Common use of ASSIGNMENT OF CONTRACTS, RIGHTS, ETC Clause in Contracts

ASSIGNMENT OF CONTRACTS, RIGHTS, ETC. Anything contained in this Agreement to the contrary notwithstanding, this Agreement and the transactions contemplated hereby shall not constitute an agreement (whether by operation of Law or otherwise) or attempted agreement to transfer, sublease or assign any Contract, or any Proceeding or right with respect to any benefit or obligation arising thereunder or resulting therefrom, or any Permit, if an attempted transfer, sublease or assignment thereof, without the required consent of any other party thereto, would constitute a breach thereof or in any way adversely affect the rights or increase the obligations of Purchaser or Sellers thereunder and consent to transfer has not been obtained. The parties shall use reasonable commercial efforts to obtain the consent of any such third party to any of the foregoing to the transfer or assignment thereof to Purchaser in all cases in which such consent is required for such transfer or assignment; provided, however, the expenditure of out-of-pocket costs or other out-of-pocket economic concessions shall not be required by Sellers. If such consent is not timely obtained, the parties shall enter into such commercially reasonable cooperative arrangements (at no additional material costs to Sellers) to provide for Purchaser the benefits and obligations thereunder (at the ongoing expense of Purchaser, with such ongoing expense not to exceed the ongoing expense that would have been incurred under such consent, including maintaining any corporate "group" cost allocations in a manner consistent with past practice) and any and all rights of Sellers thereunder against the other party thereto. If any such arrangement is not commercially reasonably practicable, then such Contract, Proceeding or Permit, as the case may be, shall be deemed to be an Excluded Asset or an Excluded Liability, as the case may be.

ASSIGNMENT OF CONTRACTS, RIGHTS, ETC. Anything contained in Without limiting the representations and warranties of Seller under this Agreement to the contrary notwithstandingAgreement, or any Seller liability or Buyer remedy for any breach thereof, this Agreement and the transactions contemplated hereby shall not constitute an agreement (whether by operation to assign the right, title or interest of Law Seller or otherwise) its Affiliates in, to or attempted agreement to transfer, sublease or assign under any Contract, or any Proceeding claim or right with respect to of any benefit or obligation arising thereunder or resulting therefrom, or therefrom if any Permit, if an attempted transfer, sublease or assignment thereof, without the required consent of any other a third party thereto, would constitute a breach thereof or in any way adversely affect the rights or increase the obligations of Purchaser or Sellers thereunder thereof, unless and until consent to transfer has not been obtained. The parties shall use If, after Seller has expended its reasonable commercial best efforts to obtain the consent of any such third party to any of the foregoing to the transfer or assignment thereof to Purchaser in all cases in which such consent is required for such transfer or assignment; providedconsent, however, the expenditure of out-of-pocket costs or other out-of-pocket economic concessions shall not be required by Sellers. If such consent is not timely obtained, the parties Seller and Buyer shall enter into such commercially cooperate in any reasonable cooperative arrangements (at no additional material costs designed to Sellers) enable Seller to fulfill its obligations hereunder and provide for Purchaser Buyer with the benefits and obligations thereunder (at the ongoing expense after recovery of Purchaser, with such ongoing expense not to exceed the ongoing expense that would have been incurred under such consentall costs), including maintaining any corporate "group" cost allocations in a manner consistent with past practice) enforcement for the benefit of Company and Buyer of any and all rights of Sellers thereunder Seller or any of its Affiliates against such third party arising out of the cancellation by such third party or otherwise. If Seller and Buyer enter into any such arrangement in connection with any such Contract, Buyer and Company shall be responsible for the performance of such Contract and any payments required to be made to the other party theretoto such Contract to the same extent as would have been required if such Contract had been effectively assigned to Buyer or Company on the Closing Date. If any In addition, after the Closing, in order that the full value of every Contract and all claims and demands with respect to such arrangement is not commercially reasonably practicableContracts may be realized, then Seller hereby agrees that it will, at the written request and under the direction of Buyer and as shall be permitted by law and the terms of such Contract, Proceeding take all reasonable action and do or Permit, cause to be done all reasonable things as the case may be, shall be deemed reasonably necessary in order that Buyer or Company may obtain the full benefit and enjoyment of such Contracts for all periods beginning on and after the Closing Date. Notwithstanding the foregoing, but without limiting the representations and warranties of Seller under this Agreement, or any Seller liability or Buyer remedy for any breach thereof, the obligations of Seller or any of its Affiliates under this Section 4.04 shall not include any obligation to be an Excluded Asset make any material payment or an Excluded Liability, as the case may beto incur any material economic burden.

ASSIGNMENT OF CONTRACTS, RIGHTS, ETC. Anything contained in this Agreement to the contrary notwithstanding, this Agreement and the transactions contemplated hereby shall not constitute an agreement (whether by operation of Law or otherwise) or attempted agreement to transfer, sublease or assign any Contract, Contract or any Proceeding claim or right with respect to or any benefit or obligation arising thereunder or resulting therefrom, or any Permit, therefrom if an attempted transfer, sublease or assignment thereofsuch assignment, without the required consent of any other a third party thereto, would constitute a material breach thereof or in any way other material contravention of such Contract and the failure to obtain such consent materially adversely affect affects the rights of Buyer or increase the obligations Sellers thereunder. Sellers will use commercially reasonable efforts (but without any payment of Purchaser or Sellers thereunder and consent to transfer has not been obtained. The parties shall use reasonable commercial efforts money by the Sellers) to obtain the consent of the other parties to any such third party to contracts or any of claim or right or any benefit arising thereunder for the foregoing to the transfer or assignment thereof to Purchaser in all cases in which such consent is required for such transfer or assignment; provided, however, the expenditure of out-of-pocket costs or other out-of-pocket economic concessions shall not be required by SellersBuyer as Buyer may request. If requested by any other party to such Contract, NCS will provide a guarantee of the obligations to be assumed by Buyer thereunder, in form and substance reasonably satisfactory to NCS. If, with respect to a particular contract, any such consent is not timely obtained, and if any attempted assignment thereof would be ineffective or would materially adversely affect the parties shall enter into rights of the Sellers thereunder so that Buyer would not in fact receive all such commercially reasonable cooperative arrangements (at no additional rights in all material costs to Sellers) to provide for Purchaser respects under such contract, the Sellers and Buyer will cooperate in a mutually agreeable alternate arrangement under which Buyer would obtain the benefits and assume the obligations thereunder (at in accordance with this Agreement, including sub-contracting, sub-licensing, or sub-leasing to Buyer, or under which Sellers would enforce for the ongoing expense benefit of PurchaserBuyer, with such ongoing expense not to exceed the ongoing expense that would have been incurred Buyer assuming Sellers' obligations under such consent, including maintaining any corporate "group" cost allocations in a manner consistent with past practice) and contract any and all rights of Sellers thereunder against a third party thereto. If: (i) any consent is required to any such sub-licensing, sub-contracting, sub-leasing or other alternate arrangement and such consent is not obtained, (ii) the substantial benefits under the contract have not been provided to Buyer by any alternative arrangements, and (iii) the other party thereto. If any to such arrangement is contract takes an action or fails to take an action which results in Buyer not commercially reasonably practicablebeing able to substantially enjoy and realize the benefits of the contract in question, then Buyer shall have the right to reject such Contractcontract and the Sellers, Proceeding or Permitimmediately upon the request of Buyex, xxall reassume their position as the case may be, party to such contract and such contract shall be deemed no longer constitute an Assumed Liability. Buyex xxxnowledges that the Sellers have endeavored to be an Excluded Asset or an Excluded Liability, as include on Schedule 1.4(a) the case may be.Contracts of the Sellers that relate

ASSIGNMENT OF CONTRACTS, RIGHTS, ETC. Anything contained in this Agreement to the contrary notwithstanding, this Agreement and the transactions contemplated hereby shall not constitute an agreement (whether by operation of Law or otherwise) assignment or attempted agreement to transfer, sublease or assign assignment of any Contract, lease, commitment, agreement, purchase or sale order, technology, intellectual property, concession, grant, franchise or any Proceeding other asset or property included in the Business or Acquired Assets, or any claim or right with respect to or any benefit or obligation arising thereunder or resulting therefrom, to the extent that an assignment or any Permit, if an attempted transfer, sublease or assignment thereof, without the required consent or waiver of any other party theretoa third party, cannot lawfully be made or if made would constitute a breach thereof or in any way materially adversely affect the rights of Sub thereunder, unless and until such consent or increase the obligations waiver of Purchaser such third party has been duly obtained or Sellers thereunder and consent to transfer has not been obtainedbecome effective by operation of law. The parties MCM shall use its reasonable commercial efforts to obtain the such consent or waiver of any such third party to any of the foregoing to the transfer or assignment thereof to Purchaser Sub in all cases in which such consent or waiver is necessary or required for such assignment or transfer or assignment; provided, however, the expenditure of out-of-pocket costs or other out-of-pocket economic concessions shall not be required by Sellersas contemplated herein. If such consent is not timely obtainedobtained or if, notwithstanding such consent, an assignment or attempted assignment thereof would be ineffective or would materially adversely affect the parties shall enter into rights of MCM thereunder so that Sub would not, in fact, receive all such commercially rights, MCM will use its reasonable cooperative efforts and cooperate with Sub in any lawful arrangements (at no additional material costs to Sellers) necessary or desirable to provide for Purchaser Sub the benefits and obligations thereunder (at the ongoing expense of Purchaser, with such ongoing expense not to exceed the ongoing expense that would have been incurred under such consent, including maintaining any corporate "group" cost allocations in a manner consistent with past practice) and any and all rights of Sellers thereunder against the other party theretobenefit thereunder. If and to the extent that such arrangements cannot be made, Sub shall not have any liability or obligation with respect to such affected Acquired Asset, any other provision of this Agreement or any assumption agreement executed by Sub to the contrary notwithstanding. If and to the extent that such arrangement is not commercially reasonably practicablecan be made so as to afford Sub the benefit thereof, then such Contract, Proceeding or Permit, as the case may be, Sub shall be deemed liable for the corresponding obligations (except to be an Excluded Asset or an Excluded Liability, as the case may beextent herein otherwise provided).

ASSIGNMENT OF CONTRACTS, RIGHTS, ETC. Anything (a) Purchaser acknowledges that certain consents to the transactions contemplated by this Agreement may be required from third parties and that such consents have not been and may not be obtained. From and after the date hereof, the parties hereto shall have a continuing obligation to use their commercially reasonable efforts to cooperate with each other and to obtain promptly all authorizations, approvals, consents, negative clearances or waivers of third parties as may be required to effect the transactions contemplated by this Agreement; provided, that neither Seller nor any of its Affiliates shall be required to repay any indebtedness for borrowed money, amend any contract to increase the amount payable thereunder or otherwise to be materially more burdensome to Seller or any of its Affiliates, commence any litigation, offer or grant any accommodation (financial or otherwise) to any third party, pay any amount or bear any other incremental economic burden to obtain any such authorization, approval, consent, negative clearance or waiver; and provided, further, that no party hereto shall incur any expense that would be payable by any other party hereto without the consent of such other party. Purchaser agrees that neither Seller nor any of its Affiliates shall have any Liability whatsoever arising out of or relating to the failure to obtain any consents that may have been or may be required in connection with the transactions contemplated by this Agreement or because of the default under, or acceleration or termination of, any Assumed Contract or other Purchased Asset, as a result thereof. Purchaser further agrees that no representation, warranty or covenant of Seller contained herein shall be breached, or deemed breached, and no condition to Purchaser's obligations to close the transactions contemplated by this Agreement shall be deemed not satisfied as a result of (i) the failure to obtain any such consent or as a result of any such default, acceleration or termination or (ii) any lawsuit, action, claim or investigation commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain any consent or any such default, acceleration or termination; provided, that this sentence shall not have the effect of curing any breach by Seller of Section 4.2(b). (b) Notwithstanding anything to the contrary contained in this Agreement Agreement, to the contrary notwithstandingextent that the sale, conveyance, transfer, assignment or delivery or attempted sale, conveyance, transfer, assignment or delivery to Purchaser of any Purchased Asset would require any third party's authorization, approval, consent, negative clearance or waiver and such authorization, approval, consent, negative clearance or waiver shall not have been obtained prior to the Closing, this Agreement and the transactions contemplated hereby shall not constitute an agreement (whether by operation of Law or otherwise) or attempted agreement to a sale, conveyance, transfer, sublease assignment or assign any Contractdelivery, or any Proceeding or right with respect to any benefit or obligation arising thereunder or resulting therefrom, or any Permit, if an attempted sale, conveyance, transfer, sublease assignment or assignment thereofdelivery of such Purchased Asset. Seller and Purchaser shall, without the required consent of any and shall cause their respective Affiliates to, cooperate with each other party thereto, would constitute a breach thereof or in any way adversely affect commercially reasonable and economically feasible arrangement to provide that Purchaser shall receive the rights interest of Seller or increase its Affiliates in the benefits under such Purchased Asset and shall be responsible for the Liabilities of Seller under, and the obligations of Purchaser or Sellers thereunder and consent to transfer has not been obtainedSeller with respect to, the Assumed Liabilities. The parties shall use reasonable commercial efforts to obtain Following the consent of any such third party to any Closing, the obligations of the foregoing parties hereto to seek any authorizations, approvals, consents, negative clearances or waivers as set forth in Section 2.3(a) shall continue, and, upon obtaining the transfer requisite authorization, approval, consent, negative clearance or assignment thereof waiver, Seller shall promptly convey, transfer, assign and deliver, or cause to be conveyed, transferred, assigned and delivered, such Purchased Asset to Purchaser in all cases in which such consent is required for such transfer or assignment; provided, however, the expenditure of out-of-pocket costs or other out-of-pocket economic concessions shall not be required by Sellers. If such consent is not timely obtained, the parties shall enter into such commercially reasonable cooperative arrangements (at no additional material costs to Sellers) to provide for Purchaser the benefits and obligations thereunder (at the ongoing expense of Purchaser, with such ongoing expense not to exceed the ongoing expense that would have been incurred under such consent, including maintaining any corporate "group" cost allocations in a manner consistent with past practice) and any and all rights of Sellers thereunder against the other party thereto. If any such arrangement is not commercially reasonably practicable, then such Contract, Proceeding or Permit, as the case may be, shall be deemed to be an Excluded Asset or an Excluded Liability, as the case may behereunder.