Common use of Consents; Cooperation Clause in Contracts

Consents; Cooperation. (a) Each of Parent, Buyer and Seller shall, promptly after the Agreement Date, apply for or otherwise seek, and use its reasonable best efforts to obtain, all governmental consents, waivers and approvals required to be obtained by it for the consummation of the Asset Purchase. (b) Seller shall use commercially reasonable efforts to obtain prior to the Closing, and deliver to Buyer at or prior to the Closing, all consents, waivers and approvals under each Assigned Agreement listed or described on Schedule 3.2(c) to the Seller Disclosure Letter; provided, however, that Seller shall not be required to make any payment (other than (i) reimbursement of reasonable out-of-pocket expenses of any third party incurred in connection with the review of such consent, approval or waiver request and (ii) refund of any prepaid fees triggered by such assignment or transfer pursuant to the terms of the Assigned Agreements, which Assigned Agreements are listed on Schedule 5.11(b)(1) to the Seller Disclosure Letter) or agree to any material undertakings in connection therewith. To the extent that Seller is unable to obtain such required consents, waivers and approvals, then Seller shall use commercially reasonable efforts, without breaching such Assigned Agreement, to enforce, for the account of Buyer, any rights of Seller arising from any such Assigned Agreement (including the right to elect to terminate such Assigned Agreement in accordance with the terms thereof upon the advice of Buyer). Buyer agrees to cooperate with Seller and supply relevant information to such party or parties or such third party in order to assist Seller in its obligations under this 5.11(b). Any Contracts of Seller to be terminated prior to Closing are listed or described on Schedule 5.11(b)(2) of the Seller Disclosure Letter, and Seller shall use its reasonable best efforts to terminate such Contracts prior to the Closing and deliver evidence of such termination to Buyer at or prior to the Closing. Any Contracts of Seller to be amended prior to Closing are listed or described on Schedule 5.11(b)(3) of the Seller Disclosure Letter, and Seller shall use its reasonable best efforts to amend such Contracts prior to the Closing and deliver evidence of such amendment to Buyer at or prior to the Closing, in the manner described on such exhibit with respect to each such Contract. (i) Any Assigned Agreements that provide for payment of maintenance or support fees by a Seller Customer to Seller are listed on Schedule 5.11(c) of the Seller Disclosure Letter, which schedule shall set forth with respect to each such Assigned Agreement: (A) the name of the Seller Customer; (B) the date of such agreement; (C) whether such agreement is listed on Schedule 3.2(c) of the Seller Disclosure Letter (each such agreement, a “Required Consent Maintenance Agreement”) and (D) the amount of unrecognized maintenance or support fees under such agreement. The total amount of maintenance or support fees that remain to be paid under all of the Assigned Agreements listed on Schedule 5.11(c) of the Seller Disclosure Letter is herein referred to as the “Total Maintenance Fees,” while the total amount of maintenance or support fees that remain to be paid under all of the Required Consent Maintenance Agreements is herein referred to as the “Total Required Consent Maintenance Fees.” Schedule 5.11(c) shall be updated by Seller at least one Business Day prior to Closing. (ii) Seller shall use commercially reasonable efforts to obtain prior to the Closing, and deliver to Buyer at or prior to the Closing, all consents, waivers and approvals under each Required Consent Maintenance Agreement to permit the assignment to Buyer or Parent of all such Required Consent Maintenance Agreements (each Required Consent Maintenance Agreement for which Seller obtains the requisite consents, waivers and approvals subsequent to the Closing Date, a “Consented Maintenance Agreement”). In the event that Seller is unable to secure such necessary consents, waivers and approvals as of the Closing Date, then with respect to each such unassigned Required Consent Maintenance Agreement, Seller will (A) subcontract to Parent the right to provide all maintenance and support under such unassigned Required Consent Maintenance Agreement and (B) promptly remit to Parent all payments received by Seller from all such Seller Customers for maintenance or support fees. After the Closing Date, Seller will continue to use commercially reasonable efforts to obtain all consents, waivers and approvals to permit the assignment to Buyer or Parent of each Required Consent Maintenance Agreement that remains unassigned to Parent or Buyer as of the Closing Date. (iii) In the event that Seller is able to obtain prior to December 31, 2003 the requisite consents, waivers and approvals under Required Consent Maintenance Agreements to permit the assignment to Buyer or Parent of such Required Consent Maintenance Agreements, then Seller shall be entitled to receive a collection fee from Parent calculated in accordance with the following formula: the product of (A) the product of (1) 0.05 and (2) the Total Required Consent Maintenance Fees as of the Closing Date and (B) the quotient of (1) the portion of the Total Required Consent Maintenance Fees that is attributable to Required Consent Maintenance Agreements that become Consented Maintenance Agreements on or prior to December 31, 2003 and (2) the Total Required Consent Maintenance Fees as of the Closing Date. By way of example, if (1) Total Required Consent Maintenance Fees as of the Closing Date equals $2.0 million and (2) the portion of the Total Required Consent Maintenance Fees that is attributable to Required Consent Maintenance Agreements that become Consented Maintenance Agreements on or prior to December 31, 2003 equals $1.5 million, then Parent would pay to Seller a collection fee of $75,000: (iv) In the event that Seller is unable to obtain the necessary consents, waivers and approvals to permit the assignment to Buyer or Parent of any Required Consent Maintenance Agreements, then Seller will not be permitted to renew the term of such Required Consent Maintenance Agreements prior to the expiration of such agreement; provided, however that the foregoing shall not prevent a Seller Customer from exercising any renewal right existing under a Required Consent Maintenance Agreement as of the Agreement Date, provided, further, that Seller shall discourage any Seller Customer from so exercising any such renewal right. (d) (i) Any Assigned Agreements that provide for payment of professional services fees by a Seller Customer to Seller are listed on Schedule 5.11(d) of the Seller Disclosure Letter, which schedule shall set forth with respect to each such Assigned Agreement: (A) the name of the Seller Customer; (B) the date of such agreement; (C) whether such agreement is listed on Schedule 3.2(c) of the Seller Disclosure Letter (each such agreement, a “Required Consent Services Agreement”) and (D) the estimate of the professional services fees that remain to be paid for work remaining to be performed under such agreement as set forth on the applicable statement of work. The total amount of professional services fees that remain to be paid under all of the Assigned Agreements listed on Schedule 5.11(d) of the Seller Disclosure Letter is herein referred to as the “Total Services Fees,” while the total amount of professional services fees that remain to be paid under all of the Required Consent Services Agreements is herein referred to as the “Total Required Consent Services Fees.” Schedule 5.11(d) shall be updated by Seller at least one Business Day prior to Closing.

Consents; Cooperation. (a) Each of Parent, the Seller and the Buyer and Seller shall, promptly after the Agreement Date, apply for or otherwise seekshall cooperate, and use its commercially reasonable best efforts efforts, and furnish to obtaineach other necessary information and reasonable assistance as the other party may request (subject to such party’s payment of all related and reasonable fees and expenses for external auditors and accountants providing any required audited financial statements) to make all filings and obtain all licenses, all governmental permits, consents, waivers approvals, authorizations, qualifications and orders of Governmental Entities and other third parties necessary to consummate the transactions contemplated by this Agreement, including but not limited to the Bar Requirements; provided, however, that, notwithstanding the foregoing, the actions of the Seller and the Buyer with respect to filings, approvals and other matters pursuant to any Antitrust Regulations applicable to the Seller, the Company or the Buyer shall be governed by subsections (b), (c), (d) and (e) of this Section 4.3. In addition to the foregoing, the Buyer agrees to provide such assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any third party whose consent or approval is sought under this Agreement. (b) The Seller and the Buyer shall file with any applicable Governmental Entity all filings, reports, information and documentation required to be obtained by it for the consummation of the Asset Purchase. (b) transactions contemplated by this Agreement pursuant to the Antitrust Regulations. The Seller and the Buyer shall furnish to each other’s counsel such necessary information and reasonable assistance as the other party may request in connection with its preparation of any filing or submission that is necessary under the Antitrust Regulations. The Seller and the Buyer shall consult with each other as to the appropriate time of making such filings and submissions and shall use commercially reasonable efforts to obtain prior make such filings and submissions at the agreed upon time. Notwithstanding the foregoing, the Buyer and the Seller shall file for approval under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, within ten business days after the date of this Agreement and shall seek early termination of the associated waiting period (unless otherwise agreed by their legal counsel) and to cooperate with the other parties to the Closingextent reasonably necessary to assist in making reasonable supplemental presentations to the applicable Governmental Entities and, if requested by such entities, to promptly amend or furnish additional information thereunder. (c) The Seller and the Buyer shall keep each other apprised of the status of any communications with, and deliver any inquiries or requests for additional information from, Governmental Entities and shall comply promptly with any such inquiry or request. The Seller and the Buyer shall use their commercially reasonable efforts to Buyer at defend, lift and appeal and mitigate the effect of any Legal Proceeding adversely affecting this Agreement or prior the transactions contemplated by this Agreement. (d) If reasonably necessary to satisfy local Legal Requirements, each party hereto shall enter into separate agreements and other conveyance documents as needed to effectuate the Transactions, provided that the terms of such other agreements and documents do not alter in any material respect the rights and obligations of the parties under this Agreement. (e) Notwithstanding anything to the Closingcontrary in this Agreement, all consentsexcept as set forth in Section 4.3(a) with respect to antitrust approvals, waivers and approvals under each Assigned Agreement listed or described on Schedule 3.2(c(i) to neither the Seller Disclosure Letter; provided, however, that Seller or the Company on the one hand or the Buyer and its Affiliates on the other hand shall not be required to make take any payment (other than (i) reimbursement of reasonable out-of-pocket expenses of any third party incurred action in connection with the review of satisfying its obligations to obtain consents if such actions would require such Person to make any material payments or suffer any material burden on such Person in order to obtain any consent, approval or waiver request ; and (ii) refund of any prepaid fees triggered by such assignment or transfer pursuant to without the terms prior written consent of the Assigned AgreementsBuyer, which Assigned Agreements are listed on Schedule 5.11(b)(1) to neither the Seller Disclosure Letter) or nor the Company will, in seeking to obtain any such consents, agree to amend, modify, terminate or waive any material undertakings rights under the applicable contracts to which such consents relate or otherwise require the Company to make any payments or suffer any burden in connection therewith. To the extent that Seller is unable to obtain such required consents, waivers and approvals, then Seller shall use commercially reasonable efforts, without breaching such Assigned Agreement, to enforce, for the account of Buyer, any rights of Seller arising from any such Assigned Agreement (including the right to elect to terminate such Assigned Agreement in accordance with the terms thereof upon the advice of Buyer). Buyer agrees to cooperate with Seller and supply relevant information to such party or parties or such third party in order to assist Seller in its obligations under this 5.11(b). Any Contracts of Seller to be terminated prior to Closing are listed or described on Schedule 5.11(b)(2) of the Seller Disclosure Letter, and Seller shall use its reasonable best efforts to terminate such Contracts prior to the Closing and deliver evidence of such termination to Buyer at or prior to the Closing. Any Contracts of Seller to be amended prior to Closing are listed or described on Schedule 5.11(b)(3) of the Seller Disclosure Letter, and Seller shall use its reasonable best efforts to amend such Contracts prior to the Closing and deliver evidence of such amendment to Buyer at or prior to the Closing, in the manner described on such exhibit with respect to each such Contract. (if) Any Assigned Agreements The parties acknowledge that provide for payment of maintenance or support fees by a Seller Customer to Seller are listed on Schedule 5.11(c) of the Seller Disclosure Letter, which schedule shall set forth with respect to each such Assigned Agreement: (A) the name of the Seller Customer; (B) the date of such agreement; (C) whether such agreement is listed on Schedule 3.2(c) of the Seller Disclosure Letter (each such agreement, a “Required Consent Maintenance Agreement”) and (D) the amount of unrecognized maintenance or support fees under such agreement. The total amount of maintenance or support fees that remain to be paid under all of the Assigned Agreements listed on Schedule 5.11(c) of the Seller Disclosure Letter is herein referred to as the “Total Maintenance Fees,” while the total amount of maintenance or support fees that remain to be paid under all of the Required Consent Maintenance Agreements is herein referred to as the “Total Required Consent Maintenance Fees.” Schedule 5.11(c) shall be updated by Seller at least one Business Day prior to Closing. (ii) Seller shall use commercially reasonable efforts to obtain prior to the Closing, and deliver to Buyer at or prior to the Closing, all consents, waivers and approvals under each Required Consent Maintenance Agreement to permit the assignment to Buyer or Parent of all such Required Consent Maintenance Agreements (each Required Consent Maintenance Agreement for which Seller obtains the requisite consents, waivers and approvals subsequent to the Closing Date, a “Consented Maintenance Agreement”)the Seller or its Affiliates has or will furnish certain administrative, management, accounting and operational services to the Company Business. In the event that Seller is unable to secure such necessary consents, waivers and approvals Such services shall be terminated as of the Closing Date, then with respect to each such unassigned Required Consent Maintenance Agreementexcept that, at the Buyer’s option, the Seller will (A) subcontract to Parent the right to provide or its Affiliates shall continue some or all maintenance and support under such unassigned Required Consent Maintenance Agreement and (B) promptly remit to Parent all payments received by Seller from all such Seller Customers for maintenance or support fees. After the Closing Date, Seller will continue to use commercially reasonable efforts to obtain all consents, waivers and approvals to permit the assignment to Buyer or Parent of each Required Consent Maintenance Agreement that remains unassigned to Parent or Buyer as of the Closing Date. (iii) In the event that Seller is able to obtain prior to December 31, 2003 the requisite consents, waivers and approvals under Required Consent Maintenance Agreements to permit the assignment to Buyer or Parent of such Required Consent Maintenance Agreements, then Seller shall be entitled services for up to receive a collection fee from Parent calculated in accordance with the following formula: the product of (A) the product of (1) 0.05 and (2) the Total Required Consent Maintenance Fees as of 90 days after the Closing Date under the Transition Services Agreement with customary terms, and (B) providing for the quotient of (1) Buyer to reimburse the portion of the Total Required Consent Maintenance Fees that is attributable to Required Consent Maintenance Agreements that become Consented Maintenance Agreements on or prior to December 31, 2003 and (2) the Total Required Consent Maintenance Fees as of Seller for such services beginning immediately after the Closing Date. By way of example, if (1) Total Required Consent Maintenance Fees as of at the Closing Date equals $2.0 million Seller’s actual cost plus ten percent and (2) the portion of the Total Required Consent Maintenance Fees that is attributable to Required Consent Maintenance Agreements that become Consented Maintenance Agreements on or prior to December 31, 2003 equals $1.5 million, then Parent would pay to Seller a collection fee of $75,000: (iv) In the event that Seller is unable to obtain the necessary consents, waivers and approvals to permit the assignment to Buyer or Parent of any Required Consent Maintenance Agreements, then Seller will not be permitted to renew the term of such Required Consent Maintenance Agreements prior to the expiration of such agreement; provided, however that the foregoing shall not prevent a Seller Customer from exercising any renewal right existing under a Required Consent Maintenance Agreement as of the Agreement Date, provided, further, that Seller shall discourage any Seller Customer from so exercising any such renewal right. (d) (i) Any Assigned Agreements that provide providing for payment of professional services fees by a Seller Customer to Seller are listed on Schedule 5.11(d) of the Seller Disclosure Letter, to bxxx the Buyer for such services promptly following the end of each month during which schedule shall set forth with respect to each such Assigned Agreement: (A) the name of the Seller Customer; (B) the date of such agreement; (C) whether such agreement is listed on Schedule 3.2(c) of the Seller Disclosure Letter (each such agreement, a “Required Consent Services Agreement”) and (D) the estimate of the professional services fees that remain to be paid for work remaining to be performed under such agreement as set forth on the applicable statement of work. The total amount of professional services fees that remain to be paid under all of the Assigned Agreements listed on Schedule 5.11(d) of the Seller Disclosure Letter is herein referred to as the “Total Services Fees,” while the total amount of professional services fees that remain to be paid under all of the Required Consent Services Agreements is herein referred to as the “Total Required Consent Services Feesare rendered.” Schedule 5.11(d) shall be updated by Seller at least one Business Day prior to Closing.

Consents; Cooperation. (a) Each Seller will use its reasonable best efforts prior to the Closing to obtain all consents that may be required from third parties with respect to the Assumed Contracts and Leases and any of Parent, Buyer the other Purchased Property and Seller Purchaser shall cooperate therewith. Purchaser shall, promptly after the Agreement Dateor shall request Third-Party Tenant to, apply for or otherwise seek, and use its reasonable best efforts to obtain, all governmental consents, waivers and approvals required to be obtained by it for diligently pursue the consummation issuance or transfer of any of the Asset Purchase. (b) Seller shall use commercially reasonable efforts governmental licenses or permits required for Purchaser or Third-Party Tenant, as applicable, to obtain prior to operate the Business following the Closing, and deliver Seller agrees to Buyer at provide reasonable cooperation and assistance to Purchaser in obtaining such licenses and permits. Purchaser shall make reasonable efforts to cause Third-Party Tenant to submit application for issuance of any governmental licenses or prior to permits within five (5) days of the Closingexpiration of the Due Diligence Period, all consentsalthough Third Party Tenant may, waivers and approvals under each Assigned Agreement listed or described on Schedule 3.2(cshall be encouraged to, submit such applications as soon as possible following the Effective Date. Notwithstanding the foregoing, (i) to the Seller Disclosure Letter; provided, however, that Seller shall not neither party will be required to make pay or commit to pay any payment amount to (or incur any liability or obligation to) a person or entity from whom or which a consent may be required (other than (i) reimbursement payment by Seller of reasonable out-of-pocket expenses past due amounts under Assumed Contracts and Leases or past due taxes, or payment by Purchaser of any third party incurred in connection fees or other costs imposed by governmental authorities with respect to licenses and permits, or transfer fees, if any, required by the review express terms of any Assumed Contracts and Leases) or otherwise enter into or modify any agreement with such consentperson or entity that involves any cost, approval liability or waiver request obligation, and (ii) refund of any prepaid fees triggered by such assignment or transfer pursuant to the terms of extent Purchaser determines, in its sole discretion, that the Assigned Agreements, which Assigned Agreements are listed on Schedule 5.11(b)(1) to the Seller Disclosure Letter) governmental licenses or agree to any material undertakings in connection therewith. To the extent that Seller is unable to obtain such permits required consents, waivers and approvals, then Seller shall use commercially reasonable efforts, without breaching such Assigned Agreement, to enforce, for the account of Buyer, any rights of Seller arising from any such Assigned Agreement (including Third-Party Tenant to operate the right to elect to terminate such Assigned Agreement in accordance with the terms thereof upon the advice of Buyer). Buyer agrees to cooperate with Seller and supply relevant information to such party or parties or such third party in order to assist Seller in its obligations under this 5.11(b). Any Contracts of Seller to be terminated prior to Closing are listed or described on Schedule 5.11(b)(2) of the Seller Disclosure Letter, and Seller shall use its reasonable best efforts to terminate such Contracts prior to Business following the Closing and deliver evidence of such termination to Buyer at will not be obtained by Third-Party Tenant or prior to the Closing. Any Contracts of Seller to be amended prior to Closing are listed or described on Schedule 5.11(b)(3) of the Seller Disclosure Letter, and Seller shall use its reasonable best efforts to amend such Contracts prior to the Closing and deliver evidence of such amendment to Buyer at or prior to the Closing, in the manner described on such exhibit with respect to each such Contract. (i) Any Assigned Agreements that provide for payment of maintenance or support fees by a Seller Customer to Seller are listed on Schedule 5.11(c) of the Seller Disclosure Letter, which schedule shall set forth with respect to each such Assigned Agreement: (A) the name of the Seller Customer; (B) the date of such agreement; (C) whether such agreement is listed on Schedule 3.2(c) of the Seller Disclosure Letter (each such agreement, a “Required Consent Maintenance Agreement”) and (D) the amount of unrecognized maintenance or support fees under such agreement. The total amount of maintenance or support fees that remain to be paid under all of the Assigned Agreements listed on Schedule 5.11(c) of the Seller Disclosure Letter is herein referred to as the “Total Maintenance Fees,” while the total amount of maintenance or support fees that remain to be paid under all of the Required Consent Maintenance Agreements is herein referred to as the “Total Required Consent Maintenance Fees.” Schedule 5.11(c) shall be updated by Seller at least one Business Day affiliates prior to Closing. , Seller agrees to enter into a Transition Period Sublease (iias defined herein) with Purchaser or Third-Party Tenant for the continued operation of the Business by Seller shall use commercially reasonable efforts to obtain prior or its affiliates, as applicable, until Third-Party Tenant obtains such licenses and permits. Neither party makes any representation or warranty to the Closingother regarding the extent to which the pre-merger filing requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, and deliver to Buyer at or prior as amended (“HSR Act”) apply to the Closing, all consents, waivers and approvals transactions contemplated under each Required Consent Maintenance Agreement to permit the assignment to Buyer or Parent of all such Required Consent Maintenance Agreements (each Required Consent Maintenance Agreement for which Seller obtains the requisite consents, waivers and approvals subsequent to the Closing Date, a “Consented Maintenance this Agreement”). In the event that Seller is unable to secure such necessary consents, waivers and approvals as of the Closing Date, then with respect to each such unassigned Required Consent Maintenance Agreement, Seller will (A) subcontract to Parent the right to provide all maintenance and support under such unassigned Required Consent Maintenance Agreement and (B) promptly remit to Parent all payments received by Seller from all such Seller Customers for maintenance or support fees. After the Closing Date, Seller will continue to use commercially reasonable efforts to obtain all consents, waivers and approvals to permit the assignment to Buyer or Parent of each Required Consent Maintenance Agreement that remains unassigned to Parent or Buyer as of the Closing Date. (iii) In the event that Seller is able to obtain prior to December 31, 2003 the requisite consents, waivers and approvals under Required Consent Maintenance Agreements to permit the assignment to Buyer or Parent of such Required Consent Maintenance Agreements, then Seller shall be entitled to receive a collection fee from Parent calculated in accordance with the following formula: the product of (A) the product of (1) 0.05 and (2) the Total Required Consent Maintenance Fees as of the Closing Date and (B) the quotient of (1) the portion of the Total Required Consent Maintenance Fees that is attributable to Required Consent Maintenance Agreements that become Consented Maintenance Agreements on or prior to December 31, 2003 and (2) the Total Required Consent Maintenance Fees as of the Closing Date. By way of example, if (1) Total Required Consent Maintenance Fees as of the Closing Date equals $2.0 million and (2) the portion of the Total Required Consent Maintenance Fees that is attributable to Required Consent Maintenance Agreements that become Consented Maintenance Agreements on or prior to December 31, 2003 equals $1.5 million, then Parent would pay to Seller a collection fee of $75,000: (iv) In the event that Seller is unable to obtain the necessary consents, waivers and approvals to permit the assignment to Buyer or Parent of any Required Consent Maintenance Agreements, then Seller will not be permitted to renew the term of such Required Consent Maintenance Agreements prior to the expiration of such agreement; provided, however that the foregoing shall not prevent a Seller Customer from exercising any renewal right existing under a Required Consent Maintenance Agreement as of the Agreement Date, provided, further, that Seller shall discourage any Seller Customer from so exercising any such renewal right. (d) (i) Any Assigned Agreements that provide for payment of professional services fees by a Seller Customer to Seller are listed on Schedule 5.11(d) of the Seller Disclosure Letter, which schedule shall set forth with respect to each such Assigned Agreement: (A) the name of the Seller Customer; (B) the date of such agreement; (C) whether such agreement is listed on Schedule 3.2(c) of the Seller Disclosure Letter (each such agreement, a “Required Consent Services Agreement”) and (D) the estimate of the professional services fees that remain to be paid for work remaining to be performed under such agreement as set forth on the applicable statement of work. The total amount of professional services fees that remain to be paid under all of the Assigned Agreements listed on Schedule 5.11(d) of the Seller Disclosure Letter is herein referred to as the “Total Services Fees,” while the total amount of professional services fees that remain to be paid under all of the Required Consent Services Agreements is herein referred to as the “Total Required Consent Services Fees.” Schedule 5.11(d) shall be updated by Seller at least one Business Day prior to Closing.

Consents; Cooperation. (a) Each of Parent, Seller and Buyer and Seller shall, promptly after the Agreement Date, apply for or otherwise seekshall cooperate, and use its commercially reasonable best efforts efforts, to make all filings and obtain all licenses, permits, consents, approvals, authorizations, qualifications and orders of governmental authorities and other third parties necessary to consummate the transactions contemplated by this Agreement, including, without limitation, any approvals of the United States Department of Agriculture (“USDA”) regarding the transfer of the marketing allocations; provided, however, that, notwithstanding the foregoing, (i) the actions of Seller and Buyer with respect to filings, approvals and other matters pursuant to the HSR Act and any local, state, federal (other than the HSR Act) or foreign antitrust statute, antitrust law, antitrust regulation or antitrust rule applicable to Seller, the Company or Buyer (“Other Antitrust Regulations”) shall be governed by subsections (b), (c), (d) and (e) of this Section 4.3, (ii) Seller will obtain, or will cause the Company to obtain, all governmental licenses, permits, consents, waivers approvals, authorizations, qualifications and approvals orders required to be obtained by it for the consummation of the Asset Purchasetransactions contemplated by this Agreement listed on Exhibit E (the “Closing Condition Consents”); (iii) Seller will use its best efforts to obtain all consents and approvals required from its lenders in connection with the transactions contemplated by this Agreement, all of which consents and approvals are listed on Exhibit F (the “Seller Lender Approvals”) and (iv) Buyer will use its best efforts to obtain all consents and approvals required from its lenders in connection with the transactions contemplated by this Agreement, all of which consents and approvals are listed on Exhibit G (the “Buyer Lender Approvals”). Buyer agrees to provide such assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any third party whose consent or approval is sought under this Agreement and which Buyer is reasonably able to provide. (b) Seller and Buyer shall file with (i) the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”), the notification and report form required for the transactions contemplated by this Agreement and any supplemental information requested in connection with such notification and report form pursuant to the HSR Act and (ii) any other applicable governmental or regulatory entity, all filings, reports, information and documentation required for the consummation of the transactions contemplated by this Agreement pursuant to the Other Antitrust Regulations. Each of Seller and Buyer shall furnish to each other’s counsel such necessary information and reasonable assistance as the other party may request in connection with its preparation of any filing or submission that is necessary under the HSR Act and Other Antitrust Regulations. Each of Seller and Buyer shall consult with each other as to the appropriate time of making such filings and submissions and shall use commercially reasonable efforts to obtain prior to make such filings and submissions at the Closingagreed upon time. (c) Each of Seller and Buyer shall keep each other apprised of the status of any communications with, and deliver to Buyer at any inquiries or prior to requests for additional information from, the Closing, all consents, waivers FTC and approvals under each Assigned Agreement listed the DOJ and other governmental or described on Schedule 3.2(c) to the Seller Disclosure Letter; provided, however, that Seller regulatory entities and shall not be required to make any payment (other than (i) reimbursement of reasonable out-of-pocket expenses of any third party incurred in connection comply promptly with the review of such consent, approval or waiver request and (ii) refund of any prepaid fees triggered by such assignment or transfer pursuant to the terms of the Assigned Agreements, which Assigned Agreements are listed on Schedule 5.11(b)(1) to the Seller Disclosure Letter) or agree to any material undertakings in connection therewith. To the extent that Seller is unable to obtain such required consents, waivers and approvals, then Seller shall use commercially reasonable efforts, without breaching such Assigned Agreement, to enforce, for the account of Buyer, any rights of Seller arising from any such Assigned Agreement inquiry or request. (including the right to elect to terminate such Assigned Agreement in accordance with the terms thereof upon the advice of Buyer). d) Buyer agrees to cooperate with and Seller and supply relevant information to such party or parties or such third party in order to assist Seller in its obligations under this 5.11(b). Any Contracts of Seller to be terminated prior to Closing are listed or described on Schedule 5.11(b)(2) of the Seller Disclosure Lettershall, and Seller shall use its reasonable best efforts to terminate such Contracts prior to cause the Closing and deliver evidence of such termination to Buyer at or prior to the Closing. Any Contracts of Seller to be amended prior to Closing are listed or described on Schedule 5.11(b)(3) of the Seller Disclosure LetterCompany to, and Seller shall use its reasonable best efforts to amend such Contracts prior to the Closing and deliver evidence of such amendment to Buyer at or prior to the Closing, in the manner described on such exhibit with respect to each such Contract. (i) Any Assigned Agreements that provide for payment of maintenance or support fees by a Seller Customer to Seller are listed on Schedule 5.11(c) of the Seller Disclosure Letter, which schedule shall set forth with respect to each such Assigned Agreement: (A) the name of the Seller Customer; (B) the date of such agreement; (C) whether such agreement is listed on Schedule 3.2(c) of the Seller Disclosure Letter (each such agreement, a “Required Consent Maintenance Agreement”) and (D) the amount of unrecognized maintenance or support fees under such agreement. The total amount of maintenance or support fees that remain to be paid under all of the Assigned Agreements listed on Schedule 5.11(c) of the Seller Disclosure Letter is herein referred to as the “Total Maintenance Fees,” while the total amount of maintenance or support fees that remain to be paid under all of the Required Consent Maintenance Agreements is herein referred to as the “Total Required Consent Maintenance Fees.” Schedule 5.11(c) shall be updated by Seller at least one Business Day prior to Closing. (ii) Seller shall use commercially reasonable efforts to obtain an early termination of the applicable waiting period under the HSR Act and Other Antitrust Regulations; provided, that Buyer will not be required to dispose of, hold separately or make any change in, any portion of its business or assets (or the business or assets of the Company) or incur any other material burden. (e) With respect to any agreements for which any required consent or approval is not obtained prior to the Closing, and deliver Closing (other than a Closing Condition Consent which Seller shall obtain or cause to Buyer at or be obtained prior to the Closing, all consents, waivers and approvals under each Required Consent Maintenance Agreement to permit the assignment to Buyer or Parent of all such Required Consent Maintenance Agreements (each Required Consent Maintenance Agreement for which Seller obtains the requisite consents, waivers and approvals subsequent to the Closing Date, a “Consented Maintenance Agreement”). In the event that Seller is unable to secure such necessary consents, waivers and approvals as of the Closing Date, then with respect to each such unassigned Required Consent Maintenance Agreement, Seller and Buyer will (A) subcontract to Parent the right to provide all maintenance and support under such unassigned Required Consent Maintenance Agreement and (B) promptly remit to Parent all payments received by Seller from all such Seller Customers for maintenance or support fees. After the Closing Date, Seller will continue to each use its commercially reasonable efforts to obtain all consents, waivers and approvals to permit the assignment to Buyer any such consent or Parent of each Required Consent Maintenance Agreement that remains unassigned to Parent or Buyer as of the Closing Date. (iii) In the event that Seller is able to obtain prior to December 31, 2003 the requisite consents, waivers and approvals under Required Consent Maintenance Agreements to permit the assignment to Buyer or Parent of such Required Consent Maintenance Agreements, then Seller shall be entitled to receive a collection fee from Parent calculated in accordance with the following formula: the product of (A) the product of (1) 0.05 and (2) the Total Required Consent Maintenance Fees as of approval after the Closing Date until such consent or approval has been obtained and (B) Seller will provide Buyer or the quotient of (1) Company with the portion of the Total Required Consent Maintenance Fees that is attributable to Required Consent Maintenance Agreements that become Consented Maintenance Agreements on or prior to December 31same benefits arising under such agreements, 2003 and (2) the Total Required Consent Maintenance Fees including performance by Seller as of the Closing Date. By way of exampleagent, if (1) Total Required Consent Maintenance Fees legally and commercially feasible, provided that Buyer will provide or cause the Company to provide Seller with such access to the premises, books and records and personnel as is necessary to enable Seller to perform its obligations under such agreements and Buyer and the Company shall pay or satisfy the corresponding liabilities for the enjoyment of such benefits to the Closing Date equals $2.0 million and (2) the portion of the Total Required Consent Maintenance Fees that is attributable to Required Consent Maintenance Agreements that become Consented Maintenance Agreements on or prior to December 31, 2003 equals $1.5 million, then Parent would pay to Seller a collection fee of $75,000: (iv) In the event that Seller is unable to obtain the necessary consents, waivers and approvals to permit the assignment to extent Buyer or Parent of any Required Consent Maintenance Agreements, then Seller will not be permitted to renew the term of Company would have been responsible therefor if such Required Consent Maintenance Agreements prior to the expiration of such agreement; provided, however that the foregoing shall not prevent a Seller Customer from exercising any renewal right existing under a Required Consent Maintenance Agreement as of the Agreement Date, provided, further, that Seller shall discourage any Seller Customer from so exercising any such renewal rightconsent or approval had been obtained. (d) (i) Any Assigned Agreements that provide for payment of professional services fees by a Seller Customer to Seller are listed on Schedule 5.11(d) of the Seller Disclosure Letter, which schedule shall set forth with respect to each such Assigned Agreement: (A) the name of the Seller Customer; (B) the date of such agreement; (C) whether such agreement is listed on Schedule 3.2(c) of the Seller Disclosure Letter (each such agreement, a “Required Consent Services Agreement”) and (D) the estimate of the professional services fees that remain to be paid for work remaining to be performed under such agreement as set forth on the applicable statement of work. The total amount of professional services fees that remain to be paid under all of the Assigned Agreements listed on Schedule 5.11(d) of the Seller Disclosure Letter is herein referred to as the “Total Services Fees,” while the total amount of professional services fees that remain to be paid under all of the Required Consent Services Agreements is herein referred to as the “Total Required Consent Services Fees.” Schedule 5.11(d) shall be updated by Seller at least one Business Day prior to Closing.

Consents; Cooperation. (a) Each of ParentAs soon as practicable, Buyer and Seller shall, promptly but no later than ten (10) business days after the Agreement Date, apply for or otherwise seek, date hereof and use its reasonable best efforts to obtain, all governmental consents, waivers and approvals required to be obtained by it for the consummation of the Asset Purchase. at least twenty (b20) Seller shall use commercially reasonable efforts to obtain days prior to the ClosingClosing Date, and deliver to Buyer at Transferor shall mail by registered or prior to the Closing, all consents, waivers and approvals under each Assigned Agreement listed or described on Schedule 3.2(ccertified mail (return receipt requested) to the Seller Disclosure named holder of each Account a letter substantially in the form attached hereto as EXHIBIT A with such additional marketing-related changes as the parties may mutually agree upon (the "Notification Letter; provided, however, that Seller ") describing the proposed Account transfer from Transferor to Transferee and seeking its consent to such transfer. The Notification Letters shall not be required to make any payment (other than (i) reimbursement of reasonable out-of-pocket expenses of any third party incurred in connection with the review of such consent, approval or waiver request prepared and (ii) refund of any prepaid fees triggered by such assignment or transfer pursuant mailed to the terms named holder of the Assigned Agreements, which Assigned Agreements are listed on Schedule 5.11(b)(1) to the Seller Disclosure Letter) or agree to any material undertakings in connection therewith. To the extent that Seller is unable to obtain such required consents, waivers and approvals, then Seller shall use commercially reasonable efforts, without breaching such Assigned Agreement, to enforce, for the account of Buyer, any rights of Seller arising from any such Assigned Agreement (including the right to elect to terminate such Assigned Agreement in accordance with the terms thereof upon the advice of Buyer). Buyer agrees to cooperate with Seller and supply relevant information to such party or parties or such third party in order to assist Seller in its obligations under this 5.11(b). Any Contracts of Seller to be terminated prior to Closing are listed or described on Schedule 5.11(b)(2) of the Seller Disclosure Lettereach Account at Transferor's sole expense, and Seller Transferor shall use its reasonable best efforts to terminate such Contracts prior obtain the consent to the transfer of all Accounts. Transferor shall maintain a list of the names of each account holder receiving the Notification Letter, with indications as to the date the Option Letter was sent and copies of the responses received, if any, including the date of receipt of a response. Transferor shall transfer at the time of Closing all Accounts Agreements and deliver evidence Account information of account holders who have not objected to such termination to Buyer transfer or requested otherwise. Transferor shall provide Transferee at or prior to the Closing. Any Contracts Closing copies of Seller all written objections or directions from each account holder who decides not to transfer its Account to Transferee. (b) Each of Transferee and Transferor will, and will cause their respective subsidiaries, and affiliated or unaffiliated third parties who perform clearance, settlement and custodial services for the Transferee and Transferor, including Transferor's clearing agent, U.S. Clearing, to take all reasonable actions necessary to comply promptly with all legal and contractual requirements which may be imposed on them with respect to the consummation of the transactions contemplated by this Agreement and will promptly cooperate with and furnish information to any party hereto necessary in connection with any such requirements imposed upon such other party in connection with the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement and will take all reasonable actions necessary to obtain (and will cooperate with the other parties hereto in obtaining) any consent, approval, order or authorization of, or any registration, declaration of filing with, any Governmental Entity or other person, required to be amended prior obtained or made in connection with the taking of any action contemplated by this Agreement or any Ancillary Agreement (including without limitation, any consents to Closing are listed assignment or described on Schedule 5.11(b)(3) novation of Contracts). Transferee and Transferor shall have the right to review in advance, and to the extent practicable each will consult the other as to, in each case subject to applicable laws relating to the exchange of information, all of the Seller Disclosure Letterinformation which will appear in any filing made with, or written materials submitted to, any third party or Governmental Entity in connection with the transactions contemplated by this Agreement. In the event an injunction or other order shall have been issued which prevents, alters or delays the Closing or any other transaction contemplated hereby, each party agrees to use its reasonable best efforts to have such injunction or other order lifted. (c) Transferee and Transferor and their respective subsidiaries shall cooperate and use their respective reasonable best efforts to prepare all documentation, to effect all filings and to obtain all permits, consents, approvals and authorizations of all third parties and Governmental Entities necessary to consummate the transactions contemplated by this Agreement or any Ancillary Agreement, and Seller to consult with the other party with respect to obtaining such permits, consents, approvals and authorizations. Each of Transferee and Transferor agrees, upon request, to furnish the other party with all information concerning itself, its subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with any filing, notice or application made by or on behalf of such other party or any of its subsidiaries to any third party or Governmental Entity. (d) As soon as practicable, but no later than ten (10) business days after the date hereof, Transferee shall file with the Securities and Exchange Commission ("SEC") a letter substantially in the form attached hereto at EXHIBIT B (the "Omnibus Account Letter") describing the proposed transfer and applying pursuant to SEC Rule 15c3-3(c)(7) for the allowance of an omnibus account established by Transferee with U.S. Clearing to be designated as a control location adequate for the protection of customer securities for the purposes of SEC Rule 15c3-3. Transferor shall cooperate, and shall use its reasonable best efforts to amend such Contracts prior cause U.S. Clearing, to the Closing and deliver evidence of such amendment to Buyer at or prior to the Closing, assist in the manner described on such exhibit process of transferring the Acquired Assets. (e) The Parties recognize that the transfer of Accounts to Transferee as contemplated hereby cannot be effected without the express or implied consent of the account holder. To the extent that any required consent with respect to each such Contract. (i) Any Assigned Agreements that provide for payment of maintenance or support fees by a Seller Customer to Seller are listed an Acquired Asset has not been obtained on Schedule 5.11(c) of the Seller Disclosure Letter, which schedule shall set forth with respect to each such Assigned Agreement: (A) the name of the Seller Customer; (B) the date of such agreement; (C) whether such agreement is listed on Schedule 3.2(c) of the Seller Disclosure Letter (each such agreement, a “Required Consent Maintenance Agreement”) and (D) the amount of unrecognized maintenance or support fees under such agreement. The total amount of maintenance or support fees that remain to be paid under all of the Assigned Agreements listed on Schedule 5.11(c) of the Seller Disclosure Letter is herein referred to as the “Total Maintenance Fees,” while the total amount of maintenance or support fees that remain to be paid under all of the Required Consent Maintenance Agreements is herein referred to as the “Total Required Consent Maintenance Fees.” Schedule 5.11(c) shall be updated by Seller at least one Business Day prior to Closing. (ii) Seller shall use commercially reasonable efforts to obtain prior to the Closing, and deliver to Buyer at or prior to the Closing, all consents, waivers and approvals under each Required Consent Maintenance Agreement to permit the assignment to Buyer or Parent of all such Required Consent Maintenance Agreements (each Required Consent Maintenance Agreement for which Seller obtains the requisite consents, waivers and approvals subsequent to the Closing Date, such Acquired Asset shall not be transferred as an Acquired Asset hereunder, and any related liability that would, but for the absence of such required consent, constitute an Attached Liability shall not be assumed by Transferee as an Attached Liability hereunder, unless and until such required consent has been obtained. (f) At Closing, Transferor shall deliver to Transferee a “Consented Maintenance Agreement”)stock record ("Stock Record") showing the total number of shares of each account holder held in the Accounts and the number of shares of each account holder held in each Account related to such account holder (exclusive of any securities owned by a customer who objected to the transfer) which Stock Record to its knowledge will be correct as of the Closing. Transferor also shall deliver or cause to be delivered to Transferee for safekeeping the fully paid securities set forth on the Stock Record. Transferor represents and warrants that (i) to its knowledge its clearing firm will be in compliance with Exchange Act Rule 15(c)3-3 as of the Closing and (ii) that, to its knowledge, if Transferee relies on the Stock Record for purposes of compliance with Exchange Act Rule 17a-3(a)(5) and otherwise complies with all the other provisions of said Rule, it will be in compliance with Rule 17a-3(a)(5) as of the Closing. In the event a question arises after the Closing as to the accuracy of any of the amounts of securities set forth on the Stock Record, the parties agree to work together to resolve such question. In the event that Seller is unable the parties cannot resolve any question which involves an allegedly short position within 48 hours of discovery, Transferor will deliver, or cause to secure be delivered to Transferee within four (4) business days sufficient securities to cover any such necessary consentsshort position. (g) After the date of this Agreement and through the Closing, waivers Transferor shall deliver to Transferee on each Wednesday a transition report relating to the conversion of Accounts from Transferor to Transferee, the contents of which shall be reasonably agreed on by the parties. (h) Transferor shall execute all transactions in Accounts up to and approvals as of including the Closing Datedate. Thereafter, then with respect all orders for transferred Accounts shall be executed by Transferee. Transferor shall have no claim to each such unassigned Required Consent Maintenance Agreement, Seller will (A) subcontract to Parent the right to provide all maintenance and support under such unassigned Required Consent Maintenance Agreement and (B) promptly remit to Parent all payments received by Seller from all such Seller Customers commissions on outstanding limit orders or trades for maintenance or support fees. After the Closing Date, Seller will continue to use commercially reasonable efforts to obtain all consents, waivers and approvals to permit the assignment to Buyer or Parent of each Required Consent Maintenance Agreement that remains unassigned to Parent or Buyer as of transferred Accounts executed after the Closing Date. (iiii) In With respect to margin Accounts, upon the event that Seller is able to obtain prior to December 31, 2003 the requisite consents, waivers and approvals under Required Consent Maintenance Agreements to permit the assignment to Buyer or Parent of such Required Consent Maintenance Agreements, then Seller shall be entitled to receive a collection fee from Parent calculated in accordance with the following formula: the product of (A) the product of (1) 0.05 and (2) the Total Required Consent Maintenance Fees as transfer of the Closing Date and (B) Accounts, the quotient of (1) the portion of the Total Required Consent Maintenance Fees that is attributable to Required Consent Maintenance Agreements that become Consented Maintenance Agreements on or prior to December 31, 2003 and (2) the Total Required Consent Maintenance Fees as of the Closing Date. By way of example, if (1) Total Required Consent Maintenance Fees as of the Closing Date equals $2.0 million and (2) the portion of the Total Required Consent Maintenance Fees that is attributable to Required Consent Maintenance Agreements that become Consented Maintenance Agreements on or prior to December 31, 2003 equals $1.5 million, then Parent would Transferee shall pay to Seller a collection fee of $75,000: (iv) In U.S. Clearing an amount equal to the event that Seller is unable to obtain the necessary consents, waivers and approvals to permit the assignment to Buyer or Parent then aggregate balance of any Required Consent Maintenance AgreementsMargin Loans in the margin Accounts and shall establish an equivalent margin loan in the margin accounts it has established for its customers. Transferee reserves the right to reject any margin Account if any related Margin Loan is under margined or otherwise under collateralized pursuant to applicable provisions of Federal Reserve Board Regulation T, NASD rules or margin lending policies and procedures of Transferee then Seller will not be permitted in effect and applied generally to renew the term of such Required Consent Maintenance Agreements prior to the expiration of such agreement; provided, however that the foregoing shall not prevent a Seller Customer from exercising any renewal right existing under a Required Consent Maintenance Agreement as of the Agreement Date, provided, further, that Seller shall discourage any Seller Customer from so exercising any such renewal rightits accounts. (dj) Within forty five (i45) Any Assigned Agreements that days after the execution of this Agreement, Transferor will provide for payment to Transferee an updated Schedule C, containing such fields of professional services fees by a Seller Customer to Seller are listed on Schedule 5.11(d) of the Seller Disclosure Letter, which schedule shall set forth information with respect to each such Assigned Agreement: (A) the name of the Seller Customer; (B) the date of such agreement; (C) whether such agreement is listed Transferor's retail brokerage accounts as Transferee shall reasonably request, including, if requested, cross-references to Contracts described on Schedule 3.2(c) A that are for each Account. At Closing, Transferor shall deliver to Transferee an updated Schedule C containing such fields of information with respect to the Seller Disclosure Letter (Accounts as Transferee shall reasonably request, including, if requested, cross-references to the Contracts described in Schedule A that are applicable to each such agreement, a “Required Consent Services Agreement”) and (D) the estimate of the professional services fees that remain to be paid for work remaining to be performed under such agreement as set forth on the applicable statement of work. The total amount of professional services fees that remain to be paid under all of the Assigned Agreements listed on Schedule 5.11(d) of the Seller Disclosure Letter is herein referred to as the “Total Services Fees,” while the total amount of professional services fees that remain to be paid under all of the Required Consent Services Agreements is herein referred to as the “Total Required Consent Services FeesAccount.” Schedule 5.11(d) shall be updated by Seller at least one Business Day prior to Closing.