Certain Provisions Regarding Assignments. (a) Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign or transfer any Contract or other Asset or any claim, right, benefit or obligation thereunder or resulting therefrom if (i) an assignment or transfer thereof, without the Consent of a third party thereto, would constitute a breach or violation thereof or would in any way adversely affect the rights (upon transfer) of the applicable Purchaser under such Contract or other Asset or result in the loss or cancellation thereof or require a payment thereunder by reason of the assignment or transfer thereof and (ii) such Consent is not obtained at or prior to the Closing (any such Contract or other Asset is to be referred to herein as a “Restricted Asset”) (it being understood that this Section 2.3(a) shall in no way limit any party’s obligations under Section 6.3(c)). (b) If the parties are not successful in obtaining a Consent at or prior to the Closing, then (i) the applicable Seller shall continue to keep the applicable Restricted Asset in effect in accordance with its terms and shall provide the applicable Purchaser with the benefits of the Restricted Asset in question accruing after the Closing Date to the extent that such Seller may provide such benefits (A) in a manner not in violation of the terms of such Restricted Asset (subject to Section 2.3(d) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if such Seller provides such benefits to such Purchaser, such Purchaser shall perform at its sole expense the obligations of such Seller to be performed after the Closing under the Restricted Asset in question. Once a Consent for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained, the applicable Seller shall promptly assign, transfer and deliver such Restricted Asset to applicable Purchaser, and such Purchaser shall assume the obligations under such Restricted Asset that relate to the period from and after the date of assignment, transfer and delivery of such Restricted Asset to such Purchaser. The terms of this Section 2.3(b) shall not apply with respect to Shared Contracts, it being understood that the treatment of Shared Contracts is addressed in Section 2.3(c). (c) Prior to the Closing, each Seller shall use its reasonable efforts, and each Purchaser shall use its reasonable efforts to cooperate with each Seller (and, if necessary and desirable, to work with the third parties to the Shared Contracts) in an effort to (i) divide, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of the Shared Contracts and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (A) the applicable Purchaser is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Purchased Contracts (the “Business Portion”) (so that, subsequent to the Closing, the applicable Seller shall have no post-Closing rights or post-Closing obligations with respect to the Business Portion of the Shared Contract) and (B) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to the Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to the Closing, the applicable Purchaser shall have no rights or obligations with respect to the Non-Business Portion of the Shared Contract). If the parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the previous sentence, then (i) the applicable Purchaser shall be entitled to the benefits of the Business Portion of any such Shared Contract accruing after the Closing Date to the extent that the applicable Seller may provide such benefits (A) in a manner not in violation of the terms of such Shared Contract (and subject to Section 2.3(d) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if the applicable Seller provides such benefits to the applicable Purchaser, such Purchaser shall perform at its sole expense the obligations of the applicable Seller to be performed after the Closing under the Business Portion of such Shared Contract. (d) In order to effect the parties’ intent as set forth in Sections 2.3(b) and (c) above, if any Consent with respect to a Restricted Asset is not obtained or any division, modification or replication with respect to a Shared Contract is not procured prior to the Closing, the applicable Seller and the applicable Purchaser shall cooperate (at their own expense) in any lawful arrangement reasonably acceptable to such Seller and such Purchaser under which such Purchaser shall obtain the economic claims, rights and benefits under the Restricted Asset or Shared Contract with respect to which the Consent has not been obtained in accordance with this Agreement. Such reasonable arrangement may include subcontracting, sublicensing or subleasing to such Purchaser any and all rights of the applicable Seller under such Restricted Asset or Business Portion of a Shared Contract. To the extent a Purchaser receives the economic claims, rights and benefits under a Restricted Asset or Shared Contract as set forth above, such Purchaser shall be responsible for the Assumed Obligations, if any, arising under such Restricted Asset or Business Portion of a Shared Contract. (e) Notwithstanding anything to the contrary contained in this Section 2.3 or elsewhere in this Agreement, in the case of a Transferred Real Property Lease that is a Restricted Asset, (i) if the applicable Seller is permitted to sublease the applicable premises to the applicable Purchaser without the consent of the landlord under the terms of the lease, such Seller shall sublease the premises to such Purchaser for the rent under the lease without markup or profit of any kind until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) one day before the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise; or (ii) if the applicable Seller is not permitted to sublease the premises to the applicable Purchaser without the landlord’s consent under the terms of the lease, such Seller shall retain the operations of the Business conducted on the premises and the Employees located at the premises (provided that for all other purposes of this Agreement such Employees and the Assets located at such premises shall be treated as having been transferred to the Purchasers as provided in this Agreement) and shall conduct such operations on the premises for the benefit and at the expense and direction of such Purchaser until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise, and during such time such Seller shall turn over to the Purchaser all income received from such operations and such Purchaser shall pay all expenses of such operations. During the continuance of any sublease under clause (i) above or any operation under clause (ii) above, the applicable Seller shall take any action to extend, terminate, amend or otherwise deal with the lease reasonably requested by the applicable Purchaser at such Purchaser’s expense and shall consult with such Purchaser prior to taking any such action not so requested by such Purchaser.
Appears in 3 contracts
Samples: Supply Agreement (Marconi Corp PLC), Supply Agreement (Telent PLC), Supply Agreement (Marconi Corp PLC)
Certain Provisions Regarding Assignments. (a) Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign or transfer any Contract or other Asset Permit or any claimClaim, right, benefit or obligation thereunder or resulting therefrom if (i) an assignment or transfer thereof, without the Consent of a third party thereto, would constitute a breach or violation thereof or would in any way adversely affect the rights (upon transfer) of the applicable Purchaser under such Contract or other Asset or result in the loss or cancellation thereof or require a payment thereunder by reason of the assignment or transfer thereof and (ii) such Consent is not obtained at or prior to the Closing (any such Contract or other Asset is to be referred to herein as a “Restricted Asset”) (it being understood that this Section 2.3(a) shall in no way limit any party’s obligations under Section 6.3(c))Closing.
(b) If the parties Sellers are not successful in obtaining any Consent under a Consent Material Contract or material Permit at or prior to the Closing, then the parties agree that on and after the Closing Sellers (A) will, at the request of Purchaser, use commercially reasonable efforts to obtain such Consent (as contemplated by Section 8.4(c)) and, either directly or by causing one of Sellers’ Subsidiaries to, in the name of Purchaser or such Purchased Companies (or such Purchased Companies’ Subsidiaries) or otherwise, use commercially reasonable efforts (at the cost of Sellers of an amount up to, but that shall not in any event exceed $500,000 in the aggregate with respect to any out-of-pocket costs associated therewith) (i) to assure that the applicable Seller rights of Purchaser or such Purchased Companies (or any Subsidiaries thereof) under such Contracts and Permits shall continue be preserved and (ii) to keep facilitate receipt of the applicable Restricted Asset consideration and other economic benefits to be received by Purchaser or such Purchased Companies (or any Subsidiaries thereof) in effect in accordance with its terms and under every such Material Contract and material Permit, which consideration shall be held for the benefit of, and shall provide the applicable be delivered to, Purchaser with the benefits of the Restricted Asset in question accruing after the Closing Date to the extent that or such Seller may provide such benefits Purchased Companies (A) in a manner not in violation of the terms of such Restricted Asset (subject to Section 2.3(d) belowor any Subsidiaries thereof) and (B) shall not, and shall cause their Subsidiaries not to, agree to any amendment, supplement, waiver or other modification of any such Material Contract or material Permit without incurring the prior written consent of Purchaser. Sellers hereby agree to provide Purchaser with a copy (if written) or written summary (if such communication was made orally) of any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if such Seller provides such benefits to such Purchaser, such Purchaser shall perform at its sole expense the obligations of such Seller to be performed after the Closing under the Restricted Asset in question. Once a Consent for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained, the applicable Seller shall promptly assign, transfer and deliver such Restricted Asset to applicable Purchaser, and such Purchaser shall assume the obligations under such Restricted Asset that relate to the period from and after the date of assignment, transfer and delivery of such Restricted Asset to such Purchaser. The terms of this Section 2.3(b) shall not apply communication with respect to Shared Contractsany such material Consent, it being understood that the treatment of Shared Contracts is addressed in Section 2.3(c).
(c) Prior to the ClosingMaterial Contract or material Permit, each Seller shall use its reasonable efforts, and each Purchaser shall use its reasonable efforts to cooperate with each Seller (and, if necessary and desirable, to work with the third parties to the Shared Contracts) in an effort to (i) divide, modify and/or replicate (in whole which copies or in part) the respective rights and obligations under and in respect of the Shared Contracts and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (A) the applicable Purchaser is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Purchased Contracts (the “Business Portion”) (so that, subsequent to the Closing, the applicable Seller shall have no post-Closing rights or post-Closing obligations with respect to the Business Portion of the Shared Contract) and (B) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to the Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to the Closing, the applicable Purchaser shall have no rights or obligations with respect to the Non-Business Portion of the Shared Contract). If the parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the previous sentence, then (i) the applicable Purchaser summaries shall be entitled given to the benefits of the Purchasers as soon as practicable, but in no event later than ten (10) Business Portion Days after Sellers’ receipt of any such Shared Contract accruing after the Closing Date to the extent that the applicable Seller may provide such benefits (A) in a manner not in violation of the terms of such Shared Contract (and subject to Section 2.3(d) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if the applicable Seller provides such benefits to the applicable Purchaser, such Purchaser shall perform at its sole expense the obligations of the applicable Seller to be performed after the Closing under the Business Portion of such Shared Contractcommunication.
(d) In order to effect the parties’ intent as set forth in Sections 2.3(b) and (c) above, if any Consent with respect to a Restricted Asset is not obtained or any division, modification or replication with respect to a Shared Contract is not procured prior to the Closing, the applicable Seller and the applicable Purchaser shall cooperate (at their own expense) in any lawful arrangement reasonably acceptable to such Seller and such Purchaser under which such Purchaser shall obtain the economic claims, rights and benefits under the Restricted Asset or Shared Contract with respect to which the Consent has not been obtained in accordance with this Agreement. Such reasonable arrangement may include subcontracting, sublicensing or subleasing to such Purchaser any and all rights of the applicable Seller under such Restricted Asset or Business Portion of a Shared Contract. To the extent a Purchaser receives the economic claims, rights and benefits under a Restricted Asset or Shared Contract as set forth above, such Purchaser shall be responsible for the Assumed Obligations, if any, arising under such Restricted Asset or Business Portion of a Shared Contract.
(e) Notwithstanding anything to the contrary contained in this Section 2.3 or elsewhere in this Agreement, in the case of a Transferred Real Property Lease that is a Restricted Asset, (i) if the applicable Seller is permitted to sublease the applicable premises to the applicable Purchaser without the consent of the landlord under the terms of the lease, such Seller shall sublease the premises to such Purchaser for the rent under the lease without markup or profit of any kind until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) one day before the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise; or (ii) if the applicable Seller is not permitted to sublease the premises to the applicable Purchaser without the landlord’s consent under the terms of the lease, such Seller shall retain the operations of the Business conducted on the premises and the Employees located at the premises (provided that for all other purposes of this Agreement such Employees and the Assets located at such premises shall be treated as having been transferred to the Purchasers as provided in this Agreement) and shall conduct such operations on the premises for the benefit and at the expense and direction of such Purchaser until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise, and during such time such Seller shall turn over to the Purchaser all income received from such operations and such Purchaser shall pay all expenses of such operations. During the continuance of any sublease under clause (i) above or any operation under clause (ii) above, the applicable Seller shall take any action to extend, terminate, amend or otherwise deal with the lease reasonably requested by the applicable Purchaser at such Purchaser’s expense and shall consult with such Purchaser prior to taking any such action not so requested by such Purchaser.
Appears in 2 contracts
Samples: Purchase Agreement (Tyco International LTD /Ber/), Purchase Agreement (Aecom Technology Corp)
Certain Provisions Regarding Assignments. (a) Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign or transfer any Contract or other Asset or any claim, right, benefit or obligation thereunder or resulting therefrom if (i) an assignment or transfer thereof, without the Consent of a third party thereto, would constitute a breach or violation thereof or would in impose any way adversely affect the rights (upon transfer) of the applicable Purchaser under such Contract obligation or other Asset or result in the loss or cancellation thereof or require a payment thereunder by reason of the assignment or transfer thereof liability on any Seller and (ii) such Consent is not obtained at or prior to the Closing (any Closing; provided, that Sellers shall use their reasonable best efforts to obtain such Contract or other Asset is to be referred to herein as a “Restricted Asset”) (it being understood that this Section 2.3(a) shall in no way limit any party’s obligations under Section 6.3(c))Consents after the Closing.
(b) If the parties are not successful in obtaining a Consent at or prior to the Closing, then each Seller, as necessary, shall use reasonable best efforts to (iA) provide to the applicable Seller shall continue to keep the applicable Restricted Asset in effect in accordance with its terms and shall provide the applicable Purchaser with the benefits of the Restricted Asset Contract in question accruing after the Closing Date Date; (B) cooperate in any reasonable and lawful arrangement designed to the extent that such Seller may provide such benefits to the Purchaser and (AC) in a manner not in violation enforce, at the request and expense of the terms Purchaser and for the account of the Purchaser, any rights of a Seller arising from any such Contract; and each Seller, as necessary, will promptly pay to the Purchaser when received all monies received by such Seller under such Contract. So long as the Purchaser is provided the benefit of any such Contract pursuant to its terms, the Purchaser will perform or discharge, on behalf of such Restricted Asset (subject Seller, Seller’s obligations and liabilities under each such Contract in accordance with the provisions thereof except for any obligations and liabilities under any such Contract that constitute a Retained Obligation. This Section 2.4(b) will not be construed to Section 2.3(d) below) and (B) without incurring require any material expense Seller or otherwise taking the Purchaser to assume any material actions additional liability hereunder or measures (such as hiring additional employees) and (ii) if such Seller provides such benefits to perform under or assume any obligations with respect to such Purchaser, Contracts in excess of those currently required by such Purchaser shall perform at its sole expense the obligations of such Seller to be performed after the Closing under the Restricted Asset in questionContracts. Once a necessary Consent for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained, the applicable Seller shall promptly assign, transfer Contract will be deemed to have been automatically transferred to the Purchaser on the terms set forth in this Agreement with respect to the other Contracts transferred and deliver such Restricted Asset to applicable Purchaserassumed at the Closing, and such Purchaser shall assume consistent with the foregoing, the obligations under such Restricted Asset that relate pursuant to the period from applicable Contract will be deemed to be Assumed Obligations, and after the date of assignment, transfer and delivery of such Restricted Asset rights pursuant to such Purchaserthe applicable Contract will be deemed to be Assets. The terms of this Section 2.3(b2.4(b) shall not apply with respect to Shared Contracts, it being understood that the treatment of Shared Contracts is addressed in Section 2.3(c2.4(c).
(c) Prior to the Closing, each Seller shall use its reasonable efforts, and each the Purchaser shall use its their reasonable best efforts to cooperate with each Seller work together (and, if necessary and desirable, to work with the third parties to the Shared Contracts) in an effort to (i) divide, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of the Shared Contracts and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (Ay) the applicable Purchaser is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Purchased Contracts (the “Business Portion”) (so that, subsequent to the Closing, the applicable Seller shall have no post-Closing rights or post-Closing obligations with respect to the Business Portion of the Shared Contract) and (Bz) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to the Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to the Closing, the applicable Purchaser shall have no rights or obligations with respect to the Non-Business Portion of the Shared Contract). If the parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the previous sentence, then each Seller, as necessary, shall use reasonable best efforts to (iA) the applicable Purchaser shall be entitled provide to the Purchaser the benefits of the Business Portion of each such Shared Contract accruing after the Closing Date; (B) cooperate in any reasonable and lawful arrangement designed to provide such benefits to the Purchaser and (C) enforce, at the request and expense of the Purchaser and for the account of the Purchaser, any rights of a Seller arising from the Business Portion of any such Shared Contract; and each Seller, as necessary, will promptly pay to the Purchaser when received all monies received by such Seller under the Business Portion of such Shared Contract. So long as the Purchaser is provided the benefit of the Business Portion of any such Shared Contract accruing after Contract, pursuant to its terms the Closing Date to Purchaser will perform or discharge, on behalf of such Seller, Seller’s obligations and liabilities under the extent that the applicable Seller may provide such benefits (A) in a manner not in violation Business Portion of the terms of each such Shared Contract (in accordance with the provisions thereof except for any obligations and subject liabilities under the Non-Business Portion of any such Shared Contract. This Section 2.4(c) will not be construed to Section 2.3(d) below) and (B) without incurring require any material expense Seller or otherwise taking the Purchaser to assume any material actions additional liability hereunder or measures (to perform under or assume any obligations with respect to such as hiring additional employees) and (ii) if the applicable Seller provides such benefits to the applicable Purchaser, such Purchaser shall perform at its sole expense the obligations Shared Contracts in excess of the applicable Seller to be performed after the Closing under those currently required by the Business Portion of such Shared Contract.
(d) In order Contracts. Once a necessary Consent is obtained, the Business Portion of the applicable Shared Contract will be deemed to effect have been automatically transferred to the parties’ intent as Purchaser on the terms set forth in Sections 2.3(b) and (c) above, if any Consent this Agreement with respect to a Restricted Asset is not obtained or any division, modification or replication with respect to a the Business Portion of the applicable Shared Contract is not procured prior to Contracts transferred and assumed at the Closing, and consistent with the applicable Seller and foregoing, the applicable Purchaser shall cooperate (at their own expense) in any lawful arrangement reasonably acceptable obligations pursuant to such Seller and such Purchaser under which such Purchaser shall obtain the economic claims, rights and benefits under the Restricted Asset or Shared Contract with respect to which the Consent has not been obtained in accordance with this Agreement. Such reasonable arrangement may include subcontracting, sublicensing or subleasing to such Purchaser any and all rights of the applicable Seller under such Restricted Asset or Business Portion of a Shared Contract. To the extent a Purchaser receives the economic claims, rights and benefits under a Restricted Asset or applicable Shared Contract as set forth above, such Purchaser shall will be responsible for the deemed to be Assumed Obligations, if any, arising under such Restricted Asset or and the rights pursuant to the Business Portion of a applicable Shared ContractContract will be deemed to be Assets.
(e) Notwithstanding anything to the contrary contained in this Section 2.3 or elsewhere in this Agreement, in the case of a Transferred Real Property Lease that is a Restricted Asset, (i) if the applicable Seller is permitted to sublease the applicable premises to the applicable Purchaser without the consent of the landlord under the terms of the lease, such Seller shall sublease the premises to such Purchaser for the rent under the lease without markup or profit of any kind until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) one day before the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise; or (ii) if the applicable Seller is not permitted to sublease the premises to the applicable Purchaser without the landlord’s consent under the terms of the lease, such Seller shall retain the operations of the Business conducted on the premises and the Employees located at the premises (provided that for all other purposes of this Agreement such Employees and the Assets located at such premises shall be treated as having been transferred to the Purchasers as provided in this Agreement) and shall conduct such operations on the premises for the benefit and at the expense and direction of such Purchaser until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise, and during such time such Seller shall turn over to the Purchaser all income received from such operations and such Purchaser shall pay all expenses of such operations. During the continuance of any sublease under clause (i) above or any operation under clause (ii) above, the applicable Seller shall take any action to extend, terminate, amend or otherwise deal with the lease reasonably requested by the applicable Purchaser at such Purchaser’s expense and shall consult with such Purchaser prior to taking any such action not so requested by such Purchaser.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Andrew Corp), Purchase and Sale Agreement (Commscope Inc)
Certain Provisions Regarding Assignments. (a) Anything Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, this Agreement shall not constitute an agreement to assign or transfer any Assumed Contract or other Acquired Asset or any claim, right, benefit or obligation thereunder or resulting therefrom if (i) an assignment or transfer thereof, without the a Consent or Approval of a third party thereto, would constitute a breach or violation thereof or would in any way adversely affect the rights (upon transfer) of the applicable Purchaser under such Contract or other Acquired Asset or result in the loss or cancellation thereof or require a payment thereunder by reason of the assignment or transfer thereof and (ii) thereof. Seller will use reasonable best efforts to obtain any such Consent or Approval at or prior to the Closing, and if such Consent or Approval is not obtained at or prior to the Closing (any such Contract or other Asset is to be referred to herein as a “Restricted Asset”Closing, the provisions of Section 1.5(b) (it being understood that this Section 2.3(a) shall in no way limit any party’s obligations under Section 6.3(c))will apply.
(b) If Without limitation of the parties are rights or obligations of Seller or Purchaser under Article XI or otherwise, if any Assumed Contract, Permit or other Acquired Asset to be assigned, transferred, conveyed or reissued to Purchaser pursuant to this Article I is not successful in obtaining capable of being validly and fully assigned, transferred, conveyed or reissued to Purchaser without a Consent or Approval, and such Consents and Approvals have not been obtained prior to the Closing or do not remain in full force and effect at or prior to after the Closing, then until such time as such Consent or Approval is obtained, (i) the applicable Seller shall continue to keep the applicable Restricted Asset in effect in accordance with its terms shall, and shall cause its Affiliates to, use their reasonable best efforts to obtain such Consents or Approvals and (ii) Seller and Purchaser shall cooperate in any reasonable and lawful arrangement designed to provide the applicable to Purchaser with the benefits of any Assumed Contract, Permit or other Acquired Asset as to which such Consent or Approval has not been obtained or does not remain in full force and effect. To the Restricted Asset extent that Purchaser is provided the benefits pursuant to this Section 1.5 of any such Assumed Contract, Permit or other Acquired Asset, Purchaser shall perform the obligations of Seller and its Affiliates thereunder or in question accruing after connection therewith with respect to periods following the Closing Date Closing, but only to the extent that such Seller may provide obligation would have been an Assumed Liability but for the fact that such benefits (A) in a manner not in violation of the terms of such Restricted Asset (subject to Section 2.3(d) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if such Seller provides such benefits to such Purchaser, such Purchaser shall perform at its sole expense the obligations of such Seller to be performed after the Closing under the Restricted Asset in question. Once a Consent for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained, the applicable Seller shall promptly assign, transfer and deliver such Restricted Asset to applicable Purchaser, and such Purchaser shall assume the obligations under such Restricted Asset that relate to the period from and after the date of assignment, transfer and delivery of such Restricted Asset to such Purchaser. The terms of this Section 2.3(b) shall not apply with respect to Shared Contracts, it being understood that the treatment of Shared Contracts is addressed in Section 2.3(c).
(c) Prior to the Closing, each Seller shall use its reasonable efforts, and each Purchaser shall use its reasonable efforts to cooperate with each Seller (and, if necessary and desirable, to work with the third parties to the Shared Contracts) in an effort to (i) divide, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of the Shared Contracts and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (A) the applicable Purchaser is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Purchased Contracts (the “Business Portion”) (so that, subsequent to the Closing, the applicable Seller shall have no post-Closing rights or post-Closing obligations with respect to the Business Portion of the Shared Contract) and (B) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to the Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to the Closing, the applicable Purchaser shall have no rights or obligations with respect to the Non-Business Portion of the Shared Contract). If the parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the previous sentence, then (i) the applicable Purchaser shall be entitled to the benefits of the Business Portion of any such Shared Contract accruing after the Closing Date to the extent that the applicable Seller may provide such benefits (A) in a manner not in violation of the terms of such Shared Contract (and subject to Section 2.3(d) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if the applicable Seller provides such benefits to the applicable Purchaser, such Purchaser shall perform at its sole expense the obligations of the applicable Seller to be performed after the Closing under the Business Portion of such Shared Contract.
(d) In order to effect the parties’ intent as set forth in Sections 2.3(b) and (c) above, if any Consent with respect to a Restricted Asset is not obtained or any division, modification or replication with respect to a Shared Contract is not procured prior to the Closing, the applicable Seller and the applicable Purchaser shall cooperate (at their own expense) in any lawful arrangement reasonably acceptable to such Seller and such Purchaser under which such Purchaser shall obtain the economic claims, rights and benefits under the Restricted Asset or Shared Contract with respect to which the Consent Approval has not been obtained in accordance with this Agreement. Such reasonable arrangement may include subcontracting, sublicensing or subleasing to such Purchaser any and all rights of the applicable Seller under such Restricted Asset or Business Portion of a Shared Contract. To the extent a Purchaser receives the economic claims, rights and benefits under a Restricted Asset or Shared Contract as set forth above, such Purchaser shall be responsible for the Assumed Obligations, if any, arising under such Restricted Asset or Business Portion of a Shared Contractso obtained.
(e) Notwithstanding anything to the contrary contained in this Section 2.3 or elsewhere in this Agreement, in the case of a Transferred Real Property Lease that is a Restricted Asset, (i) if the applicable Seller is permitted to sublease the applicable premises to the applicable Purchaser without the consent of the landlord under the terms of the lease, such Seller shall sublease the premises to such Purchaser for the rent under the lease without markup or profit of any kind until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) one day before the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise; or (ii) if the applicable Seller is not permitted to sublease the premises to the applicable Purchaser without the landlord’s consent under the terms of the lease, such Seller shall retain the operations of the Business conducted on the premises and the Employees located at the premises (provided that for all other purposes of this Agreement such Employees and the Assets located at such premises shall be treated as having been transferred to the Purchasers as provided in this Agreement) and shall conduct such operations on the premises for the benefit and at the expense and direction of such Purchaser until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise, and during such time such Seller shall turn over to the Purchaser all income received from such operations and such Purchaser shall pay all expenses of such operations. During the continuance of any sublease under clause (i) above or any operation under clause (ii) above, the applicable Seller shall take any action to extend, terminate, amend or otherwise deal with the lease reasonably requested by the applicable Purchaser at such Purchaser’s expense and shall consult with such Purchaser prior to taking any such action not so requested by such Purchaser.
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Certain Provisions Regarding Assignments. (a) Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign or transfer any Contract or other Asset or any claim, right, benefit or obligation thereunder or resulting therefrom if (i) an assignment or transfer thereof, without the Consent of a third party thereto, would constitute a breach or violation thereof or would in any way adversely affect the rights (upon transfer) of the applicable Purchaser under such Contract or other Asset or result in the loss or cancellation thereof or require a payment thereunder by reason of the assignment or transfer thereof and (ii) such Consent is not obtained at or prior to the Closing (any such Contract or other Asset is to be referred to herein as a “"Restricted Asset”") (it being understood that this Section 2.3(a) shall in no way limit any party’s parties' obligations under Section 6.3(c)).
(b) If the parties are not successful in obtaining a Consent at or prior to the Closing, then (i) the applicable Seller shall continue to keep the applicable Restricted Asset in effect in accordance with its terms and shall provide the applicable Purchaser with the benefits of the Restricted Asset in question accruing after the Closing Date to the extent that such the Seller may provide such benefits (A) in a manner not in violation of the terms of such Restricted Asset (and subject to Section 2.3(d) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if such the Seller provides such benefits to such the Purchaser, such the Purchaser shall perform at its sole expense the obligations of such the Seller to be performed after the Closing under the Restricted Asset in question. Once a Consent for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained, the applicable Seller shall promptly assign, transfer and deliver such Restricted Asset to applicable the Purchaser, and such the Purchaser shall assume the obligations under such Restricted Asset that relate to the period from and after the date of assignment, transfer and delivery of such Restricted Asset to such the Purchaser. The terms of this Section 2.3(b) shall not apply with respect to Shared Contracts, it being understood that the treatment of Shared Contracts is addressed in Section 2.3(c).
(c) Prior to the ClosingClosing and subject to the provisions set forth in Schedule 7.9 with respect to certain Shared Contracts, each the Seller shall use its reasonable efforts, and each the Purchaser shall use its their reasonable best efforts to cooperate with each Seller work together (and, if necessary and desirable, to work with the third parties to the Shared Contracts) in an effort to (i) divide, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of the Shared Contracts and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (A) the applicable Purchaser is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Purchased Contracts (the “Business "Access Portion”") (so that, subsequent to the Closing, the applicable Seller shall have no post-Closing rights or post-Closing obligations with respect to the Business Access Portion of the Shared Contract) and (B) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to the Shared Contract other than the Business Access Portion (the “"Non-Business Access Portion”") (so that, subsequent to the Closing, the applicable Purchaser shall have no rights or obligations with respect to the Non-Business Access Portion of the Shared Contract). If the parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the previous sentence, then (i) the applicable Purchaser shall be entitled to the benefits of the Business Access Portion of any such Shared Contract accruing after the Closing Date to the extent that the applicable Seller may provide such benefits (A) in a manner not in violation of the terms of such Shared Contract (and subject to Section 2.3(d) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if the applicable Seller provides such benefits to the applicable Purchaser, such the Purchaser shall perform at its sole expense the obligations of the applicable Seller to be performed after the Closing under the Business Access Portion of such Shared Contract.
(d) In order to effect the parties’ intent as set forth in Sections 2.3(b) and (c) above, if If any Consent with respect to a Restricted Asset is not obtained or any division, modification or replication with respect to a Shared Contract is not procured prior to the Closing, the applicable Seller and the applicable Purchaser shall cooperate (at their own expense) in any lawful and reasonable arrangement reasonably acceptable to such Seller and such proposed by the Purchaser under which such the Purchaser shall obtain the economic claims, rights and benefits under the Restricted Asset or Shared Contract with respect to which the Consent has not been obtained in accordance with this Agreement. Such reasonable arrangement may include subcontracting, sublicensing or subleasing to such the Purchaser of any and all rights of the applicable Seller Seller, the Parent or Marconi IP under such Restricted Asset or Business Access Portion of a Shared Contract. To the extent a the Purchaser receives the economic claims, rights and benefits under a Restricted Asset or Shared Contract as set forth above, such the Purchaser shall be responsible for the Assumed Obligations, if any, arising under such Restricted Asset or Business Access Portion of a Shared Contract.
(e) Notwithstanding anything to the contrary contained in this Section 2.3 or elsewhere in this Agreement, in the case of a Transferred Real Property Lease that is a Restricted Asset, (i) if the applicable Seller is permitted to sublease the applicable premises to the applicable Purchaser without the consent of the landlord under the terms of the lease, such Seller shall sublease the premises to such Purchaser for the rent under the lease without markup or profit of any kind until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) one day before the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise; or (ii) if the applicable Seller is not permitted to sublease the premises to the applicable Purchaser without the landlord’s consent under the terms of the lease, such Seller shall retain the operations of the Business conducted on the premises and the Employees located at the premises (provided that for all other purposes of this Agreement such Employees and the Assets located at such premises shall be treated as having been transferred to the Purchasers as provided in this Agreement) and shall conduct such operations on the premises for the benefit and at the expense and direction of such Purchaser until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise, and during such time such Seller shall turn over to the Purchaser all income received from such operations and such Purchaser shall pay all expenses of such operations. During the continuance of any sublease under clause (i) above or any operation under clause (ii) above, the applicable Seller shall take any action to extend, terminate, amend or otherwise deal with the lease reasonably requested by the applicable Purchaser at such Purchaser’s expense and shall consult with such Purchaser prior to taking any such action not so requested by such Purchaser.
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Samples: Asset Purchase and Sale Agreement (Marconi Corp PLC)
Certain Provisions Regarding Assignments. (a) Anything in this Agreement to the contrary notwithstanding, neither this Agreement nor any of the actions taken hereunder shall not constitute an assignment or an agreement to assign or transfer any Purchased Contract or other Asset or any claim, right, benefit or obligation thereunder or resulting therefrom if (i) an assignment or transfer thereof, without the Consent of a third party thereto, would constitute a breach or violation thereof, result in a material loss or diminution thereof or would in impose any way adversely affect the rights (upon transfer) of the applicable Purchaser under such Contract or other Asset or result in the loss or cancellation thereof or require a payment thereunder by reason of the assignment or transfer thereof Liability on any Seller and (ii) such Consent is not obtained at or prior to the Closing (any such Contract or other Asset is to be referred to herein as a “Restricted Asset”Closing, in which case the provisions of Section 2.3(b) (it being understood that this Section 2.3(a) shall in no way limit any party’s obligations under Section 6.3(c))will apply.
(b) If the parties Sellers and the Purchaser are not successful in obtaining a required third party Consent with respect to any Purchased Contract as contemplated by Section 2.3(a) at or prior to the Closing, then until such time as such Consent is obtained (i) the applicable Seller Purchaser shall continue be entitled to keep the applicable Restricted Asset in effect in accordance with its terms and shall provide the applicable Purchaser with the benefits of the Restricted Asset in question any such Contract accruing after the Closing Date to the extent (and only to the extent) that such the applicable Seller may provide such benefits (Ay) in a manner not in violation of without violating the terms of such Restricted Asset (subject to Section 2.3(d) below) Contract and (Bz) without incurring any material expense (unless the Purchaser has committed to promptly reimburse the applicable Seller therefor) or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if such Seller provides such benefits to such Purchaser, such the Purchaser shall perform at its sole expense the obligations of such the applicable Seller to be performed after the Closing under such Contract to the Restricted Asset in question. Once a Consent for extent (and only to the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained, extent) the applicable Seller shall promptly assign, transfer and deliver such Restricted Asset to applicable Purchaser, and such Purchaser shall assume the obligations is providing benefits under such Restricted Asset that relate Contract to the period from and after the date Purchaser in accordance with clause (i) of assignment, transfer and delivery of such Restricted Asset to such Purchaserthis Section 2.3(b). The terms of this Section 2.3(b) shall not apply with respect to Shared Contracts, it being understood that the treatment of Shared Contracts is addressed in Section 2.3(c).
(c) Prior to the ClosingClosing and consistent with applicable Law, each Seller shall use its reasonable efforts, and each the Purchaser shall use its their commercially reasonable efforts to cooperate with each Seller work together (and, if necessary and desirable, to work with the third parties party to the Shared Contracts) in an effort to (i) divide, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of the Shared Contracts and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (A) the applicable Purchaser is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Purchased Contracts (the “Business Portion”) (so that, subsequent to after the Closing, the applicable Seller shall have no post-Closing rights or post-Closing obligations with respect to the Business Portion of the Shared Contract) and (B) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to the Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to after the Closing, the applicable Purchaser shall have no rights or obligations with respect to the Non-Business Portion of the Shared Contract). If the parties applicable Seller(s) and the Purchaser are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the previous sentence, then (i1) the applicable Purchaser shall be entitled to the benefits of the Business Portion of any such Shared Contract accruing after the Closing Date to the extent (and only to the extent) that the applicable Seller may provide such benefits (Ay) in a manner not in violation of without violating the terms of such Shared Contract (and subject to Section 2.3(d) below) and (Bz) without incurring any material expense (unless the Purchaser has committed to promptly reimburse the applicable Seller therefor) or otherwise taking any material actions or measures (such as hiring additional employees) and (ii2) if the applicable Seller provides such benefits to the applicable Purchaser, such Purchaser shall perform at its sole expense the obligations of the applicable Seller to be performed after the Closing under the Business Portion of such Shared Contract.
(d) In order to effect the parties’ intent as set forth in Sections 2.3(b) and (c) above, if any Consent with respect to a Restricted Asset is not obtained or any division, modification or replication with respect to a Shared Contract is not procured prior to the Closing, the applicable Seller extent (and the applicable Purchaser shall cooperate (at their own expense) in any lawful arrangement reasonably acceptable to such Seller and such Purchaser under which such Purchaser shall obtain the economic claims, rights and benefits under the Restricted Asset or Shared Contract with respect to which the Consent has not been obtained in accordance with this Agreement. Such reasonable arrangement may include subcontracting, sublicensing or subleasing to such Purchaser any and all rights of the applicable Seller under such Restricted Asset or Business Portion of a Shared Contract. To the extent a Purchaser receives the economic claims, rights and benefits under a Restricted Asset or Shared Contract as set forth above, such Purchaser shall be responsible for the Assumed Obligations, if any, arising under such Restricted Asset or Business Portion of a Shared Contract.
(e) Notwithstanding anything only to the contrary contained in this Section 2.3 or elsewhere in this Agreement, in the case of a Transferred Real Property Lease that is a Restricted Asset, (iextent) if the applicable Seller is permitted to sublease the applicable premises to the applicable Purchaser without the consent of the landlord providing benefits under the terms of the lease, such Seller shall sublease the premises to such Purchaser for the rent under the lease without markup or profit of any kind until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) one day before the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise; or (ii) if the applicable Seller is not permitted to sublease the premises to the applicable Purchaser without the landlord’s consent under the terms of the lease, such Seller shall retain the operations of the Business conducted on the premises and the Employees located at the premises (provided that for all other purposes of this Agreement such Employees and the Assets located at such premises shall be treated as having been transferred to the Purchasers as provided in this Agreement) and shall conduct such operations on the premises for the benefit and at the expense and direction of such Purchaser until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise, and during such time such Seller shall turn over Shared Contract to the Purchaser all income received from such operations and such Purchaser shall pay all expenses of such operations. During the continuance of any sublease under in accordance with clause (i1) above or any operation under clause (ii) above, the applicable Seller shall take any action to extend, terminate, amend or otherwise deal with the lease reasonably requested by the applicable Purchaser at such Purchaser’s expense and shall consult with such Purchaser prior to taking any such action not so requested by such Purchaserof this Section 2.3(c).
Appears in 1 contract
Certain Provisions Regarding Assignments. (a) Anything in this Agreement Sellers shall use their commercially reasonable efforts to the contrary notwithstandingobtain, this Agreement shall not constitute an agreement to assign or transfer any Contract or other Asset or any claim, right, benefit or obligation thereunder or resulting therefrom if (i) an assignment or transfer thereof, without the Consent of a third party thereto, would constitute a breach or violation thereof or would in any way adversely affect the rights (upon transfer) of the applicable Purchaser under such Contract or other Asset or result in the loss or cancellation thereof or require a payment thereunder by reason of the assignment or transfer thereof and (ii) such Consent is not obtained at or prior to the Closing (any such Contract or other Asset is to be referred to herein as a “Restricted Asset”) (it being understood that this Section 2.3(a) Purchasers shall in no way limit any party’s obligations under Section 6.3(cgood faith cooperate with, and provide reasonable assistance to, Sellers in connection with obtaining, as promptly as is reasonably practicable after the date hereof, the Servicing Agreement Consents (each such Servicing Agreement for which a Servicing Agreement Consent has been obtained, an “Assigned Servicing Agreement”))., including taking the steps set forth on Exhibit E.
(b) If With respect to any Servicing Agreement for which a Servicing Agreement Consent has not been obtained as of the parties are not successful in obtaining a Consent at or prior to the ClosingClosing Date (each such Servicing Agreement, then (i) an “Unassigned Servicing Agreement”), Servicing Assets Purchaser and the applicable Seller shall continue to keep the applicable Restricted Asset in effect in accordance with its terms and shall provide the applicable Purchaser with the benefits of the Restricted Asset in question accruing after shall, on the Closing Date to the extent that such Seller may provide such benefits (A) in Date, enter into a manner not in violation of Subservicing agreement on the terms of such Restricted Asset set forth in Exhibit G (subject to Section 2.3(d) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if such Seller provides such benefits to such Purchasereach, such Purchaser shall perform at its sole expense the obligations of such Seller to be performed after the Closing under the Restricted Asset in question. Once a Consent for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained, the applicable Seller shall promptly assign, transfer and deliver such Restricted Asset to applicable Purchaser, and such Purchaser shall assume the obligations under such Restricted Asset that relate to the period from and after the date of assignment, transfer and delivery of such Restricted Asset to such Purchaser. The terms of this Section 2.3(b) shall not apply with respect to Shared Contracts, it being understood that the treatment of Shared Contracts is addressed in Section 2.3(c“Subservicing Agreement”).
(c) Prior With respect to the Closing, each Seller shall use its reasonable efforts, any Servicing Agreement for which Servicing Assets Purchaser and each Purchaser shall use its reasonable efforts to cooperate with each Seller (and, if necessary and desirable, to work with the third parties to the Shared Contracts) in an effort to (i) divide, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of the Shared Contracts and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (A) the applicable Purchaser is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Purchased Contracts (the “Business Portion”) (so that, subsequent to the Closing, the applicable Seller shall have no post-Closing rights or post-Closing obligations with respect entered into a Subservicing Agreement pursuant to the Business Portion of the Shared Contract) and (B) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to the Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to the ClosingSection 2.3(b), the applicable Purchaser provisions of Section 2.3(a) shall have no rights or obligations continue to apply and the Parties shall continue to pursue the remaining Servicing Agreement Consents in accordance with respect to the Non-Business Portion of the Shared Contract). If the parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the previous sentence, then (i) the applicable Purchaser shall be entitled to the benefits of the Business Portion of any such Shared Contract accruing after the Closing Date to the extent that the applicable Seller may provide such benefits (A) in a manner not in violation of the terms of such Shared Contract (and subject to Section 2.3(d) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if the applicable Seller provides such benefits to the applicable Purchaser, such Purchaser shall perform at its sole expense the obligations of the applicable Seller to be performed after the Closing under the Business Portion of such Shared Contract.
(d) In order to effect the parties’ intent as set forth in Sections 2.3(b) and (c) above, if any Consent with respect to a Restricted Asset is not obtained or any division, modification or replication with respect to a Shared Contract is not procured prior to the Closing, the applicable Seller and the applicable Purchaser shall cooperate (at their own expense) in any lawful arrangement reasonably acceptable to such Seller and such Purchaser under which such Purchaser shall obtain the economic claims, rights and benefits under the Restricted Asset or Shared Contract with respect to which the Consent has not been obtained in accordance with this Agreement. Such reasonable arrangement may include subcontracting, sublicensing or subleasing to such Purchaser any and all rights of the applicable Seller under such Restricted Asset or Business Portion of a Shared ContractSection. To the extent a Purchaser receives the economic claims, rights and benefits under a Restricted Asset or Shared Contract as set forth above, such Purchaser shall be responsible for the Assumed Obligations, if any, arising under such Restricted Asset or Business Portion of a Shared Contract.
(e) Notwithstanding anything that any Servicing Agreement Consent is obtained pursuant to the contrary contained in this Section 2.3 or elsewhere in this 2.3(c) with respect to any Servicing Agreement, in the case of a Transferred Real Property Lease that is a Restricted Asset, (i) if the applicable Seller is permitted to sublease the applicable premises to the applicable Purchaser without the consent of the landlord under the terms of the lease, such Seller shall sublease the premises Subservicing Agreement related to such Purchaser for the rent under the lease Servicing Agreement shall automatically terminate except as provided therein without markup or profit any further action of any kind until party upon the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned Servicing Assets Settlement Date relating to such Purchaser and (B) one day before the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise; or (ii) if the applicable Seller is not permitted to sublease the premises to the applicable Purchaser without the landlord’s consent under the terms of the lease, such Seller shall retain the operations of the Business conducted on the premises and the Employees located at the premises (provided that for all other purposes of this Agreement such Employees and the Assets located at such premises shall be treated as having been transferred to the Purchasers as provided in this Servicing Agreement) and shall conduct such operations on the premises for the benefit and at the expense and direction of such Purchaser until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise, and during such time such Seller shall turn over to the Purchaser all income received from such operations and such Purchaser shall pay all expenses of such operations. During the continuance of any sublease under clause (i) above or any operation under clause (ii) above, the applicable Seller shall take any action to extend, terminate, amend or otherwise deal with the lease reasonably requested by the applicable Purchaser at such Purchaser’s expense and shall consult with such Purchaser prior to taking any such action not so requested by such Purchaser.
Appears in 1 contract
Certain Provisions Regarding Assignments. (a) Anything in Notwithstanding anything contained herein to the contrary, neither this Agreement to nor the contrary notwithstanding, this Assignment and Assumption Agreement shall not constitute an agreement to assign or transfer any Assumed Contract or other Asset or any claim, right, benefit or obligation thereunder or resulting therefrom if (i) an assignment or transfer thereof, without the Consent of a third party thereto, would constitute a breach or violation thereof or would in any way adversely affect the rights (upon transfer) of the applicable Purchaser under Buyer or such Contract or other Asset or result in the loss or cancellation thereof or require a payment thereunder by reason of the assignment or transfer thereof and (ii) such Consent is not obtained at or prior to the Closing (any such Contract or other Asset is to be referred to herein as a “Restricted Asset”) (it being understood that this Section 2.3(a) shall in no way limit any party’s obligations under Section 6.3(c)).
(b) If the parties are not successful in obtaining a Consent required for the consummation of the Contemplated Transactions at or prior to the Closing, then (i) if requested by Buyer and to the extent not in violation of applicable Legal Requirement or Order, the Seller or one of its Affiliates (as applicable) shall continue to keep the applicable Restricted Asset in effect in accordance with its terms and shall provide the applicable Purchaser Buyer with the benefits of the Restricted Asset in question accruing after the Closing Date to the extent that such Seller or its Affiliate may provide such benefits (A) in a manner not in violation of the terms of such Restricted Asset (subject to Section 2.3(d2.12(c) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) ); and (ii) if at the request and sole expense of Buyer and to the extent not in violation of applicable Legal Requirement or Order, the Seller or one of its Affiliates (as applicable) shall exercise any rights of Seller arising under any such Seller provides Restricted Asset (including the right to elect to terminate any Contract constituting a Restricted Asset in accordance with its terms) and such benefits to such Purchaser, such Purchaser Buyer shall perform at its sole expense the obligations of such Seller to be performed after the Closing or such Affiliate under the Restricted Asset in question. Once a Consent for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained, the applicable Seller or Affiliate (as applicable) shall promptly assign, transfer and deliver such Restricted Asset to the applicable PurchaserBuyer, and such Purchaser Buyer shall assume the obligations under such Restricted Asset that relate pursuant to the period from and after the date of assignment, transfer and delivery of such Restricted Asset to such Purchaser. The terms of this Section 2.3(b) shall not apply with respect to Shared Contracts, it being understood that the treatment of Shared Contracts is addressed in Section 2.3(c)Agreement.
(c) Prior to the Closing, each Seller shall use its reasonable efforts, At Buyer’s option and each Purchaser shall use its reasonable efforts to cooperate with each Seller (and, if necessary and desirable, to work with the third parties to the Shared Contracts) in an effort to (i) divide, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of the Shared Contracts and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (A) the applicable Purchaser is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Purchased Contracts (the “Business Portion”) (so that, subsequent to the Closing, the applicable Seller shall have no post-Closing rights or post-Closing obligations with respect to the Business Portion of the Shared Contract) and (B) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to the Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to the Closing, the applicable Purchaser shall have no rights or obligations with respect to the Non-Business Portion of the Shared Contract). If the parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the previous sentence, then (i) the applicable Purchaser shall be entitled to the benefits of the Business Portion of any such Shared Contract accruing after the Closing Date to the extent that the applicable Seller may provide such benefits (A) in a manner not in violation of the terms of such Shared Contract (and subject to Section 2.3(d) below) and (B) without incurring any material expense applicable Legal Requirement or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if the applicable Seller provides such benefits to the applicable Purchaser, such Purchaser shall perform at its sole expense the obligations of the applicable Seller to be performed after the Closing under the Business Portion of such Shared Contract.
(d) In order to effect the parties’ intent as set forth in Sections 2.3(b) and (c) aboveOrder, if any Consent with respect to a Restricted Asset is not obtained or any division, modification or replication with respect to a Shared Contract is not procured prior to the Closing, the applicable Seller or one of its Affiliates (as applicable) and the applicable Purchaser shall Buyer shall, cooperate (at their own expense) in any lawful arrangement reasonably acceptable to such Seller and such Purchaser Buyer under which such Purchaser Buyer shall obtain obtain, the economic claims, rights and benefits under the Restricted Asset or Shared Contract with respect to which the Consent has not been obtained in accordance with this Agreement. Such reasonable arrangement may include subcontracting, sublicensing or subleasing to such Purchaser Buyer any and all legal rights of the applicable Seller or one of its Affiliates (as applicable) under such Restricted Asset or Business Portion of a Shared ContractAsset. To the extent a Purchaser receives the economic claims, rights and benefits under a Restricted Asset or Shared Contract as set forth above, such Purchaser Buyer shall be responsible only for the Assumed Obligationspost-closing obligations, if any, arising after the Closing under such Restricted Asset or Business Portion of a Shared ContractAsset.
(e) Notwithstanding anything to the contrary contained in this Section 2.3 or elsewhere in this Agreement, in the case of a Transferred Real Property Lease that is a Restricted Asset, (i) if the applicable Seller is permitted to sublease the applicable premises to the applicable Purchaser without the consent of the landlord under the terms of the lease, such Seller shall sublease the premises to such Purchaser for the rent under the lease without markup or profit of any kind until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) one day before the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise; or (ii) if the applicable Seller is not permitted to sublease the premises to the applicable Purchaser without the landlord’s consent under the terms of the lease, such Seller shall retain the operations of the Business conducted on the premises and the Employees located at the premises (provided that for all other purposes of this Agreement such Employees and the Assets located at such premises shall be treated as having been transferred to the Purchasers as provided in this Agreement) and shall conduct such operations on the premises for the benefit and at the expense and direction of such Purchaser until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise, and during such time such Seller shall turn over to the Purchaser all income received from such operations and such Purchaser shall pay all expenses of such operations. During the continuance of any sublease under clause (i) above or any operation under clause (ii) above, the applicable Seller shall take any action to extend, terminate, amend or otherwise deal with the lease reasonably requested by the applicable Purchaser at such Purchaser’s expense and shall consult with such Purchaser prior to taking any such action not so requested by such Purchaser.
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Certain Provisions Regarding Assignments. (a) Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign or transfer any Contract or other Asset or any claim, right, benefit or obligation thereunder or resulting therefrom if (i) an assignment or transfer thereof, without the Consent of a third party thereto, would constitute a breach or violation thereof or would in any way adversely affect the rights (upon transfer) of the applicable Purchaser under such Contract or other Asset or result in the loss or cancellation thereof or require a payment thereunder by reason of the assignment or transfer thereof and (ii) such Consent is not obtained at or prior to the Closing (any such Contract or other Asset is to be referred to herein as a “Restricted Asset”) (it being understood that this Section 2.3(a) shall in no way limit any party’s parties’ obligations under Section 6.3(c)).
(b) If the parties are not successful in obtaining a Consent at or prior to the Closing, then (i) the applicable Seller shall continue to keep the applicable Restricted Asset in effect in accordance with its terms and shall provide the applicable Purchaser with the benefits of the Restricted Asset in question accruing after the Closing Date to the extent that such the Seller may provide such benefits (A) in a manner not in violation of the terms of such Restricted Asset (and subject to Section 2.3(d) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if such the Seller provides such benefits to such the Purchaser, such the Purchaser shall perform at its sole expense the obligations of such the Seller to be performed after the Closing under the Restricted Asset in question. Once a Consent for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained, the applicable Seller shall promptly assign, transfer and deliver such Restricted Asset to applicable the Purchaser, and such the Purchaser shall assume the obligations under such Restricted Asset that relate to the period from and after the date of assignment, transfer and delivery of such Restricted Asset to such the Purchaser. The terms of this Section 2.3(b) shall not apply with respect to Shared Contracts, it being understood that the treatment of Shared Contracts is addressed in Section 2.3(c).
(c) Prior to the ClosingClosing and subject to the provisions set forth in Schedule 7.9 with respect to certain Shared Contracts, each the Seller shall use its reasonable efforts, and each the Purchaser shall use its their reasonable best efforts to cooperate with each Seller work together (and, if necessary and desirable, to work with the third parties to the Shared Contracts) in an effort to (i) divide, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of the Shared Contracts and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (A) the applicable Purchaser is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Purchased Contracts (the “Business Access Portion”) (so that, subsequent to the Closing, the applicable Seller shall have no post-Closing rights or post-Closing obligations with respect to the Business Access Portion of the Shared Contract) and (B) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to the Shared Contract other than the Business Access Portion (the “Non-Business Access Portion”) (so that, subsequent to the Closing, the applicable Purchaser shall have no rights or obligations with respect to the Non-Business Access Portion of the Shared Contract). If the parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the Table of Contents previous sentence, then (i) the applicable Purchaser shall be entitled to the benefits of the Business Access Portion of any such Shared Contract accruing after the Closing Date to the extent that the applicable Seller may provide such benefits (A) in a manner not in violation of the terms of such Shared Contract (and subject to Section 2.3(d) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if the applicable Seller provides such benefits to the applicable Purchaser, such the Purchaser shall perform at its sole expense the obligations of the applicable Seller to be performed after the Closing under the Business Access Portion of such Shared Contract.
(d) In order to effect the parties’ intent as set forth in Sections 2.3(b) and (c) above, if If any Consent with respect to a Restricted Asset is not obtained or any division, modification or replication with respect to a Shared Contract is not procured prior to the Closing, the applicable Seller and the applicable Purchaser shall cooperate (at their own expense) in any lawful and reasonable arrangement reasonably acceptable to such Seller and such proposed by the Purchaser under which such the Purchaser shall obtain the economic claims, rights and benefits under the Restricted Asset or Shared Contract with respect to which the Consent has not been obtained in accordance with this Agreement. Such reasonable arrangement may include subcontracting, sublicensing or subleasing to such the Purchaser of any and all rights of the applicable Seller Seller, the Parent or Marconi IP under such Restricted Asset or Business Access Portion of a Shared Contract. To the extent a the Purchaser receives the economic claims, rights and benefits under a Restricted Asset or Shared Contract as set forth above, such the Purchaser shall be responsible for the Assumed Obligations, if any, arising under such Restricted Asset or Business Access Portion of a Shared Contract.
(e) Notwithstanding anything to the contrary contained in this Section 2.3 or elsewhere in this Agreement, in the case of a Transferred Real Property Lease that is a Restricted Asset, (i) if the applicable Seller is permitted to sublease the applicable premises to the applicable Purchaser without the consent of the landlord under the terms of the lease, such Seller shall sublease the premises to such Purchaser for the rent under the lease without markup or profit of any kind until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) one day before the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise; or (ii) if the applicable Seller is not permitted to sublease the premises to the applicable Purchaser without the landlord’s consent under the terms of the lease, such Seller shall retain the operations of the Business conducted on the premises and the Employees located at the premises (provided that for all other purposes of this Agreement such Employees and the Assets located at such premises shall be treated as having been transferred to the Purchasers as provided in this Agreement) and shall conduct such operations on the premises for the benefit and at the expense and direction of such Purchaser until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise, and during such time such Seller shall turn over to the Purchaser all income received from such operations and such Purchaser shall pay all expenses of such operations. During the continuance of any sublease under clause (i) above or any operation under clause (ii) above, the applicable Seller shall take any action to extend, terminate, amend or otherwise deal with the lease reasonably requested by the applicable Purchaser at such Purchaser’s expense and shall consult with such Purchaser prior to taking any such action not so requested by such Purchaser.
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Certain Provisions Regarding Assignments. (a) Anything Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, this Agreement shall not constitute an agreement to assign or transfer any Contract or other Asset asset or any claim, right, claim or right or any benefit or obligation thereunder arising under or resulting therefrom from such asset if (i) an attempted assignment or transfer thereof, without the Consent consent of a third party theretoparty, would constitute a breach or violation thereof other contravention of the rights of such third party, would be ineffective with respect to any party to an agreement concerning such asset, or would in any way adversely affect the rights (of the Selling Parties or, upon transfer) of , the applicable Purchaser under such asset. If any transfer or assignment by the Selling Parties to, or any assumption by the Purchaser of, any interest in, or Liability under, any asset requires the consent of a third party, then such assignment or assumption shall be made subject to such consent being obtained. To the extent any Assigned Contract or other Asset or result in may not be assigned to the loss or cancellation thereof or require a payment thereunder Purchaser by reason of the assignment or transfer thereof and (ii) such Consent is not obtained at or prior to the Closing (absence of any such Contract or other Asset is consent, the Purchaser shall not be required to be referred to herein as a “Restricted Asset”) (it being understood that this Section 2.3(a) shall in no way limit assume any party’s obligations Assumed Obligations arising under Section 6.3(c))such Assigned Contract.
(b) If the parties are not successful in obtaining a Consent at or prior to the Closing, then (i) the applicable Seller shall continue to keep the applicable Restricted Asset in effect in accordance with its terms and shall provide the applicable Purchaser with the benefits of the Restricted Asset in question accruing after the Closing Date to the extent that such Seller may provide such benefits (A) in a manner not in violation of the terms of such Restricted Asset (subject to Section 2.3(d) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if such Seller provides such benefits to such Purchaser, such Purchaser shall perform at its sole expense the obligations of such Seller to be performed after the Closing under the Restricted Asset in question. Once a Consent for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained, the applicable Seller shall promptly assign, transfer and deliver such Restricted Asset to applicable Purchaser, and such Purchaser shall assume the obligations under such Restricted Asset that relate to the period from and after the date of assignment, transfer and delivery of such Restricted Asset to such Purchaser. The terms of this Section 2.3(b) shall not apply with respect to Shared Contracts, it being understood that the treatment of Shared Contracts is addressed in Section 2.3(c).
(c) Prior to the Closing, each Seller shall use its reasonable efforts, and each Purchaser shall use its reasonable efforts to cooperate with each Seller (and, if necessary and desirable, to work with the third parties to the Shared Contracts) in an effort to (i) divide, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of the Shared Contracts and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (A) the applicable Purchaser is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Purchased Contracts (the “Business Portion”) (so that, subsequent to the Closing, the applicable Seller shall have no post-Closing rights or post-Closing obligations with respect to the Business Portion of the Shared Contract) and (B) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to the Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to the Closing, the applicable Purchaser shall have no rights or obligations with respect to the Non-Business Portion of the Shared Contract). If the parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the previous sentence, then (i) the applicable Purchaser shall be entitled to the benefits of the Business Portion of any such Shared Contract accruing after the Closing Date to the extent that the applicable Seller may provide such benefits (A) in a manner not in violation of the terms of such Shared Contract (and subject to Section 2.3(d) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if the applicable Seller provides such benefits to the applicable Purchaser, such Purchaser shall perform at its sole expense the obligations of the applicable Seller to be performed after the Closing under the Business Portion of such Shared Contract.
(d) In order to effect the parties’ intent as set forth in Sections 2.3(b) and (c) above, if any Consent with respect to a Restricted Asset consent is not obtained or any division, modification or replication with respect to a Shared Contract is not procured prior to the Closing, the applicable Seller Selling Parties and the applicable Purchaser shall cooperate (at their own expense) in any lawful and reasonable arrangement reasonably acceptable to such Seller and such proposed by the Purchaser under which such the Purchaser shall obtain the economic claims, rights and benefits under the Restricted Asset asset, claim or Shared Contract right with respect to which the Consent consent has not been obtained in accordance with this Agreement. Such reasonable arrangement may include (i) the subcontracting, sublicensing or subleasing to such the Purchaser of any and all rights of the applicable Seller under Selling Parties against the other party to such Restricted Asset or Business Portion third-party agreement arising out of a Shared Contractbreach or cancellation thereof by the other party, and (ii) the enforcement by the Selling Parties of such rights. To the extent a extent, and only to the extent, the Purchaser receives is able to receive the economic claims, rights and benefits under a Restricted Asset or Shared Contract an asset as set forth above, such the Purchaser shall be responsible for the Assumed Obligations, if any, arising under such Restricted Asset or Business Portion of a Shared Contractasset.
(ec) Notwithstanding anything Subsections (a) and (b) above shall not be deemed to the contrary contained in this Section 2.3 or elsewhere in this Agreement, in the case of a Transferred Real Property Lease that is a Restricted Asset, limit (i) if the applicable Seller is permitted to sublease the applicable premises rights and remedies available to the applicable Purchaser without hereunder or otherwise in the consent of the landlord under the terms of the lease, such Seller shall sublease the premises to such Purchaser for the rent under the lease without markup or profit of any kind until the earlier to occur of (A) the date on which the landlord’s event a consent is not obtained and the lease assigned prior to such Purchaser and (B) one day before the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise; Closing or (ii) if the applicable Seller is not permitted to sublease the premises to the applicable Purchaser without the landlord’s consent under the terms obligations of the lease, such Seller shall retain the operations of the Business conducted on the premises and the Employees located at the premises (provided that for all other purposes of this Agreement such Employees and the Assets located at such premises shall be treated as having been transferred to the Purchasers as provided in this Agreement) and shall conduct such operations on the premises for the benefit and at the expense and direction of such Purchaser until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise, and during such time such Seller shall turn over to the Purchaser all income received from such operations and such Purchaser shall pay all expenses of such operations. During the continuance of any sublease under clause (i) above or any operation under clause (ii) above, the applicable Seller shall take any action to extend, terminate, amend or otherwise deal with the lease reasonably requested by the applicable Purchaser at such Purchaser’s expense and shall consult with such Purchaser prior to taking any such action not so requested by such PurchaserSelling Parties hereunder.
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Certain Provisions Regarding Assignments. (a) Anything in this Agreement to the contrary notwithstanding, neither this Agreement nor any of the actions taken hereunder shall not constitute an assignment or an agreement to assign or transfer any Purchased Contract or other Asset or any claim, right, benefit or obligation thereunder or resulting therefrom if (i) an assignment or transfer thereof, without the Consent of a third party thereto, would constitute a breach or violation thereof, result in a material loss or diminution thereof or would in impose any way adversely affect the rights (upon transfer) of the applicable Purchaser under such Contract or other Asset or result in the loss or cancellation thereof or require a payment thereunder by reason of the assignment or transfer thereof Liability on any Seller and (ii) such Consent is not obtained at or prior to the Closing (any such Contract or other Asset is to be referred to herein as a “Restricted Asset”Closing, in which case the provisions of Section 2.3(b) (it being understood that this Section 2.3(a) shall in no way limit any party’s obligations under Section 6.3(c))will apply.
(b) If the parties are not successful in obtaining a required third party Consent with respect to any Purchased Contract as contemplated by Section 2.3(a) at or prior to the Closing, then until such time as such Consent is obtained (i) the applicable Seller Purchaser shall continue be entitled to keep the applicable Restricted Asset in effect in accordance with its terms and shall provide the applicable Purchaser with the benefits of the Restricted Asset in question any such Contract accruing after the Closing Date to the extent (and only to the extent) that such the applicable Seller may provide such benefits (Ay) in a manner not in violation of without violating the terms of such Restricted Asset (subject to Section 2.3(d) below) Contract and (Bz) without incurring any material expense (unless the Purchaser has committed to promptly reimburse the applicable Seller therefor) or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if such Seller provides such benefits to such Purchaser, such the Purchaser shall perform at its sole expense the obligations of such the applicable Seller to be performed after the Closing under such Contract to the Restricted Asset in question. Once a Consent for extent (and only to the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained, extent) the applicable Seller shall promptly assign, transfer and deliver such Restricted Asset to applicable Purchaser, and such Purchaser shall assume the obligations is providing benefits under such Restricted Asset that relate Contract to the period from and after the date Purchaser in accordance with clause (i) of assignment, transfer and delivery of such Restricted Asset to such Purchaserthis Section 2.3(b). The terms of this Section 2.3(b) shall not apply with respect to Shared Contracts, it being understood that the treatment of Shared Contracts is addressed in Section 2.3(c).
(c) Prior to the ClosingClosing and consistent with applicable Law, each Seller shall use its reasonable efforts, and each the Purchaser shall use its their commercially reasonable efforts to cooperate with each Seller work together (and, if necessary and desirable, to work with the third parties party to the Shared Contracts) in an effort to (i) divide, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of the Shared Contracts and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (A) the applicable Purchaser is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Purchased Contracts (the “Business Portion”) (so that, subsequent to after the Closing, the applicable Seller shall have no post-Closing rights or post-Closing obligations with respect to the Business Portion of the Shared Contract) and (B) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to the Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to after the Closing, the applicable Purchaser shall have no rights or obligations with respect to the Non-Business Portion of the Shared Contract). If the parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the previous sentence, then (i1) the applicable Purchaser shall be entitled to the benefits of the Business Portion of any such Shared Contract accruing after the Closing Date to the extent (and only to the extent) that the applicable Seller may provide such benefits (Ay) in a manner not in violation of without violating the terms of such Shared Contract (and subject to Section 2.3(d) below) and (Bz) without incurring any material expense (unless the Purchaser has committed to promptly reimburse the applicable Seller therefor) or otherwise taking any material actions or measures (such as hiring additional employees) and (ii2) if the applicable Seller provides such benefits to the applicable Purchaser, such Purchaser shall perform at its sole expense the obligations of the applicable Seller to be performed after the Closing under the Business Portion of such Shared Contract.
(d) In order to effect the parties’ intent as set forth in Sections 2.3(b) and (c) above, if any Consent with respect to a Restricted Asset is not obtained or any division, modification or replication with respect to a Shared Contract is not procured prior to the Closing, the applicable Seller extent (and the applicable Purchaser shall cooperate (at their own expense) in any lawful arrangement reasonably acceptable to such Seller and such Purchaser under which such Purchaser shall obtain the economic claims, rights and benefits under the Restricted Asset or Shared Contract with respect to which the Consent has not been obtained in accordance with this Agreement. Such reasonable arrangement may include subcontracting, sublicensing or subleasing to such Purchaser any and all rights of the applicable Seller under such Restricted Asset or Business Portion of a Shared Contract. To the extent a Purchaser receives the economic claims, rights and benefits under a Restricted Asset or Shared Contract as set forth above, such Purchaser shall be responsible for the Assumed Obligations, if any, arising under such Restricted Asset or Business Portion of a Shared Contract.
(e) Notwithstanding anything only to the contrary contained in this Section 2.3 or elsewhere in this Agreement, in the case of a Transferred Real Property Lease that is a Restricted Asset, (iextent) if the applicable Seller is permitted to sublease the applicable premises to the applicable Purchaser without the consent of the landlord providing benefits under the terms of the lease, such Seller shall sublease the premises to such Purchaser for the rent under the lease without markup or profit of any kind until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) one day before the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise; or (ii) if the applicable Seller is not permitted to sublease the premises to the applicable Purchaser without the landlord’s consent under the terms of the lease, such Seller shall retain the operations of the Business conducted on the premises and the Employees located at the premises (provided that for all other purposes of this Agreement such Employees and the Assets located at such premises shall be treated as having been transferred to the Purchasers as provided in this Agreement) and shall conduct such operations on the premises for the benefit and at the expense and direction of such Purchaser until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise, and during such time such Seller shall turn over Shared Contract to the Purchaser all income received from such operations and such Purchaser shall pay all expenses of such operations. During the continuance of any sublease under in accordance with clause (i1) above or any operation under clause (ii) above, the applicable Seller shall take any action to extend, terminate, amend or otherwise deal with the lease reasonably requested by the applicable Purchaser at such Purchaser’s expense and shall consult with such Purchaser prior to taking any such action not so requested by such Purchaserof this Section 2.3(c).
Appears in 1 contract
Certain Provisions Regarding Assignments. (a) Anything in Notwithstanding anything contained herein to the contrary, neither this Agreement to nor the contrary notwithstanding, this Assignment and Assumption Agreement shall not constitute an agreement to assign or transfer any Assumed Contract or other Asset or any claim, right, benefit or obligation thereunder or resulting therefrom if (i) an assignment or transfer thereof, without the Consent of a third party thereto, would constitute a breach or violation thereof or would in any way adversely affect the rights (upon transfer) of the applicable Purchaser under either Buyers or such Contract or other Asset or result in the loss or cancellation thereof or require a payment thereunder by reason of the assignment or transfer thereof and (ii) such Consent is not obtained at or prior to the Closing (any such Contract or other Asset is to be referred to herein as a “Restricted Asset”) (it being understood that this Section 2.3(a) shall in no way limit any party’s obligations under Section 6.3(c)).
(b) If the parties are not successful in obtaining a Consent required for the consummation of the Contemplated Transactions at or prior to the Closing, then (i) if requested by Buyers and to the extent not in violation of applicable Legal Requirement or Order, the applicable Seller or one of its Affiliates (as applicable) shall continue to keep the applicable Restricted Asset in effect in accordance with its terms and shall provide the applicable Purchaser Buyer with the benefits of the Restricted Asset in question accruing after the Closing Date to the extent that such Seller or its Affiliate may provide such benefits (A) in a manner not in violation of the terms of such Restricted Asset (subject to Section 2.3(d2.12(c) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) ); and (ii) if at the request and sole expense of Buyers and to the extent not in violation of applicable Legal Requirement or Order, the applicable Seller or one of its Affiliates (as applicable) shall exercise any rights of Sellers arising under any such Seller provides Restricted Asset (including the right to elect to terminate any Contract constituting a Restricted Asset in accordance with its terms) and such benefits to such Purchaser, such Purchaser Buyer shall perform at its sole expense the obligations of such Seller to be performed after the Closing or such Affiliate under the Restricted Asset in question. Once a Consent for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained, the applicable Seller or Affiliate (as applicable) shall promptly assign, transfer and deliver such Restricted Asset to the applicable PurchaserBuyer, and such Purchaser Buyer shall assume the obligations under such Restricted Asset that relate pursuant to the period from and after the date of assignment, transfer and delivery of such Restricted Asset to such Purchaser. The terms of this Section 2.3(b) shall not apply with respect to Shared Contracts, it being understood that the treatment of Shared Contracts is addressed in Section 2.3(c)Agreement.
(c) Prior to the Closing, each Seller shall use its reasonable efforts, At Buyers’ option and each Purchaser shall use its reasonable efforts to cooperate with each Seller (and, if necessary and desirable, to work with the third parties to the Shared Contracts) in an effort to (i) divide, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of the Shared Contracts and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (A) the applicable Purchaser is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Purchased Contracts (the “Business Portion”) (so that, subsequent to the Closing, the applicable Seller shall have no post-Closing rights or post-Closing obligations with respect to the Business Portion of the Shared Contract) and (B) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to the Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to the Closing, the applicable Purchaser shall have no rights or obligations with respect to the Non-Business Portion of the Shared Contract). If the parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the previous sentence, then (i) the applicable Purchaser shall be entitled to the benefits of the Business Portion of any such Shared Contract accruing after the Closing Date to the extent that the applicable Seller may provide such benefits (A) in a manner not in violation of the terms of such Shared Contract (and subject to Section 2.3(d) below) and (B) without incurring any material expense applicable Legal Requirement or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if the applicable Seller provides such benefits to the applicable Purchaser, such Purchaser shall perform at its sole expense the obligations of the applicable Seller to be performed after the Closing under the Business Portion of such Shared Contract.
(d) In order to effect the parties’ intent as set forth in Sections 2.3(b) and (c) aboveOrder, if any Consent with respect to a Restricted Asset is not obtained or any division, modification or replication with respect to a Shared Contract is not procured prior to the Closing, the applicable Seller or one of its Affiliates (as applicable) and the applicable Purchaser shall Buyer shall, cooperate (at their own expense) in any lawful arrangement reasonably acceptable to such Seller and such Purchaser Buyer under which such Purchaser Buyer shall obtain obtain, the economic claims, rights and benefits under the Restricted Asset or Shared Contract with respect to which the Consent has not been obtained in accordance with this Agreement. Such reasonable arrangement may include subcontracting, sublicensing or subleasing to such Purchaser Buyer any and all legal rights of the applicable Seller or one of its Affiliates (as applicable) under such Restricted Asset or Business Portion of a Shared ContractAsset. To the extent a Purchaser receives the economic claims, rights and benefits under a Restricted Asset or Shared Contract as set forth above, such Purchaser Buyers shall be responsible only for the Assumed Obligationspost-closing obligations, if any, arising after the Closing under such Restricted Asset or Business Portion of a Shared Contract.
(e) Notwithstanding anything to the contrary contained in this Section 2.3 or elsewhere in this Agreement, in the case of a Transferred Real Property Lease that is a Restricted Asset, (i) if the applicable Seller is permitted to sublease the applicable premises to the applicable Purchaser without the consent of the landlord under the terms of the lease, such Seller shall sublease the premises to such Purchaser for the rent under the lease without markup or profit of any kind until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) one day before the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise; or (ii) if the applicable Seller is not permitted to sublease the premises to the applicable Purchaser without the landlord’s consent under the terms of the lease, such Seller shall retain the operations of the Business conducted on the premises and the Employees located at the premises (provided that for all other purposes of this Agreement such Employees and the Assets located at such premises shall be treated as having been transferred to the Purchasers as provided in this Agreement) and shall conduct such operations on the premises for the benefit and at the expense and direction of such Purchaser until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise, and during such time such Seller shall turn over to the Purchaser all income received from such operations and such Purchaser shall pay all expenses of such operations. During the continuance of any sublease under clause (i) above or any operation under clause (ii) above, the applicable Seller shall take any action to extend, terminate, amend or otherwise deal with the lease reasonably requested by the applicable Purchaser at such Purchaser’s expense and shall consult with such Purchaser prior to taking any such action not so requested by such Purchaser.EXECUTION VERSION
Appears in 1 contract
Samples: Asset Purchase Agreement
Certain Provisions Regarding Assignments. (a) Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign or transfer any Contract or other Asset or any claim, right, benefit or obligation thereunder or resulting therefrom if (i) an assignment or transfer thereof, without the Consent of a third party thereto, would constitute a breach or violation thereof or would in any way adversely affect the rights (upon transfer) of the applicable Purchaser under such Contract or other Asset or result in the loss or cancellation thereof or require a payment thereunder by reason of the assignment or transfer thereof and (ii) such Consent is not obtained at or prior to the Closing (any such Contract or other Asset is to be referred to herein as a “"Restricted Asset”") (it being understood that this Section 2.3(a) shall in no way limit any party’s parties' obligations under Section 6.3(c)).
(b) If the parties are not successful in obtaining a Consent at or prior to the Closing, then (i) the applicable Seller shall continue to keep the applicable Restricted Asset in effect in accordance with its terms and shall provide the applicable Purchaser with the benefits of the Restricted Asset in question accruing after the Closing Date to the extent that such the Seller may provide such benefits (A) in a manner not in violation of the terms of such Restricted Asset (and subject to Section 2.3(d) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if such the Seller provides such benefits to such the Purchaser, such the Purchaser shall perform at its sole expense the obligations of such the Seller to be performed after the Closing under the Restricted Asset in question. Once a Consent for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained, the applicable Seller shall promptly assign, transfer and deliver such Restricted Asset to applicable the Purchaser, and such the Purchaser shall assume the obligations under such Restricted Asset that relate to the period from and after the date of assignment, transfer and delivery of such Restricted Asset to such the Purchaser. The terms of this Section 2.3(b) shall not apply with respect to Shared Contracts, it being understood that the treatment of Shared Contracts is addressed in Section 2.3(c).
(c) Prior to the ClosingClosing and subject to the provisions set forth in Schedule 7.9 with respect to certain Shared Contracts, each the Seller shall use its reasonable efforts, and each the Purchaser shall use its their reasonable best efforts to cooperate with each Seller work together (and, if necessary and desirable, to work with the third parties to the Shared Contracts) in an effort to (i) divide, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of the Shared Contracts and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (A) the applicable Purchaser is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Purchased Contracts (the “Business "Access Portion”") (so that, subsequent to the Closing, the applicable Seller shall have no post-Closing rights or post-Closing obligations with respect to the Business Access Portion of the Shared Contract) and (B) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to the Shared Contract other than the Business Access Portion (the “"Non-Business Access Portion”") (so that, subsequent to the Closing, the applicable Purchaser shall have no rights or obligations with respect to the Non-Business Access Portion of the Shared Contract). If the parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the -24- previous sentence, then (i) the applicable Purchaser shall be entitled to the benefits of the Business Access Portion of any such Shared Contract accruing after the Closing Date to the extent that the applicable Seller may provide such benefits (A) in a manner not in violation of the terms of such Shared Contract (and subject to Section 2.3(d) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if the applicable Seller provides such benefits to the applicable Purchaser, such the Purchaser shall perform at its sole expense the obligations of the applicable Seller to be performed after the Closing under the Business Access Portion of such Shared Contract.
(d) In order to effect the parties’ intent as set forth in Sections 2.3(b) and (c) above, if If any Consent with respect to a Restricted Asset is not obtained or any division, modification or replication with respect to a Shared Contract is not procured prior to the Closing, the applicable Seller and the applicable Purchaser shall cooperate (at their own expense) in any lawful and reasonable arrangement reasonably acceptable to such Seller and such proposed by the Purchaser under which such the Purchaser shall obtain the economic claims, rights and benefits under the Restricted Asset or Shared Contract with respect to which the Consent has not been obtained in accordance with this Agreement. Such reasonable arrangement may include subcontracting, sublicensing or subleasing to such the Purchaser of any and all rights of the applicable Seller Seller, the Parent or Marconi IP under such Restricted Asset or Business Access Portion of a Shared Contract. To the extent a the Purchaser receives the economic claims, rights and benefits under a Restricted Asset or Shared Contract as set forth above, such the Purchaser shall be responsible for the Assumed Obligations, if any, arising under such Restricted Asset or Business Access Portion of a Shared Contract.
(e) Notwithstanding anything to the contrary contained in this Section 2.3 or elsewhere in this Agreement, in the case of a Transferred Real Property Lease that is a Restricted Asset, (i) if the applicable Seller is permitted to sublease the applicable premises to the applicable Purchaser without the consent of the landlord under the terms of the lease, such Seller shall sublease the premises to such Purchaser for the rent under the lease without markup or profit of any kind until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) one day before the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise; or (ii) if the applicable Seller is not permitted to sublease the premises to the applicable Purchaser without the landlord’s consent under the terms of the lease, such Seller shall retain the operations of the Business conducted on the premises and the Employees located at the premises (provided that for all other purposes of this Agreement such Employees and the Assets located at such premises shall be treated as having been transferred to the Purchasers as provided in this Agreement) and shall conduct such operations on the premises for the benefit and at the expense and direction of such Purchaser until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise, and during such time such Seller shall turn over to the Purchaser all income received from such operations and such Purchaser shall pay all expenses of such operations. During the continuance of any sublease under clause (i) above or any operation under clause (ii) above, the applicable Seller shall take any action to extend, terminate, amend or otherwise deal with the lease reasonably requested by the applicable Purchaser at such Purchaser’s expense and shall consult with such Purchaser prior to taking any such action not so requested by such Purchaser.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Advanced Fibre Communications Inc)
Certain Provisions Regarding Assignments. (a) Anything in this Agreement Notwithstanding anything contained herein to the contrary notwithstandingcontrary, this Agreement shall not constitute an agreement to assign or transfer any Contract Contract, Permit or other Asset or any claim, right, benefit or obligation thereunder or resulting therefrom if (i) an assignment or transfer thereof, without the Consent of a third party thereto, would constitute a breach or violation thereof or would in impose any way adversely affect obligation or liability on the rights (upon transfer) of the applicable Purchaser under such Contract or other Asset or result in the loss or cancellation thereof or require a payment thereunder by reason of the assignment or transfer thereof Seller and (ii) such Consent is not obtained at or prior to the Closing (any such Contract or other Asset is to be referred to herein as a “Restricted Asset”) (it being understood that this Section 2.3(a) shall in no way limit any party’s obligations under Section 6.3(c))Closing.
(b) If the parties are not successful in obtaining a Consent required in connection with the transfer of the Assets at or prior to the Closing, then then, subject to Section 2.3(c), (i) the applicable Seller Purchaser shall continue be entitled to keep the applicable Restricted Asset in effect in accordance with its terms and shall provide the applicable Purchaser with the benefits of the Restricted Asset Contract in question accruing after the Closing Date to the extent (and only to the extent) that such the Seller may provide such benefits (Ay) in a manner not in violation of without violating the terms of such Restricted Asset (subject to Section 2.3(d) below) Contract or Permit and (Bz) without incurring any material incremental expense or otherwise taking any material actions or measures except as required by the Transition Services Agreement (such as hiring additional employees) and (ii) if such Seller provides such benefits to such Purchaser, such the Purchaser shall perform at its sole expense the obligations of such the Seller to be performed after the Closing under the Restricted Asset Contract or Permit in question. Once a Consent for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained, the applicable Seller shall promptly assign, transfer and deliver such Restricted Asset to applicable Purchaser, and such Purchaser shall assume the obligations under such Restricted Asset that relate to the period from and after the date of assignment, transfer and delivery of such Restricted Asset to such Purchaser. The terms of this Section 2.3(b) shall not apply with respect to Shared Contracts, it being understood that the treatment of Shared Contracts is addressed in Section 2.3(c).
(c) Prior to the Closing, each Seller party shall use its reasonable efforts, and each Purchaser shall use its commercially reasonable efforts to cooperate with each Seller work together (and, if necessary and desirable, to work with the third parties to the Shared Contracts) in an effort to (i) divide, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of the Shared Contracts and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (A) the applicable Purchaser is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Purchased Contracts (the “Business Acute Portion”) (so that, subsequent to the Closing, the applicable Seller shall have no post-Closing rights or post-Closing obligations with respect to the Business Acute Portion of the Shared Contract) and (B) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to the Shared Contract other than the Business Acute Portion (the “Non-Business Acute Portion”) (so that, subsequent to the Closing, the applicable Purchaser shall have no rights or obligations with respect to the Non-Business Acute Portion of the Shared Contract). If the parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the previous sentence, then (i) the applicable Purchaser shall be entitled to the benefits of the Business Acute Portion of any such Shared Contract accruing after the Closing Date to the extent that the applicable Seller may provide such benefits (A) in a manner not in violation of the terms of such Shared Contract (and subject to Section 2.3(d) below) and (B) without incurring any material incremental expense or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if the applicable Seller provides such benefits to the applicable Purchaser, such the Purchaser shall perform at its sole expense the obligations of the applicable Seller to be performed after the Closing under the Business Acute Portion of such Shared Contract.
(d) In order Promptly following the execution of this Agreement, with respect to effect each DC Lease, the parties’ intent Seller shall use its commercially reasonable efforts to obtain the Consent of the relevant landlord to the assignment of each such DC Lease on terms reasonably acceptable to the Purchaser and the Seller (collectively, the “Landlord Consents”), but shall not be required to commence judicial proceedings for a declaration that any Landlord Consent has been unreasonably withheld or delayed, pay any consent fees or provide or maintain any security or guaranty to any Landlord following the Closing. The Purchaser shall cooperate with the Seller in attempting to obtain the Landlord Consents, including: (i) providing financial statements and references as may be reasonably requested by any Landlord, (ii) agreeing to any amendments to the DC Leases as may be reasonably requested by the relevant Landlord; provided such amendments would not reasonably be expected, in the aggregate, to increase in any material respect the liability of the Purchaser as tenant or to decrease in any material respect the Purchaser’s rights as tenant thereunder, and (iii) executing and delivering (and agreeing to execute and deliver) a guarantee by the ultimate parent of the Purchaser (or other subsidiary of the ultimate parent) of the obligations under the relevant DC Lease. To the extent the Purchaser has complied with its obligations set forth in Sections 2.3(b) the immediately preceding sentence and (c) above, if any the Seller is not able to obtain a Landlord Consent with respect to a Restricted Asset Distribution Center listed on Schedule 2.3(d) (each a “Key Distribution Center”) and as a result the relevant DC Lease is not obtained or any divisiontransferred to the Purchaser pursuant to the terms of this Agreement, modification or replication with respect to a Shared Contract and the Seller is not procured prior otherwise able to obtain Consent from such Landlord to sublease a Key Distribution Center to the Purchaser, following the Closing, the applicable Seller and shall provide the applicable Purchaser shall cooperate with Full Support Transition Services (at their own expense) in any lawful arrangement reasonably acceptable to as such Seller and such Purchaser under which such Purchaser shall obtain the economic claims, rights and benefits term is defined under the Restricted Asset or Shared Contract Transition Services Agreement) with respect to which such Key Distribution Center under the Consent has not been obtained in accordance with this Agreement. Such reasonable arrangement may include subcontracting, sublicensing or subleasing to such Purchaser any terms and all rights conditions of the applicable Seller under such Restricted Asset or Business Portion Transition Services Agreement until the earlier of a Shared Contract. To the extent a Purchaser receives the economic claims, rights and benefits under a Restricted Asset or Shared Contract as set forth above, such Purchaser shall be responsible for the Assumed Obligations, if any, arising under such Restricted Asset or Business Portion of a Shared Contract.
(e) Notwithstanding anything to the contrary contained in this Section 2.3 or elsewhere in this Agreement, in the case of a Transferred Real Property Lease that is a Restricted Asset, (i) if twelve (12) months following the applicable Seller is permitted to sublease the applicable premises to the applicable Purchaser without the consent of the landlord under the terms of the lease, such Seller shall sublease the premises to such Purchaser for the rent under the lease without markup or profit of any kind until the earlier to occur of Closing and (Aii) the date on which alternative distribution capabilities are available to and ready for operation by the landlord’s consent is obtained and Purchaser with respect to the lease assigned to distribution functions of such Purchaser and (B) one day before Key Distribution Center. To the expiration of extent the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise; or (ii) if the applicable Seller is not permitted able to obtain such a Landlord Consent but is otherwise able to sublease the premises Key Distribution Center to the applicable Purchaser, then the Purchaser without shall negotiate in good faith a sublease for such Key Distribution Center; provided such sublease would not reasonably be expected to increase materially the landlord’s consent under the terms liability of the leasePurchaser or decrease materially the Purchaser’s rights, and, if required, the Purchaser shall cause Purchaser Parent (or other subsidiary of Purchaser Parent) to execute and deliver a guarantee by Purchaser Parent of the obligations under such sublease in form and substance reasonably acceptable to Purchaser Parent (or other subsidiary of Purchaser Parent). To the extent the Seller is not able to obtain such a Landlord Consent and is not able to sublease a Key Distribution Center to the Purchaser, then the Purchaser agrees to use all reasonable efforts to locate and put in operation such alternative distribution capabilities as soon as practicable following notice from the Seller that it is unable to obtain any such Landlord Consent or sublease. The Seller shall retain reimburse the operations of the Business conducted on the premises and the Employees located at the premises (provided that Purchaser for all other purposes of this Agreement its reasonable out-of-pocket costs incurred in connection with making such Employees and the Assets located at alternative arrangements for each such premises shall be treated as having been transferred Key Distribution Center, in each case up to the Purchasers as provided in this Agreement) and shall conduct amounts for each such operations Key Distribution Center set forth on the premises for the benefit and at the expense and direction of such Purchaser until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise, and during such time such Seller shall turn over to the Purchaser all income received from such operations and such Purchaser shall pay all expenses of such operations. During the continuance of any sublease under clause (i) above or any operation under clause (ii) above, the applicable Seller shall take any action to extend, terminate, amend or otherwise deal with the lease reasonably requested by the applicable Purchaser at such Purchaser’s expense and shall consult with such Purchaser prior to taking any such action not so requested by such PurchaserSchedule 2.3(d).
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Owens & Minor Inc/Va/)
Certain Provisions Regarding Assignments. (a) Anything in Notwithstanding anything contained herein to the contrary, neither this Agreement to nor the contrary notwithstanding, this Assignment and Assumption Agreement shall not constitute an agreement to assign or transfer any Assumed Contract or other Asset or any claim, right, benefit or obligation thereunder or resulting therefrom if (i) an assignment or transfer thereof, without the Consent of a third party thereto, would constitute a breach or violation thereof or would in any way adversely affect the rights (upon transfer) of the applicable Purchaser under either Buyers or such Contract or other Asset or result in the loss or cancellation thereof or require a payment thereunder by reason of the assignment or transfer thereof and (ii) such Consent is not obtained at or prior to the Closing (any such Contract or other Asset is to be referred to herein as a “Restricted Asset”) (it being understood that this Section 2.3(a) shall in no way limit any party’s obligations under Section 6.3(c)).
(b) If the parties are not successful in obtaining a Consent required for the consummation of the Contemplated Transactions at or prior to the Closing, then (i) if requested by Buyers and to the extent not in violation of applicable Legal Requirement or Order, the applicable Seller or one of its Affiliates (as applicable) shall continue to keep the applicable Restricted Asset in effect in accordance with its terms and shall provide the applicable Purchaser Buyer with the benefits of the Restricted Asset in question accruing after the Closing Date to the extent that such Seller or its Affiliate may provide such benefits (A) in a manner not in violation of the terms of such Restricted Asset (subject to Section 2.3(d2.12(c) below) and (B) without incurring any material expense or otherwise taking any material actions or measures (such as hiring additional employees) ); and (ii) if at the request and sole expense of Buyers and to the extent not in violation of applicable Legal Requirement or Order, the applicable Seller or one of its Affiliates (as applicable) shall exercise any rights of Sellers arising under any such Seller provides Restricted Asset (including the right to elect to terminate any Contract constituting a Restricted Asset in accordance with its terms) and such benefits to such Purchaser, such Purchaser Buyer shall perform at its sole expense the obligations of such Seller to be performed after the Closing or such Affiliate under the Restricted Asset in question. Once a Consent for the sale, assignment, assumption, transfer, conveyance and delivery of a Restricted Asset is obtained, the applicable Seller or Affiliate (as applicable) shall promptly assign, transfer and deliver such Restricted Asset to the applicable PurchaserBuyer, and such Purchaser Buyer shall assume the obligations under such Restricted Asset that relate pursuant to the period from and after the date of assignment, transfer and delivery of such Restricted Asset to such Purchaser. The terms of this Section 2.3(b) shall not apply with respect to Shared Contracts, it being understood that the treatment of Shared Contracts is addressed in Section 2.3(c)Agreement.
(c) Prior to the Closing, each Seller shall use its reasonable efforts, At Buyers’ option and each Purchaser shall use its reasonable efforts to cooperate with each Seller (and, if necessary and desirable, to work with the third parties to the Shared Contracts) in an effort to (i) divide, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of the Shared Contracts and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (A) the applicable Purchaser is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Purchased Contracts (the “Business Portion”) (so that, subsequent to the Closing, the applicable Seller shall have no post-Closing rights or post-Closing obligations with respect to the Business Portion of the Shared Contract) and (B) the applicable Seller is the beneficiary of the rights and is responsible for the obligations related to the Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to the Closing, the applicable Purchaser shall have no rights or obligations with respect to the Non-Business Portion of the Shared Contract). If the parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the previous sentence, then (i) the applicable Purchaser shall be entitled to the benefits of the Business Portion of any such Shared Contract accruing after the Closing Date to the extent that the applicable Seller may provide such benefits (A) in a manner not in violation of the terms of such Shared Contract (and subject to Section 2.3(d) below) and (B) without incurring any material expense applicable Legal Requirement or otherwise taking any material actions or measures (such as hiring additional employees) and (ii) if the applicable Seller provides such benefits to the applicable Purchaser, such Purchaser shall perform at its sole expense the obligations of the applicable Seller to be performed after the Closing under the Business Portion of such Shared Contract.
(d) In order to effect the parties’ intent as set forth in Sections 2.3(b) and (c) aboveOrder, if any Consent with respect to a Restricted Asset is not obtained or any division, modification or replication with respect to a Shared Contract is not procured prior to the Closing, the applicable Seller or one of its Affiliates (as applicable) and the applicable Purchaser shall Buyer shall, cooperate (at their own expense) in any lawful arrangement reasonably acceptable to such Seller and such Purchaser Buyer under which such Purchaser Buyer shall obtain obtain, the economic claims, rights and benefits under the Restricted Asset or Shared Contract with respect to which the Consent has not been obtained in accordance with this Agreement. Such reasonable arrangement may include subcontracting, sublicensing or subleasing to such Purchaser Buyer any and all legal rights of the applicable Seller or one of its Affiliates (as applicable) under such Restricted Asset or Business Portion of a Shared ContractAsset. To the extent a Purchaser receives the economic claims, rights and benefits under a Restricted Asset or Shared Contract as set forth above, such Purchaser Buyers shall be responsible only for the Assumed Obligationspost-closing obligations, if any, arising after the Closing under such Restricted Asset or Business Portion of a Shared ContractAsset.
(e) Notwithstanding anything to the contrary contained in this Section 2.3 or elsewhere in this Agreement, in the case of a Transferred Real Property Lease that is a Restricted Asset, (i) if the applicable Seller is permitted to sublease the applicable premises to the applicable Purchaser without the consent of the landlord under the terms of the lease, such Seller shall sublease the premises to such Purchaser for the rent under the lease without markup or profit of any kind until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) one day before the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise; or (ii) if the applicable Seller is not permitted to sublease the premises to the applicable Purchaser without the landlord’s consent under the terms of the lease, such Seller shall retain the operations of the Business conducted on the premises and the Employees located at the premises (provided that for all other purposes of this Agreement such Employees and the Assets located at such premises shall be treated as having been transferred to the Purchasers as provided in this Agreement) and shall conduct such operations on the premises for the benefit and at the expense and direction of such Purchaser until the earlier to occur of (A) the date on which the landlord’s consent is obtained and the lease assigned to such Purchaser and (B) the expiration of the lease and all renewal options under the lease that such Purchaser timely requests such Seller to exercise, and during such time such Seller shall turn over to the Purchaser all income received from such operations and such Purchaser shall pay all expenses of such operations. During the continuance of any sublease under clause (i) above or any operation under clause (ii) above, the applicable Seller shall take any action to extend, terminate, amend or otherwise deal with the lease reasonably requested by the applicable Purchaser at such Purchaser’s expense and shall consult with such Purchaser prior to taking any such action not so requested by such Purchaser.
Appears in 1 contract
