent not to be unreasonably withhelda whole, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such Ag Intercompany Agreement could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any manner), Descartes shall take such actions as are necessary to cause each Ag Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Descartes Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Fermat (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Fermat or any of its Subsidiaries (including the Transferred Ag Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts, whether payables or receivables, between members of the Descartes Group, on the one hand, and any Transferred Ag Subsidiary, on the other hand, in respect of the Ag Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents or any amounts which may be payable pursuant materially less favorable to the Excluded Ag Assets, the Retained Ag Liabilities, the Ag Shared Contracts and the Ag Acquisition Documents). For the avoidance of doubt, none of Fermat or any of its Subsidiaries (including after the Closing, the Transferred Ag 1414958.12A-NYCSR03A - MSW Subsidiaries) shall have any claim, action or other right against Descartes and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained Ag LiabilityUS Borrower.
(b) Except The US Borrower will (i) enforce the Tax Allocation Agreement against International in accordance with respect its terms, (ii) not agree to any H&N Intercompany Agreements (x) listed on Section 5.17(b) amendment, waiver or modification of the Fermat Disclosure Schedule (Tax Allocation Agreement which may be amended by Fermat to include intercompany agreements expressly provided for pursuant is in any manner adverse to the H&N Step Plan, (y) as may be consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned US Borrower or delayed) in relation to the H&N Step Plan), or (z) as may otherwise be specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such H&N Intercompany Agreement could adversely impact Descartes or any of US Borrower and its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), Fermat shall take such actions taken as are necessary to cause each H&N Intercompany Agreement to be terminated and of no force and effect after the Closing (for the avoidance of doubt, the foregoing does not apply to any agreement that, as of the Closing, is solely between members of the Fermat Group). Effective upon the Closing, except as otherwise specifically consented to in writing by Descartes (such consent not to be unreasonably withheld, conditioned or delayed (it being agreed that withholding, delaying or conditioning any such consent is reasonable if such intercompany account could adversely impact Descartes or any of its Subsidiaries (including the Transferred H&N Subsidiaries after the Closing) in any manner), all outstanding intercompany accounts whether payables or receivables, between members of the Fermat Group, on the one hand, and any Transferred H&N Subsidiary, on the other hand, in respect of the H&N Business, shall be settled and/or cancelled and of no further force and effect (it being understood that such settlement or cancellation shall not in any way affect the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents or any amounts which may be payable pursuant to the Excluded H&N Assets, the Retained H&N Liabilities, the H&N Shared Contracts and the H&N Acquisition Documents). For the avoidance of doubt, none of Descartes or any of its Subsidiaries (including after the Closing, the Transferred H&N Subsidiaries) shall have any claim, action or other right against Fermat and/or any of its Subsidiaries with respect to any funds, accounts or other assets or proceeds thereof that were subject to or arose out of the settlement of any such account balances; provided, that any such Liability arising out of or relating to the termination or cancellation thereof remains a Retained H&N Liabilitywhole.
(c) From and after The US Borrower will (i) enforce each Intercompany Loan Agreement against the date hereof until Subsidiary of the ClosingUS Borrower that is a party thereto in accordance with its terms; (ii) cause each of its Subsidiaries to pay promptly all accounts payable from time to time owing by such Subsidiary to the US Borrower (including without limitation amounts payable from time to time by such Subsidiary to the US Borrower under the Tax Allocation Agreement); (iii) not cancel or terminate, Fermat and Descartes shall cooperate in good faith to identify or permit the cancellation or termination of, any intercompany accounts solely between or among (x) Intercompany Loan Agreement without the Transferred Ag Subsidiaries or (y) consent of the Transferred H&N Subsidiaries that would create at or immediately after the Closing a Liability Required Lenders (other than an intercompany Liabilitythe cancellation or termination of any Intercompany Loan Agreement resulting from the termination of the Qualified Securitization Transaction to which such Intercompany Loan Agreement relates and the repayment of all amounts outstanding under such Intercompany Loan Agreement); (iv) not agree to any amendment, waiver or modification of Fermat any provision of any Intercompany Loan Agreement if there is a reasonable possibility that such amendment, waiver or modification would have the effect of (1) forgiving any amount owed by any Subsidiary of the US Borrower to the US Borrower under any Intercompany Loan Agreement, (2) postponing the date that any payment would otherwise be payable to the US Borrower thereunder, (3) further subordinating the US Borrower’s right to payment thereunder to the rights of any other creditors, (4) further restricting the Subsidiary party thereto from applying, or releasing to any extent such Subsidiary from its obligation to apply, cash received by it to pay its allocated share of payments from time to time owing by the US Borrower to International under the Tax Allocation Agreement or (5) changing the transactions contemplated thereunder in a manner that makes them, taken as a whole, less favorable to the US Borrower; and (v) deliver to the Administrative Agent, promptly upon receipt thereof, a copy of each certificate, notice, instruction or other document received or delivered by it in connection with each Intercompany Loan Agreement.
(d) The US Borrower will (i) perform all of its Subsidiaries obligations under the Cayman Loan Agreements, (ii) enforce each Cayman Loan Agreement against the Cayman Affiliate and (iii) not cancel or Descartes and its Subsidiariesterminate, respectivelyor permit the cancellation or termination of, any Cayman Loan Agreement if such cancellation or termination is materially adverse to the US Borrower, and in good faith work (iv) not agree to minimize any 1414958.12A-NYCSR03A - MSW amendment, waiver or modification of any provision of any Cayman Loan Agreement if there is a reasonable possibility that such Liabilities amendment, waiver or modification would have the effect of (and share equally 1) forgiving any costs amount owed by the Cayman Affiliates to the US Borrower thereunder, (including 2) postponing the date that any Taxes imposed on or payment would otherwise be payable to the US Borrower thereunder by Descartes or any more than one year, (3) further subordinating the US Borrower’s right to payment thereunder to the rights of its Subsidiaries or Fermat or any of its Subsidiaries, respectively) arising out of such efforts and actions taken to achieve such outcomes as may be mutually agreed). Each of Descartes and Fermat may also request that the other settle or cancel any other intercompany accounts solely between creditors or among (4) changing the Transferred H&N Subsidiaries transactions contemplated thereunder in a manner that makes them, taken as a whole, materially less favorable to the US Borrower.
(e) The US Borrower will (i) maintain in effect and enforce the Parents’ Side Agreement with the Parent and International in accordance with its terms and (ii) not agree to any amendment, waiver or Transferred Ag Subsidiaries, as applicable, at the sole cost modification of the requesting party (Parents’ Side Agreement which costs shall include any Taxes imposed on is materially adverse to the US Borrower or payable by which is materially adverse to the non-requesting party or any interest of its Subsidiaries as a result of such settlement or cancellation). For the avoidance of doubt, the non-requesting party shall be entitled to deny any such request in its sole discretionLenders.
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