Assignment of Contracts and Rights. (a) Notwithstanding anything herein to the contrary, this Agreement shall not constitute an agreement to assign any Purchased Asset or any rights thereunder if (a) an attempted assignment, without the consent of a third party (each, an “Assignment Consent”), would constitute a breach or adversely affect the rights of the Buyer, the Seller or any Selling Subsidiary thereunder, and (b) the Seller has failed to obtain such Assignment Consent, despite commercially reasonable efforts to do so (each such Purchased Asset or right, a “Non-Assignable Asset”). For a period of up to twelve (12) months after the Closing, the Seller shall continue to use its commercially reasonable efforts to obtain all Assignment Consents necessary to transfer all Non-Assignable Assets as soon as practicable, and to the extent that and as long as an Assignment Consent cannot be obtained, the Seller or the Selling Subsidiary, as applicable, will retain the relevant Non-Assignable Asset and all associated Liabilities; provided, that the Seller, the Selling Subsidiaries and the Buyer will otherwise behave and treat each other as if the transfer or assignment had effectively taken place on the Closing Date. In particular, (i) the Seller and the Selling Subsidiaries will follow the Buyer's reasonable instructions regarding the exercise of any rights with respect to each Non-Assignable Asset, (ii) the Buyer shall indemnify the Seller and the Selling Subsidiaries against any and all Liabilities associated with each Non-Assignable Asset, (iii) the Seller and the Selling Subsidiaries shall apply the standard of care of a prudent businessman with respect to each Non-Assignable Asset, (iv) the Buyer shall use its commercially reasonable efforts to assist the Seller and the Selling Subsidiaries in performance of any obligations arising from each Non-Assignable Asset if such assistance is requested by the Seller or the Selling Subsidiaries, and (v) the Seller and the Selling Subsidiaries shall pass on to the Buyer all net benefits arising from each Non-Assignable Asset. (b) Subject to Section 1.7(a), the Parties recognize and acknowledge that certain Business Contracts relate to both the supply of raw materials and supplies to the Business and the supply of raw materials and supplies to other businesses of the Seller and its Affiliates. The Seller will use its commercially reasonable efforts to amend any such Business Contract to delineate the rights and obligations related to the Business and to provide for assignment of those rights to the Buyer or, in the event that the Seller is unable to amend any such Business Contract prior to the Closing, the Seller shall assign such Business Contract to Holdco at Closing and then Holdco shall, and the Buyer shall cause Holdco to, use commercially reasonable efforts to make the components of such Business Contract that are not related to the Business available to the Seller and its Affiliates following the Closing for the duration of such Business Contract (including any extensions of the term thereof).
Appears in 1 contract
Samples: Purchase Agreement (Momentive Specialty Chemicals Inc.)
Assignment of Contracts and Rights. (a) To the maximum extent permitted by the Bankruptcy Code, the Assumed Contracts and Intellectual Property Rights shall be assumed by Seller and assigned to Purchaser at the Closing pursuant to Sections 105, 363 and/or 365 of the Bankruptcy Code. Notwithstanding anything herein any other provision of this Agreement to the contrary, this Agreement shall not constitute an agreement to assign any Purchased Asset or any rights right thereunder if (a) an attempted assignment, without the consent of a third party (each, an “Assignment Consent”)party, would constitute a breach or in any way adversely affect the rights of the Buyer, the Purchaser or Seller or any Selling Subsidiary thereunder, and .
(b) If required by applicable law or the terms thereof to validly assign any Assumed Contract or Intellectual Property Right without breach or violation thereof, Seller has failed agrees to obtain such Assignment Consent, despite use commercially reasonable efforts to do so obtain the consent of each other party to any such Assumed Contract or Intellectual Property Right prior to the Closing; provided, however, that no modification of any such Assumed Contract or Intellectual Property Right shall be made without Purchaser's prior written consent and the form of the consent to assignment shall be subject to the prior written approval of Purchaser (each such Purchased Asset which shall not be withheld unreasonably).
(c) If there are any Required Consents that have not yet been obtained (or right, a “Non-Assignable Asset”). For a period otherwise are not in full force and effect) as of up to twelve (12) months after the Closing, in the case of each Assumed Contract or Intellectual Property Right as to which such Required Consent was not obtained (or otherwise are not in full force and effect) (each, a "Restricted Purchased Asset"), Purchaser may, but shall not be required to, waive the closing conditions as to any such Required Consent and either: (i) elect to have Seller shall continue to use its commercially reasonable efforts to obtain all Assignment Consents necessary the Required Consent; or (ii) elect to transfer all Non-Assignable Assets as soon as practicable, and to the extent have Seller retain that and as long as an Assignment Consent cannot be obtained, the Seller or the Selling Subsidiary, as applicable, will retain the relevant Non-Assignable Restricted Purchased Asset and all associated Liabilities; provided, that liabilities arising therefrom or relating thereto (without any adjustment to the Seller, the Selling Subsidiaries and the Buyer will otherwise behave and treat each other as if the transfer or assignment had effectively taken place on the Closing DatePurchase Price). In particular, (i) the If Purchaser elects to have Seller and the Selling Subsidiaries will follow the Buyer's reasonable instructions regarding the exercise of any rights with respect to each Non-Assignable Asset, (ii) the Buyer shall indemnify the Seller and the Selling Subsidiaries against any and all Liabilities associated with each Non-Assignable Asset, (iii) the Seller and the Selling Subsidiaries shall apply the standard of care of a prudent businessman with respect to each Non-Assignable Asset, (iv) the Buyer shall use continue its commercially reasonable efforts to assist the Seller obtain any Required Consent and the Selling Subsidiaries in performance of Closing occurs, notwithstanding this Agreement, neither this Agreement nor the Assignment and Assumption Agreement nor any obligations arising from each Non-Assignable Asset if such assistance is requested by the Seller or the Selling Subsidiaries, and (v) the Seller and the Selling Subsidiaries shall pass on to the Buyer all net benefits arising from each Non-Assignable Asset.
(b) Subject to Section 1.7(a), the Parties recognize and acknowledge that certain Business Contracts relate to both the supply of raw materials and supplies to the Business and the supply of raw materials and supplies to other businesses of the Seller and its Affiliates. The Seller will use its commercially reasonable efforts to amend any such Business Contract to delineate the rights and obligations document related to the Business consummation of the transactions contemplated by this Agreement shall constitute a sale, assignment, assumption, transfer, conveyance or delivery or an attempted sale, assignment, assumption, transfer, conveyance or delivery of any Restricted Purchased Asset, and to provide for assignment of those rights to the Buyer or, in the event that the Seller is unable to amend any such Business Contract prior to following the Closing, the parties shall use their respective commercially reasonable efforts, and cooperate with each other, to obtain the Required Consent relating to each Restricted Purchased Asset as quickly as practicable; provided, however, that the payment of money by Purchaser shall not be required in connection therewith. Prior to the obtaining of such Required Consents, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Purchaser the benefits of use of any and all Restricted Purchased Asset for their respective terms (or any right or benefit arising thereunder, including the enforcement for the benefit of Purchaser of any and all rights of Seller against a third party thereunder). When a Required Consent for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Purchased Asset is obtained, Seller shall assign promptly assign, transfer, convey and deliver such Business Contract Restricted Purchased Asset to Holdco at Closing and then Holdco shallPurchaser, and Purchaser shall assume the Buyer obligations under such Restricted Purchased Asset assigned to Purchaser from and after the date of assignment to Purchaser pursuant to an assignment and assumption agreement substantially similar in terms and conditions set forth in the Assignment and Assumption Agreement (which agreement the Parties shall cause Holdco toprepare, use commercially reasonable efforts to make execute and deliver in good faith at the components time of such Business Contract that are not related transfer, all at no additional cost to the Business available to the Seller and its Affiliates following the Closing for the duration of such Business Contract (including any extensions of the term thereofPurchaser).
Appears in 1 contract
Assignment of Contracts and Rights. (a) Notwithstanding anything herein With respect to any material Contract and any claim, right or benefit arising thereunder or resulting therefrom that constitute Transferred Assets, promptly after the date hereof, to the contrary, this Agreement shall not constitute an agreement to assign any Purchased Asset or any rights thereunder if (a) an attempted assignment, without the consent of a third party (each, an “Assignment Consent”), would constitute a breach or adversely affect the rights of the extent requested by Buyer, the Seller or any Selling Subsidiary thereunder, and (b) the Seller has failed to obtain such Assignment Consent, despite commercially reasonable efforts to do so (each such Purchased Asset or right, a “Non-Assignable Asset”). For a period of up to twelve (12) months after the Closing, the Seller shall continue to will use its commercially reasonable efforts to obtain all Assignment Consents necessary the written consent of the other parties to transfer all Non-Assignable Assets as soon as practicable, and any such Contract to the extent assignment thereof to Buyer or written confirmation from such parties reasonably satisfactory in form and substance to Buyer confirming that and as long as an Assignment Consent cansuch consent is not be obtained, the Seller or the Selling Subsidiary, as applicable, will retain the relevant Non-Assignable Asset and all associated Liabilities; provided, that the Seller, the Selling Subsidiaries and the Buyer will otherwise behave and treat each other as if the transfer or assignment had effectively taken place on the Closing Daterequired. In particularthis regard, (i) the Seller and the Selling Subsidiaries will follow the BuyerSeller's reasonable instructions regarding efforts will not include the exercise payment of any rights with respect to each Non-Assignable Asset, (ii) the Buyer shall indemnify the Seller and the Selling Subsidiaries against any and all Liabilities associated with each Non-Assignable Asset, (iii) the Seller and the Selling Subsidiaries shall apply the standard of care of a prudent businessman with respect to each Non-Assignable Asset, (iv) the Buyer shall use its commercially reasonable efforts to assist the Seller and the Selling Subsidiaries in performance of any obligations arising from each Non-Assignable Asset if such assistance is requested by the Seller or the Selling Subsidiaries, and (v) the Seller and the Selling Subsidiaries shall pass on to the Buyer all net benefits arising from each Non-Assignable Assetmoney.
(b) Subject If such consent, waiver or confirmation is not obtained with respect to Section 1.7(a), the Parties recognize and acknowledge that certain Business Contracts relate to both the supply of raw materials and supplies to the Business and the supply of raw materials and supplies to other businesses of the Seller and its Affiliates. The Seller will use its commercially reasonable efforts to amend any such Business Contract and notwithstanding the provisions of Section 8.01(b) Buyer elects to delineate the rights and obligations related to the Business and to provide for assignment of those rights to the Buyer or, in the event that the Seller is unable to amend any such Business Contract prior to consummate the Closing, Seller and Buyer shall cooperate in an arrangement reasonably satisfactory to Buyer and Seller under which Buyer will obtain, to the extent practicable, the claims, rights and benefits and assume the corresponding obligations thereunder in accordance with this Agreement, including subcontracting, sub-licensing or sub-leasing to Buyer, or under which Seller shall assign will enforce for the benefit of Buyer, with Buyer assuming Seller's obligations to be performed after the Closing Date, any and all claims, rights and benefits of Seller against a third party thereto. Seller will promptly pay to Buyer when received all monies received by Seller under or with regard to any Transferred Asset or any claim, right or benefit arising thereunder not transferred to Buyer pursuant to this Section 2.05(b).
(c) Buyer understands that Seller and Stockholder will not attempt to obtain the consent of the Vendors to the assignment of the Share Purchase Agreement rights listed in Section 2.01(d). If at any time after the Closing Date any Vendor fails or refuses to provide to Buyer the benefit of any such Business Contract to Holdco at Closing and then Holdco rights, Seller shall, at the request and the Buyer shall cause Holdco toexpense of Buyer, use commercially reasonable efforts take all action reasonably necessary to make the components enforce such rights on behalf of such Business Contract that are not related to the Business available to the Seller and its Affiliates following the Closing for the duration of such Business Contract (including any extensions of the term thereof)Buyer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Aftermarket Technology Corp)
Assignment of Contracts and Rights. (a) Notwithstanding anything herein To the extent that any Contract to be sold, transferred, conveyed or assigned (any sale, transfer, conveyance or assignment, a “Transfer”) to the contrary, this Agreement shall Purchaser pursuant to the terms of Section 2.01 is not constitute an agreement capable of being Transferred to assign any Purchased Asset or any rights thereunder if the Purchaser (aafter giving effect to the Sale Order) an attempted assignment, without the consent Consent of a third party Person (each such Contract, a “Consent Pending Contract”), or if such Transfer or attempted Transfer would, or if the subsequent Transfer or attempted Transfer of the equity interests of the Purchaser would, constitute a breach thereof or a violation of any Law, nothing in this Agreement or in any document, agreement or instrument delivered pursuant to this Agreement will constitute a Transfer or an attempted Transfer thereof prior to the time at which all Consents necessary for such Transfer will have been obtained unless an Order of the Bankruptcy Court effects such Transfer without Consent.
(b) Sellers shall hold and not reject pursuant to section 365 of the Bankruptcy Code any Consent Pending Contracts for a period of sixty (60) days following the Closing Date (the “Contract Retention Period”) and, as soon as practicable after receiving further written notice(s) (each, an “Assignment ConsentAssumption Notice”)) from Purchaser during the Contract Retention Period requesting assumption and assignment of any Consent Pending Contract, would constitute a breach or adversely affect the rights Sellers shall, subject to Purchaser’s demonstrating adequate assurance of future performance thereunder, take all actions reasonably necessary to seek to assume and assign to Purchaser pursuant to section 365 of the Buyer, the Seller or Bankruptcy Code any Selling Subsidiary thereunderContract(s) set forth in an Assumption Notice, and (bany applicable Determined Cure Cost shall be satisfied in accordance with Section 2.09 hereof. The Sellers agree and acknowledge that the covenant set forth in this Section 2.14(b) the Seller has failed to obtain such Assignment Consent, despite commercially reasonable efforts to do so (each such Purchased Asset or right, a “Non-Assignable Asset”). For a period of up to twelve (12) months after shall survive the Closing, the Seller shall continue to use its commercially reasonable efforts to obtain all Assignment Consents necessary to transfer all Non-Assignable Assets as soon as practicable, and to the extent that and as long as an Assignment Consent cannot be obtained, the Seller or the Selling Subsidiary, as applicable, will retain the relevant Non-Assignable Asset and all associated Liabilities; provided, that the Sellerthat, the Selling Subsidiaries and the Buyer will otherwise behave and treat each other as if the transfer or assignment had effectively taken place on the Closing Date. In particular, (i) the Seller and the Selling Subsidiaries will follow the Buyer's reasonable instructions regarding the exercise of any rights with respect to each Non-Assignable Assetany Consent Pending Contract, Purchaser shall compensate the Sellers for Liabilities for the continuation of such Consent Pending Contracts during the Contract Retention Period up to and including the date which is ten (ii10) the Buyer shall indemnify the Seller and the Selling Subsidiaries against any and all Liabilities associated with each Non-Assignable Asset, (iii) the Seller and the Selling Subsidiaries shall apply the standard days following Sellers’ receipt of care of a prudent businessman with respect to each Non-Assignable Asset, (iv) the Buyer shall use its commercially reasonable efforts to assist the Seller and the Selling Subsidiaries in performance of any obligations arising written notice from each Non-Assignable Asset if such assistance is requested by the Seller or the Selling Subsidiaries, and (v) the Seller and the Selling Subsidiaries shall pass on to the Buyer all net benefits arising from each Non-Assignable Asset.
(b) Subject to Section 1.7(a), the Parties recognize and acknowledge that certain Business Contracts relate to both the supply of raw materials and supplies to the Business and the supply of raw materials and supplies to other businesses Purchaser authorizing rejection of the Seller and its Affiliates. The Seller will use its commercially reasonable efforts to amend any such Business Contract to delineate the rights and obligations related to the Business and to provide for assignment of those rights to the Buyer same or, in the event case of any Consent Pending Contracts that relate to any Owned Real Property or any Leased Real Property, the Seller date which is unable forty-five (45) days following Sellers’ receipt of written notice from Purchaser authorizing rejection of the same, it being understood and agreed that Sellers’ obligation to amend assume and assign any Consent Pending Contract shall be conditioned upon Purchaser’s payment of such Business amounts and that Purchaser’s covenant to pay such amounts shall survive the Closing until the termination of the Contract prior Retention Period unless otherwise authorized by Purchaser by written notice to Sellers to be rejected. Notwithstanding anything in this Agreement to the Closingcontrary, on the Seller date any Contract is assumed and assigned to Purchaser pursuant to this Section 2.14(b), such Contract shall assign such Business be deemed an Assigned Contract to Holdco and deemed scheduled on Section 3.12(a) under the appropriate heading for all purposes under this Agreement. Sellers shall have the right at Closing and then Holdco shall, and the Buyer shall cause Holdco to, use commercially reasonable efforts to make the components of such Business Contract that are not related to the Business available to the Seller and its Affiliates any time following the Closing for the duration of such Business Contract (including any extensions expiration of the term thereof)Contract Retention Period to reject any Consent Pending Contracts pursuant to section 365 of the Bankruptcy Code.
Appears in 1 contract
Assignment of Contracts and Rights. (a) Notwithstanding anything herein any other provision of this Agreement to the contrary, this Agreement shall not constitute an agreement to assign or transfer any Purchased Asset of the Transferred Assets or any rights thereunder Transferred Liabilities pursuant to the Pre-Closing Restructuring if (a) an attempted assignmentassignment or transfer thereof, without the approval, authorization or consent of, filing with, notification to, or granting or issuing of a any License, Order waiver or permit by, any third party or Governmental Entity (eachcollectively, an “Assignment ConsentApprovals” and such Transferred Assets or Transferred Liabilities, collectively, the “Non-Assignable Assets”), would constitute a breach or other contravention thereof or result in any acceleration of obligations of any Seller or the exercise or rights or remedies by any counterparty or would be a violation of Law, be ineffective, void or voidable or would materially adversely affect the rights of Buyer thereunder; provided that this Section 2.3(a) shall not affect whether any such asset shall be deemed a Transferred Asset for any other purpose under this Agreement. Without limitation of the Buyerobligations set forth in Section 6.3(a), prior to the Seller or any Selling Subsidiary thereundercompletion of the Pre-Closing Restructuring, Parent will use its commercially reasonable efforts, and (b) the Seller has failed Buyer will cooperate with such efforts as reasonably requested by Parent, to provide notices and to obtain, or cause to be obtained, any Approval from a third party required to assign or transfer any Transferred Asset; provided, however, that Parent shall not be required to pay any consideration in order to obtain any such Assignment Consent, despite commercially reasonable efforts to do so (each such Purchased Asset or right, Approval. If a “Non-Assignable Asset”). For Asset cannot be assigned or transferred prior to the completion of the Pre-Closing Restructuring because of the failure to obtain any such Approval from a period of up to third party, (i) Parent shall have the continuing obligation until twelve (12) months after the ClosingClosing Date to, the Seller shall continue and to cause its Affiliates to, use its commercially reasonable best efforts to obtain all Assignment Consents necessary to transfer all Non-Assignable Assets secure such Approval as soon promptly as practicable, and to the extent that and as long as an Assignment Consent cannot be obtained, the Seller or the Selling SubsidiaryBuyer will cooperate with Parent with such efforts, as applicablereasonably requested by Parent, and (ii) each Party will retain cooperate in any lawful and commercially reasonable arrangement under which (A) Buyer would, in compliance with Law, receive the relevant economic claims, rights and benefits under such Non-Assignable Asset and all associated Liabilities; provided(including, that the Sellerif applicable, the Selling Subsidiaries and right to terminate such Non-Assignable Asset in accordance with the terms thereof upon the Buyer’s request), (B) to the extent the Buyer will otherwise behave receives the economic claims, rights and treat each other as if the transfer or assignment had effectively taken place on the Closing Date. In particular, (i) the Seller and the Selling Subsidiaries will follow the Buyer's reasonable instructions regarding the exercise of any rights with respect to each benefits under such Non-Assignable Asset, (ii) the Buyer shall indemnify be responsible and bear all Transferred Liabilities associated with such Non-Assignable Asset in accordance with this Agreement, including by means of subcontracting, sublicensing or subleasing arrangement (provided that Buyer shall not be responsible for Liabilities that constitute Excluded Liabilities), and (C) Parent would enforce for the Seller and the Selling Subsidiaries against benefit of Buyer any and all Liabilities of its rights against a third party associated with each such Non-Assignable Asset, and Parent would promptly pay to Buyer when received all monies received by Parent under any Non-Assignable Asset or any claim, right or benefit arising thereunder. If the Approval for the transfer and assignment of any such Non-Assignable Asset is thereafter obtained, Parent shall, or shall cause its applicable Affiliate to, promptly assign and transfer such Non-Assignable Asset to Buyer at no additional cost to Buyer.
(iiib) Any Contract to which Parent or any of its Affiliates is a party that is not primarily related to the Seller Business and that relates to both the Selling Subsidiaries Business and any Retained Business (each, a “Shared Contract”) shall apply be (a) assigned, transferred and conveyed pursuant to the standard of care of a prudent businessman Pre-Closing Restructuring only with respect to each Non(and preserving the meaning of) those portions that relate exclusively to the Business, to a Company, if so assignable, transferable or conveyable, or (b) appropriately amended prior to, on or after the Closing (and, if necessary or deemed advisable by Parent or Buyer, new Contracts with respect thereto shall be executed), so that the applicable Company shall be entitled to the rights and benefit of those parts of the Shared Contract that relate exclusively to the Business and shall assume the related portion of any Transferred Liabilities contemplated by the Pre-Assignable AssetClosing Restructuring. Unless otherwise agreed by Buyer, (iv) the Buyer Parent shall use its commercially reasonable efforts to assist ensure that such amendments and new Contracts are on pricing terms substantially similar (individually or in the Seller aggregate) to the terms applicable to the Business under the associated Shared Contract and otherwise on terms and conditions substantially similar (individually or in the Selling Subsidiaries aggregate) to Buyer than the terms and conditions applicable to the Business under the associated Shared Contract; provided, however, that Parent shall not be required to incur any material Liability or pay any consideration in performance of connection therewith. Notwithstanding the foregoing, (i) in no event shall any obligations arising from each Person be required to assign (or amend), either in its entirety or in part, any Shared Contract that is a Non-Assignable Asset and if such assistance any Shared Contract is requested by the Seller or the Selling Subsidiaries, and (v) the Seller and the Selling Subsidiaries shall pass on to the Buyer all net benefits arising from each a Non-Assignable Asset.
Asset and cannot be so partially assigned (bor amended) Subject at Closing, until the earliest of (A) such time as the applicable approval is obtained or denied in writing and (B) the expiration of the term of such Shared Contract in accordance with its current term or the execution of a replacement Contract following the Closing by Buyer or its Affiliate, then Parent will cooperate with Buyer and the applicable Company to Section 1.7(a)establish an agency type or other similar arrangement reasonably satisfactory to Parent and Buyer intended to both (x) provide Buyer or the applicable Company, to the fullest extent practicable under such Shared Contract, the Parties recognize claims, rights and acknowledge benefits of those portions that certain Business Contracts relate to both the supply of raw materials and supplies exclusively to the Business and (y) cause Buyer or the supply applicable Company to bear all Liabilities thereunder from and after the Closing in accordance with this Agreement (including by means of raw materials and supplies to other businesses any subcontracting, sublicensing or subleasing arrangement). In furtherance of the Seller and foregoing, Parent shall promptly pay (or cause to be paid) to Buyer or the applicable Company when received all monies received by Parent or any of its Affiliates. The Seller will use its commercially reasonable efforts to amend Affiliates under any such Business Shared Contract to delineate the rights and obligations related that is a Non-Assignable Asset or any claim or right or any benefit arising thereunder, except to the Business and to provide for assignment of those rights to extent the Buyer or, in the event that the Seller is unable to amend any such Business Contract prior to the Closing, the Seller shall assign such Business Contract to Holdco at Closing and then Holdco shall, and the Buyer shall cause Holdco to, use commercially reasonable efforts to make the components of such Business Contract that are not related to the Business available to the Seller and its Affiliates following the Closing for the duration of such Business Contract (including any extensions of the term thereof)same represents an Excluded Asset.
Appears in 1 contract
Assignment of Contracts and Rights. (a) To the maximum extent permitted by the Bankruptcy Code, the Purchased Assets shall be assumed by and assigned to Buyer pursuant to Section 365 of the Bankruptcy Code as of the Closing Date or such other date as specified in an Order of the Bankruptcy Court. Notwithstanding anything herein any other provision of this Agreement to the contrary, this Agreement shall not constitute an agreement to assign any Purchased Asset asset or any rights right thereunder if (a) an attempted assignment, assignment without the consent of a third party (each, an “Assignment Consent”), would constitute a breach or in any way adversely affect the rights of Buyer or Sellers thereunder. If such consent is not obtained or such assignment is not attainable pursuant to Section 105, 363 or 365 of the Bankruptcy Code, other than as a result of the failure to pay Disputed Cure Costs or Undisputed Cure Costs that are not Assumed Liabilities, then such Purchased Assets shall not be transferred hereunder and the Closing shall proceed with respect to the remaining Purchased Assets and Sellers, at Buyer’s sole cost and expense, the Seller or any Selling Subsidiary thereundershall use their commercially reasonable efforts, and (b) the Seller has failed Buyer shall cooperate with Sellers, to obtain any such Assignment Consent, despite commercially reasonable efforts consent and to do so (each such Purchased Asset or right, a “Non-Assignable Asset”). For a period resolve the impracticalities of up to twelve (12) months assignment after the Closing, the Seller shall continue to use its commercially reasonable efforts to obtain all Assignment Consents necessary to transfer all Non-Assignable Assets as soon as practicable, and to . To the extent that and as long as an Assignment Consent canthe consents referred to in this Section 1.4 have not be obtained, the Seller or the Selling Subsidiary, as applicable, will retain the relevant Non-Assignable Asset and all associated Liabilities; provided, that the Seller, the Selling Subsidiaries and the Buyer will otherwise behave and treat each other as if the transfer or assignment had effectively taken place on the Closing Date. In particular, (i) the Seller and the Selling Subsidiaries will follow the Buyer's reasonable instructions regarding the exercise of any rights with respect to each Non-Assignable Asset, (ii) the Buyer shall indemnify the Seller and the Selling Subsidiaries against any and all Liabilities associated with each Non-Assignable Asset, (iii) the Seller and the Selling Subsidiaries shall apply the standard of care of a prudent businessman with respect to each Non-Assignable Asset, (iv) the Buyer shall use its commercially reasonable efforts to assist the Seller and the Selling Subsidiaries in performance of any obligations arising from each Non-Assignable Asset if such assistance is requested been obtained by the Seller or the Selling Subsidiaries, and (v) the Seller and the Selling Subsidiaries shall pass on to the Buyer all net benefits arising from each Non-Assignable Asset.
(b) Subject to Section 1.7(a), the Parties recognize and acknowledge that certain Business Contracts relate to both the supply of raw materials and supplies to the Business and the supply of raw materials and supplies to other businesses of the Seller and its Affiliates. The Seller will use its commercially reasonable efforts to amend any such Business Contract to delineate the rights and obligations related to the Business and to provide for assignment of those rights to the Buyer or, in the event that the Seller is unable to amend any such Business Contract Sellers prior to the Closing, it being understood and agreed that any such consents shall be limited to consents associated with Permits constituting Purchased Assets, until the Seller impracticalities of assignment referred to in this Section 1.4 hereof are resolved, Sellers shall assign such Business Contract to Holdco at Closing and then Holdco shall, and the Buyer shall cause Holdco to, use their commercially reasonable efforts to make (i) provide Buyer the components benefits of any Purchased Asset referred to in this Section 1.4, (ii) cooperate in any reasonable and lawful arrangement designed to provide such Business benefits to Buyer, and (iii) enforce, for the account and benefit, and at the cost, of Buyer, any and all rights of Sellers arising from the Purchased Assets referred to in this Section 1.4 against such issuer thereof and all other parties thereto (including the right to elect to terminate any Contract in accordance with the terms thereof on the advice of Buyer). To the extent that are not related Buyer is provided the benefits pursuant to this Section 1.4 of any Purchased Asset, Buyer shall perform, on behalf of Sellers, for the benefit of the issuer thereof and/or all other parties thereto, the obligations of Sellers thereunder or in connection therewith, but only to the Business available to the Seller and its Affiliates following the Closing for the duration of extent that such Business Contract (including action by Buyer would not result in any extensions of the term thereof)material default thereunder or in connection therewith. Nothing contained in this Section 1.4 shall constitute a waiver of, or impair, Buyer's rights under Section 4.2.6.
Appears in 1 contract
Samples: Asset Purchase Agreement (Butler International Inc /Md/)
Assignment of Contracts and Rights. (a) Notwithstanding anything herein in this Agreement to the contrary, this Agreement shall not constitute an agreement to assign any Purchased Asset Assigned Contract or any rights claim, right or any benefit arising thereunder or resulting therefrom if (a) an attempted and for so long as such assignment, without the approval, consent or waiver of a third party (each, an “Assignment Consent”)thereto, would constitute a breach or other contravention of such Assigned Contract or in any way adversely affect the rights of Seller thereunder so that Purchaser would not in fact receive all such rights. If such approval, consent or waiver is not obtained, or if an attempted assignment thereof would be ineffective under the Buyerterms of such Assigned Contract or would adversely affect the rights of Seller thereunder so that Purchaser would not in fact receive all such rights, Purchaser and Seller will cooperate, in a mutually agreeable lawful arrangement designed to provide to Purchaser the Seller or any Selling Subsidiary thereundereconomic claims, rights and benefits and liabilities of use of such Assigned Contract, and (b) Seller shall continue to perform such Contract or comply with the Seller has failed terms thereof upon the direction of, and with all necessary help from, Purchaser; provided, that Purchaser shall bear any incremental economic burden resulting from implementation of any such alternative arrangement pursuant to obtain this Section 1.03. To the extent, and only to the extent, Purchaser is able to receive the economic claims, rights and benefits under any Assigned Contract, Purchaser shall be responsible for the Assumed Liabilities, if any, arising under such Assignment Consent, despite commercially reasonable efforts to do so (each such Purchased Asset or right, a “Non-Assignable Asset”)Assigned Contract. For a period of up to twelve (12) months after Following the Closing, the Seller parties hereto shall continue have a continuing obligation to use its commercially reasonable efforts cooperate with each other and to obtain promptly all Assignment Consents necessary to transfer all Non-Assignable Assets as soon as practicablesuch approvals, and to the extent that and as long as an Assignment Consent cannot be obtained, the Seller consents or the Selling Subsidiary, as applicable, will retain the relevant Non-Assignable Asset and all associated Liabilitieswaivers; provided, that neither Seller nor any of its Affiliates shall be required to commence any litigation or offer or grant any accommodation (financial or otherwise) to any third party to obtain such approvals, consents, or waivers. Upon obtaining the Sellerrequisite approval, the Selling Subsidiaries and the Buyer will otherwise behave and treat each other as if the transfer consent or assignment had effectively taken place on the Closing Date. In particularwaiver, (i) the Seller and the Selling Subsidiaries will follow the Buyer's reasonable instructions regarding the exercise of any rights with respect to each Non-Assignable Asset, (ii) the Buyer shall indemnify the Seller and the Selling Subsidiaries against any and all Liabilities associated with each Non-Assignable Asset, (iii) the Seller and the Selling Subsidiaries shall apply the standard of care of a prudent businessman with respect to each Non-Assignable Asset, (iv) the Buyer shall use its commercially reasonable efforts to assist the Seller and the Selling Subsidiaries in performance of any obligations arising from each Non-Assignable Asset if such assistance is requested by the Seller or the Selling Subsidiaries, and (v) the Seller and the Selling Subsidiaries shall pass on to the Buyer all net benefits arising from each Non-Assignable Asset.
(b) Subject to Section 1.7(a), the Parties recognize and acknowledge that certain Business Contracts relate to both the supply of raw materials and supplies to the Business and the supply of raw materials and supplies to other businesses of the Seller and its Affiliates. The Seller will use its commercially reasonable efforts to amend any such Business Contract to delineate the rights and obligations related to the Business and to provide for assignment of those rights to the Buyer or, in the event that the Seller is unable to amend any such Business Contract prior to the Closing, the Seller shall promptly convey, transfer, assign and deliver, or cause to be conveyed, transferred, assigned and delivered, such Business Contract Assigned Contract, claim, right or benefit to Holdco at Closing and then Holdco shall, and the Buyer shall cause Holdco to, use commercially reasonable efforts to make the components of such Business Contract that are not related to the Business available to the Seller and its Affiliates following the Closing for the duration of such Business Contract (including any extensions of the term thereof)Purchaser hereunder.
Appears in 1 contract
Assignment of Contracts and Rights. (a) Notwithstanding anything herein To the extent that any Assigned Contract to be sold, transferred, conveyed or assigned (any such sale, transfer, conveyance or assignment, a “Transfer”) to the contrary, this Agreement shall Purchaser or its designated Affiliate pursuant to the terms of Section 2.01(a) is not constitute an agreement capable of being Transferred to assign any Purchased Asset or any rights thereunder if the Purchaser (aafter giving effect to the Sale Orders) an attempted assignment, without the consent Consent of a third party Person (each such Assigned Contract, a “Consent Pending Contract”), or if such Transfer or attempted Transfer would, or if the subsequent Transfer or attempted Transfer of the equity interests of the Purchaser would, constitute a breach thereof or a violation of any Law, nothing in this Agreement or in any document, agreement or instrument delivered pursuant to this Agreement will constitute a Transfer or an attempted Transfer thereof prior to the time at which all Consents necessary for such Transfer will have been obtained unless in respect of Assigned Contracts, an Order of the a Bankruptcy Court is sufficient to effect such Transfer without Consent, and such Order has been entered, has become a Final Order and is in form and substance satisfactory to the Purchaser.
(b) At the written direction of the Purchaser, the Sellers shall hold and not reject pursuant to Section 365 of the Bankruptcy Code, or disclaim pursuant to the CCAA (if applicable), any Consent Pending Contracts for a period of sixty (60) days following the Closing Date (the “Contract Retention Period”) and, after receiving further written notice(s) (each, an “Assignment ConsentAssumption Notice”), would constitute a breach or adversely affect ) from the rights Purchaser during the Contract Retention Period requesting assumption and assignment of the Buyerany Consent Pending Contract, the Seller or any Selling Subsidiary thereunderSellers shall, and (b) the Seller has failed to obtain such Assignment Consent, despite commercially reasonable efforts to do so (each such Purchased Asset or right, a “Non-Assignable Asset”). For a period of up to twelve (12) months after the Closing, the Seller shall continue to use its commercially reasonable efforts to obtain all Assignment Consents necessary to transfer all Non-Assignable Assets as soon as practicable, and subject to the extent that and as long as an Assignment Consent cannot be obtained, the Seller demonstration or the Selling Subsidiary, as applicable, will retain the relevant Non-Assignable Asset and all associated Liabilities; provided, that the Seller, the Selling Subsidiaries and the Buyer will otherwise behave and treat each other as if the transfer or assignment had effectively taken place on the Closing Date. In particular, (i) the Seller and the Selling Subsidiaries will follow the Buyer's reasonable instructions regarding the exercise of any rights with respect to each Non-Assignable Asset, (ii) the Buyer shall indemnify the Seller and the Selling Subsidiaries against any and all Liabilities associated with each Non-Assignable Asset, (iii) the Seller and the Selling Subsidiaries shall apply the standard of care of a prudent businessman with respect to each Non-Assignable Asset, (iv) the Buyer shall use its commercially reasonable efforts to assist the Seller and the Selling Subsidiaries in performance of any obligations arising from each Non-Assignable Asset if such assistance is requested showing by the Seller or the Selling Subsidiaries, and Purchaser of adequate assurance of future performance thereunder (v) the Seller and the Selling Subsidiaries shall pass on to the Buyer all net benefits arising from each Non-Assignable Asset.
(b) Subject to Section 1.7(aif applicable), the Parties recognize and acknowledge that certain Business Contracts relate to both the supply of raw materials and supplies to the Business and the supply of raw materials and supplies to other businesses of the Seller and its Affiliates. The Seller will use its commercially reasonable efforts to amend any such Business Contract to delineate the rights and obligations related to the Business and to provide for assignment of those rights to the Buyer or, in the event that the Seller is unable to amend any such Business Contract prior to the Closing, the Seller shall assign such Business Contract to Holdco at Closing and then Holdco shall, and the Buyer shall cause Holdco to, use commercially reasonable efforts to make the components of such Business Contract that are not related (A) assume and assign to the Business available Purchaser pursuant to the Seller and its Affiliates following the Closing for the duration of such Business Contract (including any extensions Section 365 of the term thereof).Bankruptcy Code such Consent Pending Contract, and
Appears in 1 contract
Samples: Purchase Agreement
Assignment of Contracts and Rights. (a) Notwithstanding anything herein to If an attempted assignment of any Assumed Contract would be ineffective or would constitute a breach or other contravention of such Assumed Contract that would adversely affect the contraryrights of Seller thereunder in such a manner that Buyer would not in fact receive all such rights, then this Agreement shall not constitute an agreement to assign any Purchased Asset or any rights thereunder if (a) an attempted assignment, without the consent of a third party (each, an “Assignment Consent”), would constitute a breach or adversely affect the rights of the Buyer, the Seller or any Selling Subsidiary thereunder, and such Assumed Contract.
(b) the Seller has failed to obtain such Assignment Consent, despite commercially reasonable efforts to do so (each such Purchased Asset or right, a “Non-Assignable Asset”). For a period of up to twelve (12) months after the Closing, the Seller shall continue to use its commercially reasonable efforts to obtain all Assignment Consents necessary to transfer all Non-Assignable Assets as soon as practicable, If and to the extent that and Seller is unable to assign an Assumed Contract as long as an Assignment Consent cannot contemplated by Section 4.06(a), Seller shall continue to be obtained, bound by any such Assumed Contract (the Seller “Non-Assigned Contract”). To the maximum extent permitted by Applicable Law or the Selling Subsidiary, as applicable, will retain terms of the relevant Non-Assignable Asset and all associated Liabilities; provided, that the Seller, the Selling Subsidiaries and the Buyer will otherwise behave and treat each other as if the transfer or assignment had effectively taken place on the Closing Date. In particularAssigned Contract, (i) Seller shall make the Seller and the Selling Subsidiaries will follow the Buyer's reasonable instructions regarding the exercise benefit of any rights with respect to each such Non-Assignable AssetAssigned Contract available to Buyer, and (ii) the Buyer assignment provisions of this Agreement shall indemnify operate to the Seller and extent permitted by Applicable Law or the Selling Subsidiaries against any and all Liabilities associated with each applicable Non-Assignable AssetAssigned Contract to create a subcontract, (iii) sublease or sublicense with Buyer to perform each relevant Non-Assigned Contract at a price equal to the monies, rights and other consideration receivable or payable by Seller and the Selling Subsidiaries shall apply the standard of care of a prudent businessman with respect to each the performance by or enjoyment of Buyer under such subcontract, sublease or sublicense. To the extent such benefit is made available, and/or such subcontract, sublease or sublicense is created, (A) Buyer shall pay, perform and discharge fully all obligations of Seller under any such Non-Assignable AssetAssigned Contract from and after the Closing Date, (ivB) the Seller shall, without further consideration therefor, pay and remit to Buyer shall use its commercially reasonable efforts to assist the Seller promptly any monies, rights and the Selling Subsidiaries other consideration received in performance respect of any obligations arising from each such Non-Assignable Asset if such assistance is requested by the Seller or the Selling SubsidiariesAssigned Contract, and (vC) the Seller shall exercise or exploit its rights and the Selling Subsidiaries shall pass on to the Buyer options under all net benefits arising from each such Non-Assignable AssetAssigned Contracts only as directed by Buyer.
(bc) Subject to If and when any third party consent contemplated by this Section 1.7(a), the Parties recognize and acknowledge that certain Business Contracts relate to both the supply of raw materials and supplies to the Business and the supply of raw materials and supplies to other businesses of the Seller and its Affiliates. The Seller will use its commercially reasonable efforts to amend 4.06 shall be obtained or any such Business Non-Assigned Contract to delineate the shall otherwise be assignable, Seller shall promptly assign all of its rights and obligations related thereunder or in connection therewith to the Business and to provide for assignment Buyer without payment of those rights to the Buyer or, in the event that the Seller is unable to amend any such Business Contract prior to the Closing, the Seller shall assign such Business Contract to Holdco at Closing and then Holdco shallfurther consideration therefor, and the Buyer shall cause Holdco to, use commercially reasonable efforts to make the components of assume such Business Contract that are not related to the Business available to the Seller rights and its Affiliates following the Closing for the duration of such Business Contract (including any extensions of the term thereof)obligations.
Appears in 1 contract
Assignment of Contracts and Rights. (a) Notwithstanding anything herein to the contrarycontrary contained in this Agreement (other than Section 2.3), this Agreement and the other Transaction Documents shall not constitute an agreement to assign or transfer any Contract or Permit constituting a Purchased Asset Asset, or any rights thereunder other Purchased Asset, if (a) an attempted assignmentassignment thereof, without the consent of a any third party (each, an “Assignment Consent”)thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of the Buyer, the Seller or any Selling Subsidiary Buyer thereunder, and (b) the Seller has failed to obtain such Assignment Consent, despite commercially reasonable efforts to do so (each such Purchased Asset or right, a “Non-Assignable Asset”). For a period of up to twelve (12) months after the Closing, the Seller shall continue to use its commercially reasonable efforts to obtain all Assignment Consents necessary to transfer all Non-Assignable Assets as soon as practicable, and to the extent that and as long as an Assignment Consent cannot be obtained, the Seller or the Selling Subsidiary, as applicable, will retain the relevant Non-Assignable Asset and all associated Liabilities; provided, that the Seller, the Selling Subsidiaries and the Buyer will otherwise behave and treat each other as if the transfer or assignment had effectively taken place on the Closing Date. In particular, (i) the Seller and the Selling Subsidiaries will follow the Buyer's reasonable instructions regarding the exercise of any rights with respect to each Non-Assignable Asset, (ii) the Buyer shall indemnify the Seller and the Selling Subsidiaries against any and all Liabilities associated with each Non-Assignable Asset, (iii) the Seller and the Selling Subsidiaries shall apply the standard of care of a prudent businessman with respect to each Non-Assignable Asset, (iv) the Buyer shall use its commercially reasonable efforts to assist the Seller and the Selling Subsidiaries in performance of any obligations arising from each Non-Assignable Asset if such assistance is requested by the Seller or the Selling Subsidiaries, and (v) the Seller and the Selling Subsidiaries shall pass on to the Buyer all net benefits arising from each Non-Assignable Asset.
(b) Subject Prior to Section 1.7(a)Closing, the Parties recognize and acknowledge that certain Business Contracts relate to both the supply of raw materials and supplies to the Business and the supply of raw materials and supplies to other businesses of the Seller and its Affiliates. The Seller will use its commercially reasonable efforts to amend obtain the consent of all necessary third parties to any Contract or Permit constituting a Purchased Asset, or any other Purchased Asset that is not assignable or transferable to Buyer either by virtue of the provisions thereof or under applicable Legal Requirement without the consent of one or more third parties, for the assignment thereof to Buyer or its designated Affiliate; provided however, that Seller shall not be required to make any payment or concession in order to obtain any such Business authorizations, approvals, consents or waivers.
(c) If any Contract or Permit constituting a Purchased Asset, or any other Purchased Asset is not assignable or transferable to delineate Buyer either by virtue of the rights and obligations related provisions thereof or under applicable Legal Requirement without the consent of one or more third parties (each a “Non-Assignable Right”), Seller shall use its commercially reasonable efforts to obtain such consents after the Business and execution of this Agreement until such consent is obtained; provided however, that Seller shall not be required to provide for assignment of those rights make any payment or concession in order to the Buyer or, in the event that the Seller is unable to amend obtain any such Business Contract authorizations, approvals, consents or waivers.
(d) If any such consent cannot be obtained prior to the Closing, then notwithstanding anything to the contrary in this Agreement or the Transaction Documents, (i) this Agreement and the related instruments of transfer shall not constitute an assignment or transfer of the Non-Assignable Right and (A) Seller shall assign such Business Contract to Holdco at Closing and then Holdco shall, and the Buyer shall cause Holdco to, use its commercially reasonable efforts to make obtain such consent as soon as practicable after Closing and (B) Buyer shall cooperate, to the components extent commercially reasonable with Seller in Seller’s efforts to obtain such consent; and (ii) at Buyer’s election, (A) the Non-Assignable Right shall be an Excluded Asset and Buyer shall have no obligation pursuant to Section 1.1(a) or Section 1.3(a) or otherwise with respect to any such Non-Assignable Right or any Liability with respect thereto or (B) Seller shall use its commercially reasonable efforts to cooperate in an arrangement under which Buyer would obtain the benefits and assume the obligations of such Business Contract that are not related Non-Assignable Right, including by (1) entering into appropriate and reasonable alternative arrangements on terms mutually agreeable to the Business available to the Buyer and Seller and its Affiliates following (2) enforcing, at the Closing cost and for the duration account of such Business Contract (including Buyer, any extensions and all rights of Seller against the other party thereto arising out of the term thereof)breach or cancellation thereof by such party or otherwise. Notwithstanding the foregoing, no Party hereto shall be required to make any payment or concession in order to obtain any authorizations, approvals, consents or waivers.
Appears in 1 contract
Assignment of Contracts and Rights. (a) Notwithstanding anything herein To the extent that any Assigned Contract to be sold, transferred, conveyed or assigned (any such sale, transfer, conveyance or assignment, a “Transfer”) to the contrary, this Agreement shall Purchaser or its designated Affiliate pursuant to the terms of Section 2.01(a) is not constitute an agreement capable of being Transferred to assign any Purchased Asset or any rights thereunder if the Purchaser (aafter giving effect to the Sale Orders) an attempted assignment, without the consent Consent of a third party Person (each such Assigned Contract, a “Consent Pending Contract”), or if such Transfer or attempted Transfer would, or if the subsequent Transfer or attempted Transfer of the equity interests of the Purchaser would, constitute a breach thereof or a violation of any Law, nothing in this Agreement or in any document, agreement or instrument delivered pursuant to this Agreement will constitute a Transfer or an attempted Transfer thereof prior to the time at which all Consents necessary for such Transfer will have been obtained unless in respect of Assigned Contracts, an Order of the a Bankruptcy Court is sufficient to effect such Transfer without Consent, and such Order has been entered, has become a Final Order and is in form and substance satisfactory to the Purchaser.
(b) At the written direction of the Purchaser, the Sellers shall hold and not reject pursuant to Section 365 of the Bankruptcy Code, or disclaim pursuant to the CCAA (if applicable), any Consent Pending Contracts for a period of sixty (60) days following the Closing Date (the “Contract Retention Period”) and, after receiving further written notice(s) (each, an “Assignment ConsentAssumption Notice”), would constitute a breach or adversely affect ) from the rights Purchaser during the Contract Retention Period requesting assumption and assignment of the Buyerany Consent Pending Contract, the Seller or any Selling Subsidiary thereunderSellers shall, and (b) the Seller has failed to obtain such Assignment Consent, despite commercially reasonable efforts to do so (each such Purchased Asset or right, a “Non-Assignable Asset”). For a period of up to twelve (12) months after the Closing, the Seller shall continue to use its commercially reasonable efforts to obtain all Assignment Consents necessary to transfer all Non-Assignable Assets as soon as practicable, and subject to the extent that and as long as an Assignment Consent cannot be obtained, the Seller demonstration or the Selling Subsidiary, as applicable, will retain the relevant Non-Assignable Asset and all associated Liabilities; provided, that the Seller, the Selling Subsidiaries and the Buyer will otherwise behave and treat each other as if the transfer or assignment had effectively taken place on the Closing Date. In particular, (i) the Seller and the Selling Subsidiaries will follow the Buyer's reasonable instructions regarding the exercise of any rights with respect to each Non-Assignable Asset, (ii) the Buyer shall indemnify the Seller and the Selling Subsidiaries against any and all Liabilities associated with each Non-Assignable Asset, (iii) the Seller and the Selling Subsidiaries shall apply the standard of care of a prudent businessman with respect to each Non-Assignable Asset, (iv) the Buyer shall use its commercially reasonable efforts to assist the Seller and the Selling Subsidiaries in performance of any obligations arising from each Non-Assignable Asset if such assistance is requested showing by the Seller or the Selling Subsidiaries, and Purchaser of adequate assurance of future performance thereunder (v) the Seller and the Selling Subsidiaries shall pass on to the Buyer all net benefits arising from each Non-Assignable Asset.
(b) Subject to Section 1.7(aif applicable), the Parties recognize and acknowledge that certain Business Contracts relate to both the supply of raw materials and supplies to the Business and the supply of raw materials and supplies to other businesses of the Seller and its Affiliates. The Seller will use its commercially reasonable efforts to amend any such Business Contract to delineate the rights and obligations related to the Business and to provide for assignment of those rights to the Buyer or, in the event that the Seller is unable to amend any such Business Contract prior to the Closing, the Seller shall assign such Business Contract to Holdco at Closing and then Holdco shall, and the Buyer shall cause Holdco to, use commercially reasonable efforts to make the components of such Business Contract that are not related (A) assume and assign to the Business available Purchaser pursuant to Section 365 of the Bankruptcy Code such Consent Pending Contract, and (B) obtain all necessary Consents to assign to the Seller and its Affiliates following the Closing for the duration of Purchaser such Business Consent Pending Contract (including in respect of Assigned Contracts that are Canadian Contracts), provided that in each case any extensions applicable Determined Cure Costs shall be satisfied in accordance with Section 2.06 hereof. The Sellers agree and acknowledge that the covenant set forth in this Section 2.11(b) shall survive the Closing; provided, that, with respect to any Consent Pending Contract, the Purchaser shall compensate the Sellers for Liabilities directly attributable to the continuation of such Consent Pending Contract during the Contract Retention Period up to and including the date NYDOCS03/882968.12 that a Final Order rejecting or disclaiming (if applicable) such Consent Pending Contract is entered, it being understood and agreed that the Sellers’ obligation to assume and assign any Consent Pending Contract, and pursue any Consent to assign such Consent Pending Contract to the Purchaser, shall be conditioned upon the Purchaser’s payment of such amounts, if any, and that the Purchaser’s covenant to pay such amounts shall survive the Closing until the termination of the term thereofContract Retention Period. Notwithstanding anything in this Agreement to the contrary, on the date any Consent Pending Contract is assumed and assigned to the Purchaser, and, as necessary, otherwise assigned to the Purchaser under applicable Canadian Law, pursuant to this Section 2.11(b), such Consent Pending Contract shall be deemed an Assigned Contract and deemed scheduled in Section 3.13(a) of the Sellers’ Disclosure Schedule under the appropriate heading for all purposes under this Agreement. The Sellers shall have the right at any time following the expiration of the Contract Retention Period to reject any Consent Pending Contracts pursuant to Section 365 of the Bankruptcy Code or disclaim any Consent Pending Contracts which are Canadian Contracts pursuant to the CCAA.
(c) The Sellers shall, in respect of each Consent Pending Contract:
(i) enforce any rights of the Sellers arising from such Consent Pending Contract against any non-Debtor counterparty thereto;
(ii) at no time use any such Consent Pending Contract for its own purposes or assign or provide the benefit of such Consent Pending Contract to any other Person;
(iii) hold in trust for the benefit of the Purchaser and pay over to the Purchaser, all monies collected by or paid to the Sellers in respect of such Consent Pending Contract; and
(iv) take all such actions and do, or cause to be done, all such things at the request of the Purchaser as shall reasonably be necessary in order that the value and benefits of the Consent Pending Contracts shall be preserved and enure to the benefit of the Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Milacron Inc)
Assignment of Contracts and Rights. (a) Notwithstanding anything herein With respect to any Assumed Contract or security clearance (i) which by its terms requires the consent, approval, novation and/or waiver of any third party to the contraryassignment of such assumed contract from Seller to Buyer, this Agreement shall not constitute an agreement to assign any Purchased Asset or any rights thereunder if (aii) an the transfer or attempted assignment, without the consent transfer of a third party (each, an “Assignment Consent”), which would constitute a breach or adversely affect the rights a violation of the Buyerany applicable law, the Seller nothing in this Agreement shall constitute a transfer or any Selling Subsidiary thereunder, and attempted transfer thereof.
(b) the Seller has failed With respect to obtain such Assignment Consentany Assumed Contract or security clearance subject to paragraph (a), despite commercially reasonable efforts above and as a material inducement for Buyer to do so (each such Purchased Asset or right, a “Non-Assignable Asset”). For a period of up to twelve (12) months after the Closingenter into this Agreement, the Seller shall continue to use its commercially reasonable best efforts to obtain all Assignment Consents necessary consents and approvals as promptly as possible after Closing and:
(i) Effective as of the Closing Date, Buyer shall receive the claims, rights and benefits, and assume the corresponding obligations, under the such Assumed Contracts in accordance with this Agreement and, to the extent necessary, Seller and Buyer shall enter into arrangements, including, but not limited to, subcontracting, sub-licensing or sub-leasing arrangements, or other arrangements reasonably satisfactory to Buyer under which Seller would enforce such Assumed Contracts for the benefit of Buyer, with Buyer assuming Seller's rights and obligations, including any and all claims, rights and benefits of Seller against a third party thereto;
(ii) Commencing on the Closing Date and continuing thereafter, Seller shall promptly pay to Buyer all monies received by Seller under such Assumed Contracts (including with respect to receivables) or any claims, rights or benefits arising thereunder not assigned or transferred directly to Buyer;
(iii) Seller shall enter into arrangements reasonably satisfactory to Buyer to secure for Buyer use of all intellectual property rights (whether or not constituting Purchased Assets) necessary to transfer all Non-Assignable Assets perform under such Assumed Contracts in substantially the same manner as soon as practicableprior to Closing; and
(iv) Seller shall enter into arrangements reasonably satisfactory to Buyer, and to the extent that and legally permissible, under which Buyer shall obtain, effective as long as an Assignment Consent cannot be obtained, the Seller or the Selling Subsidiary, as applicable, will retain the relevant Non-Assignable Asset and all associated Liabilities; provided, that the Seller, the Selling Subsidiaries and the Buyer will otherwise behave and treat each other as if the transfer or assignment had effectively taken place on of the Closing Date. In particular, the benefits of such permits, authorizations, and security clearances as are necessary to operate the Business and perform any such Assumed Contract, without limitation, subcontracting, subleasing and sublicensing arrangements.
(ic) the Seller and the Selling Subsidiaries will follow the Buyer's reasonable instructions regarding the exercise of any rights with With respect to each Non-Assignable AssetAssumed Contract that is not transferred at the time of Closing, (ii) the Buyer such Assumed Contract shall indemnify the Seller and the Selling Subsidiaries against any and transfer automatically to Buyer, in accordance with all Liabilities associated with each Non-Assignable Asset, (iii) the Seller and the Selling Subsidiaries shall apply the standard of care of a prudent businessman with respect to each Non-Assignable Asset, (iv) the Buyer shall use its commercially reasonable efforts to assist the Seller and the Selling Subsidiaries in performance of any obligations arising from each Non-Assignable Asset if such assistance is requested by the Seller or the Selling Subsidiaries, and (v) the Seller and the Selling Subsidiaries shall pass on to the Buyer all net benefits arising from each Non-Assignable Asset.
(b) Subject to Section 1.7(a), the Parties recognize and acknowledge that certain Business Contracts relate to both the supply of raw materials and supplies to the Business and the supply of raw materials and supplies to other businesses of the Seller terms and its Affiliates. The Seller will use its commercially reasonable efforts to amend any provisions of this Agreement and such Business Contract to delineate Assumed Contract, immediately upon the rights and obligations related to the Business and to provide for assignment of those rights to the Buyer or, in the event that the Seller is unable to amend any such Business Contract prior to the Closing, the Seller shall assign such Business Contract to Holdco at Closing and then Holdco shall, and the Buyer shall cause Holdco to, use commercially reasonable efforts to make the components of such Business Contract that are not related to the Business available to the Seller and its Affiliates following the Closing for the duration of such Business Contract (including any extensions attainment of the term thereof)consent described above.
Appears in 1 contract
