On PG 70 of 315 it discusses the Transfer
of the Sellers’ Tax Attributes to the Buyer.
Is it saying that if certain Assets/Sale Transactions do
not qualify as a Tax Reorganization then no transfer of
the Sellers’ Tax Attributes can happen?
“ (b) Buyer may, at any time on or before
the earlier of (i) 15 days prior to the effective
date of the Bankruptcy Plan and
(ii) December 1, 2019, elect, by providing
to Sellers written notice of its election,
to treat one or more of the transactions
(each, a “Designated Sale Transaction”)
set forth in this Agreement as not
qualifying as a Tax Reorganization, which
election shall be effective unless
Designated Tax Advisor cannot provide a
Tax Opinion that such Designated Sale
Transaction can be completed in a manner
that would not be treated as a “reorganization”
within the meaning of section 368 of the Code;
provided, however, that in connection with any
such Buyer election to treat all the transactions
described in this Article II as
Designated Sale Transactions (resulting in
no transfer of Sellers’ Tax attributes to Buyer),
the Parties shall, if requested by Sellers in
writing, identify a business of the Sellers
that would become part of the Excluded Assets
and consider in good faith any other changes
to the structure of the transaction that are
reasonable and necessary as a commercial,
bankruptcy law and other legal matter to
achieve that result. If Buyer does not elect
pursuant to this Section 2.12(b) to treat all
the transactions described in this Article II as
Designated Sale Transactions (resulting in no
transfer of Sellers’ Tax attributes to Buyer), or
any such election is not effective, then Buyer
and Sellers shall continue to comply with Section 9.2(a). “
