Common use of Special Distributions to Facilitate Acquisitions Clause in Contracts

Special Distributions to Facilitate Acquisitions. Notwithstanding any other provision herein to the contrary, the Board of Managers shall be permitted to cause a distribution, loan or other transfer of cash by the Company or one or more of its Controlled Entities to be made solely to one or more member(s) of the Parent Corporation Group (such distribution, loan or other transfer satisfying the following proviso, an “M&A Distribution”), provided, however that (a) each such distribution, loan or other transfer is (i) made at or following such time as the Board of Managers reasonably determines that a specific transaction or series of transactions providing for the direct or indirect acquisition or similar transaction of any entity, business(es), assets, properties or rights (whether by merger, consolidation, recapitalization, sale, transfer or license of assets, properties or rights, purchase or issuance of equity securities, tender offer or otherwise) (an “M&A Event”) is reasonably likely to be consummated by the applicable member of the Parent Corporation Group (including, for the avoidance of doubt, at any time at or after the signing of any definitive transaction agreement) and (ii) used solely to facilitate the consummation of such M&A Event or otherwise in connection with such M&A Event (including for the purpose of paying any consideration (whether at the closing thereof or otherwise (including any contingent or deferred consideration paid or payable following the closing thereof)) , and (b) the applicable member of the Parent Corporation Group (i) contributes (in the case of an M&A Distribution that was a distribution), (ii) transfers in repayment of the applicable M&A Distribution that was a loan (with any interest accrued thereon for the benefit of the Company) or (iii) sells solely in exchange for the applicable previously made M&A Distribution that was not a distribution or a loan, or causes to be contributed (in the case of an M&A Distribution that was a distribution), transferred in repayment of the applicable M&A Distribution that was a loan, or sold solely in exchange for the applicable previously made M&A Distribution that was not a distribution or a loan, as soon as practicable thereafter, to the Company or the applicable Controlled Entities of the Company, the entity, business(es), assets, properties or rights directly or indirectly acquired with such distribution, loan or other transfer, as directed by the Board of Managers. If the M&A Distribution is not used solely to facilitate the consummation of or otherwise in connection with such M&A Event in accordance with the foregoing clause (a) within the time specified therefor by the Board of Managers, the applicable member of the Parent Corporation Group will contribute (in the case of an M&A Distribution that was a distribution), transfer in repayment of the applicable M&A Distribution that was a loan, or retransfer (in the case of an M&A Distribution that was not a distribution or a loan) the amount of such M&A Distribution unspent or not otherwise utilized in connection with such M&A Event and, in the case of an M&A Distribution that was a loan, any interest accrued on the amount being transferred to the Company pursuant to this sentence to the Company or the applicable Controlled Entities of the Company at or prior to 5:00 pm New York time on the applicable date. During any time period between the time of the M&A Distribution and the contribution, repayment or sale contemplated by the foregoing clause (b) of the immediately foregoing sentence, the applicable member of the Parent Corporation Group shall hold such cash, and operate any acquired assets, properties or rights, for the benefit of the Company or the applicable Controlled Entity thereof. The number of Common Units held the Members shall not change as a result of any M&A Distribution or the re-contribution, repayment or retransfer of such M&A Distribution (together with any interest accrued thereon) or contribution, repayment or sale of any assets directly or indirectly acquired with such M&A Distribution, in each case as described in this Section 4.8. For the avoidance of doubt, neither an M&A Distribution nor the re-contribution, repayment or retransfer of such M&A Distribution (together with any interest accrued thereon) or contribution, repayment or sale of any entity, business(es), assets, properties or rights directly or indirectly acquired with such M&A Distribution shall have any effect on the Adjustment Factor or any other distribution or payment contemplated by this Agreement. For purposes of all computations required hereunder, the amount of any M&A Distribution that has not been repaid to the Company or the applicable Controlled Entities of the Company (including, to the extent an acquisition has been consummated with the proceeds of such M&A Distribution but the assets so acquired have not yet been contributed, repaid or sold to the Company or the applicable Controlled Entities of the Company as required hereby, the value of the assets so acquired) shall be treated as an asset owned by the Company or the applicable Controlled Entities of the Company and not by the applicable member of the Parent Corporation Group. For the avoidance of doubt, to the extent that any fees, costs or expenses are incurred or otherwise payable by the Parent Corporation Group in connection with or related to the evaluation, negotiation, performance or execution or consummation of an M&A Event described in this Section 4.8, such fees, costs and expenses will be subject to the payment and reimbursement provisions in Section 6.2(b).

Special Distributions to Facilitate Acquisitions. Notwithstanding any other provision herein to the contrary, the Board of Managers The General Partner shall be permitted to cause a distribution, loan or other transfer of cash by the Company Partnership or one or more of its Controlled Entities Subsidiaries to be made solely to one or more member(s) of the several Partners that are Parent Corporation Group Entities (such distribution, loan or other transfer satisfying the following proviso, an “M&A Distribution”), provided, however that (ai) each such distribution, loan or other transfer is (iA) made at or following such time as the Board of Managers General Partner reasonably determines that a specific transaction or series of transactions providing for the direct or indirect acquisition or similar transaction of any entity, business(es), assets, properties or rights (whether by merger, consolidation, recapitalization, sale, transfer or license of assets, properties or rights, purchase or issuance of equity securities, tender offer or otherwise) (an “M&A Event”) is reasonably likely to be consummated by the applicable member of the Parent Corporation Group (including, for the avoidance of doubt, at any time at or after the signing of any definitive transaction agreement) and (iiB) used solely to facilitate the consummation of an acquisition by a Parent Entity within the time reasonably specified therefor by the General Partner at the time of such M&A Event or otherwise in connection Distribution (with such M&A Event (including any interest accrued thereon for the purpose benefit of paying any consideration (whether at the closing thereof or otherwise (including any contingent or deferred consideration paid or payable following the closing thereofPartnership)) , and (bii) the applicable member of the such Parent Corporation Group Entities (ix) contributes contribute (in the case of an M&A Distribution that was a distribution), (iiy) transfers transfer in repayment of the applicable M&A Distribution that was a loan (with any interest accrued thereon for the benefit of the Company) loan, or (iiiz) sells sell solely in exchange for the applicable previously made M&A Distribution that was not a distribution or a loan, or causes cause to be contributed (in the case of an M&A Distribution that was a distribution), transferred in repayment of the applicable M&A Distribution that was a loan, or sold solely in exchange for the applicable previously made M&A Distribution that was not a distribution or a loan, as soon as practicable thereafter, to the Company Partnership or the applicable Controlled Entities Subsidiaries of the Company, Partnership the entity, business(es), assets, properties or rights assets directly or indirectly acquired with such distribution, loan or other transfer, as directed by the Board of ManagersGeneral Partner. If the M&A Distribution is not used solely to facilitate the consummation of or otherwise in connection with such M&A Event an acquisition in accordance with the foregoing clause (ai) within the time specified therefor by the Board of ManagersGeneral Partner, the applicable member of the Parent Corporation Group Entities will contribute (in the case of an M&A Distribution that was a distribution), transfer in repayment of the applicable M&A Distribution that was a loan, or retransfer (in the case of an M&A Distribution that was not a distribution or a loan) the full amount of such M&A Distribution unspent or not otherwise utilized in connection with such M&A Event and, in the case of an M&A Distribution that was a loan, and any interest accrued on the amount being transferred thereon to the Company pursuant to this sentence to the Company Partnership or the applicable Controlled Entities Subsidiaries of the Company Partnership at or prior to 5:00 pm New York time on the applicable date. During any time period between the time of the M&A Distribution and the contribution, repayment or sale contemplated by the foregoing clause (bii) of the immediately foregoing sentence, the applicable member of the Parent Corporation Group Entities shall hold such cash, and operate any acquired assets, properties or rights, for the benefit of the Company or the applicable Controlled Entity thereofPartnership. The number and classes of Common Partnership Units held by the Members Parent Entities and their wholly owned Subsidiaries in the aggregate shall not change as a result of any M&A Distribution or the re-contribution, repayment or retransfer of such M&A Distribution (together with any interest accrued thereon) or contribution, repayment or sale of any assets directly or indirectly acquired with such M&A Distribution, in each case as described in this Section 4.84.9. For the avoidance of doubt, neither an M&A Distribution nor the re-contribution, repayment or retransfer of such M&A Distribution (together with any interest accrued thereon) or contribution, repayment or sale of any entity, business(es), assets, properties or rights assets directly or indirectly acquired with such M&A Distribution shall (A) result in any adjustment to the Aggregate Distribution Threshold or the Distribution Threshold Per Profits Interest or (B) have any effect on the Adjustment Factor or any other distribution or payment contemplated by this AgreementExchange Factor. For purposes of all computations required hereunderunder this Agreement, the amount of (x) any M&A Distribution that has not been repaid to the Company Partnership or the applicable Controlled Entities Subsidiaries of the Company Partnership (including, to the extent an acquisition has been consummated with the proceeds of such M&A Distribution but the assets so acquired have not yet been contributed, repaid or sold to the Company Partnership or the applicable Controlled Entities Subsidiaries of the Company Partnership as required hereby, the value of the assets so acquired) and (y) any Issuance Consideration that has not been contributed to the Partnership in accordance with Section 3.3(e), shall be treated as an asset owned by the Company Partnership or the applicable Controlled Entities Subsidiaries of the Company Partnership and not by the applicable member of the any Parent Corporation GroupEntity. For the avoidance of doubt, to To the extent that any fees, costs or and expenses are incurred or otherwise payable by the Parent Corporation Group in connection with or related to the evaluation, negotiation, performance or execution or consummation pursuit of an M&A Event acquisition described in this Section 4.84.9, such fees, costs and expenses will be subject to the payment and reimbursement provisions in Section 6.2(b).