party's obligation to effect the
Closing be satisfied no later than the time at which the conditions to effect
the closing of the transactions contemplated by the Transaction Agreement are
satisfied (other than the condition contained in Section 8.1(f) of the
Transaction Agreement), and (b) to effect the Closing immediately following the
satisfaction of the conditions to the obligations to effect the closing of the
transactions contemplated by the Transaction Agreement (other than the condition
contained in Section 8.1(f) of the Transaction Agreement).
In furtherance and
not in limitation of the foregoing, if, at the time the conditions to effect the
closing under the Transaction Agreement have been met (other than the condition
contained in Section 8.1(f) of the Transaction Agreement), the New Parent
Revolver Execution has not occurred, New Parent shall execute and deliver, and
Transferor shall accept, the JV Note and JV Security Agreement, such that the
conditions to this Agreement shall be satisfied on or before the time that the
conditions to effect the closing under the Transaction Agreement have been
satisfied (other than the condition contained in Section 8.1(f) of the
Transaction Agreement).
19
ARTICLE IX.
TERMINATION
SECTION 9.1.
TERMINATION.
THIS AGREEMENT SHALL TERMINATE PRIOR TO THE
CLOSING SOLELY AS FOLLOWS (AND MAY NOT BE TERMINATED FOLLOWING THE CLOSING):
(A)
BY MUTUAL WRITTEN CONSENT OF THE PARTIES HERETO;
(B)
UPON TERMINATION OF THE TRANSACTION AGREEMENT; OR
(C)
BY EITHER PARTY IN THE EVENT THAT THE CLOSING HAS NOT OCCURRED ON
OR BEFORE DECEMBER 31, 2009, UNLESS THE FAILURE OF THE CLOSING TO OCCUR BY SUCH
DATE SHALL BE DUE TO THE FAILURE OF THE PARTY SEEKING TO TERMINATE THIS
AGREEMENT TO PERFORM OR OBSERVE THE COVENANTS AND AGREEMENTS OF SUCH PARTY SET
FORTH IN THIS AGREEMENT.
SECTION 9.2.
EFFECT OF TERMINATION.
IN THE EVENT THIS AGREEMENT IS
TERMINATED PURSUANT TO SECTION 9.1 ALL FURTHER OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL TERMINATE, EXCEPT FOR THE OBLIGATIONS SET FORTH IN THIS
SECTION 9.2 AND ARTICLE XI, AND EXCEPT THAT SUCH TERMINATION SHALL NOT RELIEVE
ANY PARTY HERETO OF ANY LIABILITY FOR ANY BREACH OF THIS AGREEMENT PRIOR TO SUCH
TERMINATION.
ARTICLE X.
STATUS OF OTHER AGREEMENTS
SECTION 10.1.
JV LLC AGREEMENT.
AT THE CLOSING, THE JV LLC AGREEMENT
SHALL TERMINATE AS BETWEEN THE RAMIUS PARTIES THAT ARE PARTIES THERETO, ON THE
ONE HAND, AND THE UNICREDIT PARTIES THAT ARE PARTIES THERETO, ON THE OTHER,
EXCEPT THAT:
(A)
TRANSFEROR SHALL REMAIN ENTITLED TO ITS RIGHTS IN AND TO THE HVB
RETAINED FEE STREAM (AS DEFINED IN THE JV LLC AGREEMENT) PURSUANT TO
SECTION 3.6(H)(II) AS IF THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT WERE
OCCURRING IN CONNECTION WITH A PUT/CALL EVENT OR BUY/SELL RIGHT UNDER THE JV LLC
AGREEMENT AND RAMIUS SHALL CAUSE JV TO MAKE SUCH PAYMENTS IN ACCORDANCE WITH THE
JV LLC AGREEMENT;.
(B)
SECTION 8.1 (CONFIDENTIALITY) OF THE JV LLC AGREEMENT AS TO HVB AG
AND ITS SUBSIDIARIES (AS DEFINED IN THE JV LLC AGREEMENT) WILL SURVIVE
INDEFINITELY;
(C)
SO LONG AS THE HVB SOLICITATION AGREEMENT