Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement. (b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any consent is not obtained prior to Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement under which the Buyers would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangements.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Endo, Inc.), Purchase and Sale Agreement (Endo International PLC)
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, contract, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent or waiver, or the taking of a similar action, of a third party, would constitute a breach or other contravention under any agreement or Law to which any the Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers Seller or, upon transfer, the Buyers Buyer under such asset, contract, permit, claim or right, unless . The Seller shall use its commercially reasonable efforts to obtain any consents or waivers required to assign to the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of Buyer any Transferred Assets that require the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations such transfer or changes or modifications of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreementterms thereunder.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any such consent or waiver is not obtained prior to Closing and as a result thereof the Buyers Buyer shall be prevented by a such third party from receiving the rights and benefits with respect to a such Transferred Asset intended to be transferred hereunder, (ii) or if any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that Seller or the Buyers would not in fact receive all Buyer thereunder, then (i) for a period of 12 months following the rights Closing, the Seller shall use its commercially reasonable efforts to obtain any such required consent(s) or waiver(s), or to take such actions, as applicable, as promptly as reasonably possible, and benefits contemplated or (iiiii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order Seller and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, Buyer shall cooperate with the Buyers in any lawful and commercially reasonable arrangement arrangement, as the Seller and the Buyer shall agree, under which the Buyers Buyer would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer; provided, that all reasonable out-of-pocket expenses of such cooperation and related actions shall be paid by the Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers The Seller shall promptly pay to the Buyers Buyer when received all monies received by the applicable Sellers Seller under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers Buyer shall indemnify, defend, hold harmless indemnify and promptly pay the Sellers Seller for all Liabilities of the Sellers Seller associated with such arrangement Transferred Asset. The Seller shall not be required to expend any material amounts or pay any consent or similar fees in accordance connection with the terms and conditions of such arrangementsits efforts hereunder.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Grifols SA), Asset Purchase Agreement (Hologic Inc)
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent or waiver of a third party, would constitute a breach or other contravention under any agreement or Law to which any the Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers Seller or, upon transfer, the Buyers Buyer under such asset, permit, claim or rightright unless and until such consent or waiver shall be given. The Seller shall use its commercially reasonable efforts (which, unless for clarity, except as provided in the applicable provisions of next sentence, shall not require any payments or separate consideration from the Bankruptcy Code permits and/or Seller to any third party), in consultation with the Confirmation Order authorizes Buyer, and the assumption and assignment of such assetBuyer shall cooperate reasonably with the Seller (including by complying with Section 5.9), permit, claim, to obtain any consents or right irrespective of waivers required to assign to the Buyer any Transferred Asset that requires the consent or lack thereof waiver of a third party, without any conditions to such transfer or changes or modifications of terms thereunder. If, with With respect to any Transferred Assetconsent or waiver of a third party required to assign a Contract listed on Schedule 2.7(b), such consent is not obtained the Seller shall be obligated to pay, or such assignment is not attainable cause to be paid, all amounts, including any fees and expenses that the third party incurs and requires reimbursement, that may be expressly required pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not Contracts to be transferred hereunder, and, without prejudice paid to any of the conditions to the obligations of the Buyers as set forth third party in Section 7.3 hereof, the Closing shall proceed connection with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreementsuch consents.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any such consent or waiver is not obtained prior to Closing and as a result thereof the Buyers Buyer shall be prevented by a such third party from receiving the rights and benefits with respect to a such Transferred Asset intended to be transferred hereunder, (ii) or if any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers Seller thereunder so that the Buyers Buyer would not in fact receive all such rights or the Seller would forfeit or otherwise lose the benefit of rights and benefits contemplated or (iii) any Transferred Asset that the Seller is not otherwise capable of sale and/or assignment (after giving effect entitled to retain following the Confirmation Order Closing, the Seller and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, Buyer shall cooperate with the Buyers in any lawful and commercially reasonable arrangement arrangement, as the Seller and the Buyer shall agree, under which the Buyers Buyer would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer; provided, that (i) all reasonable out-of-pocket expenses of such cooperation and related actions shall be paid by the Buyer, and (ii) nothing herein shall limit the condition to the Buyer’s obligations to consummate the Transactions set forth in Section 7.3. Without limiting the foregoing, during the Wind-Down Period, the Sellers The Seller shall promptly pay to the Buyers Buyer when received all monies received by the applicable Sellers Seller under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers Buyer shall indemnify, defend, hold harmless indemnify and promptly pay the Sellers Seller for all Liabilities liabilities of the Sellers Seller associated with such arrangement in accordance with the terms and conditions of such arrangementsTransferred Asset.
Appears in 2 contracts
Samples: Asset Purchase Agreement (New Media Investment Group Inc.), Asset Purchase Agreement (A. H. Belo Corp)
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers Buyer under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Sale Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Sale Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers Buyer as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred AssetsAssets and the Sellers and the Buyer shall each use their commercially reasonable efforts, and subject to Section 5.17, the Buyer shall cooperate with the Sellers, to obtain any such consent and to resolve the impracticalities of assignment after the Closing; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers Buyer or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to obtain consent to the transfer of any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Sale Order and the commercially reasonable best efforts of the Sellers and the BuyersBuyer, any consent is not obtained prior to Closing and as a result thereof the Buyers Buyer shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers Buyer would not in fact receive all the rights and benefits contemplated or contemplated, (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Sale Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the BuyersBuyer, cooperate with the Buyers Buyer in any lawful and commercially reasonable arrangement under which the Buyers Buyer would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers Seller Parent shall promptly pay to the Buyers Buyer when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers Buyer shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangementsarrangement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Pernix Therapeutics Holdings, Inc.), Asset Purchase Agreement (Pernix Therapeutics Holdings, Inc.)
Consents to Certain Assignments. (a) Notwithstanding anything to the contrary contained in this Agreement or any Ancillary Agreement to the contraryAgreement, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer sell, transfer, assign or assign deliver, directly or indirectly, any assetPurchased Asset, permit, claim or right or any benefit arising thereunder or resulting therefrom thereunder, if an attempted direct or indirect sale, transfer, assignment or delivery thereof, without the consent of or notice to a third party (including a Governmental Authority), would constitute a breach, default, violation or other contravention of the rights of such third party, would constitute be ineffective with respect to any party to a breach Contract concerning such Purchased Asset or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or would in any way adversely affect the rights of the Sellers Seller or any of its Affiliates or, upon transfer, Buyer. Buyer agrees that neither Seller nor any of its Affiliates shall have any liability whatsoever to Buyer arising out of or relating to the Buyers under failure to obtain any such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof give any such notice, except for liability under this Agreement to the extent the requirement to obtain any such consent constitutes a breach of any representation, warranty or covenant of Seller or is a third party. If, with respect condition to Closing herein.
(b) If any Transferred Asset, such consent is not obtained or such assignment notice is not attainable pursuant given prior to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereofClosing, the Closing shall proceed with respect nonetheless take place subject to and on the terms set forth herein and, thereafter, through the earlier of the time as such consent is obtained or notice is given or eighteen (18) months following the Closing (or, if the Purchased Asset is a Contract, the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 term of the Bankruptcy Code and the Confirmation Order and the Contract, if shorter), Buyer shall use its commercially reasonable efforts of to secure such consent or give such notice as promptly as practicable after the Sellers and the Buyers, any consent is not obtained prior to Closing and as a result thereof the Buyers Seller shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended provide or cause to be transferred hereunderprovided reasonable assistance to Buyer (not including the paying of any consideration) reasonably requested by Buyer to secure such consent or give such notice, or cooperate in good faith with Buyer (ii) with each Party being responsible for its own out-of-pocket expenses, but without requiring the payment of any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject amounts by Seller to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers party in order to obtain such party’s consent and without any further consideration paid by Buyer to Seller) in any lawful and commercially reasonable arrangement reasonably proposed by Buyer under which (i) Buyer shall obtain (without infringing upon the Buyers would, to the extent practicable, obtain legal rights of such third party or violating any Law) the economic claims, and other rights and benefits under such asset and assume the economic burdens and obligations Purchased Asset with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing to which the consent has not been obtained and (ii) Buyer shall assume any related economic or subleasing other obligations (to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay extent such obligations are Assumed Liabilities) and risk of assumption with respect to such Purchased Asset (to the Buyers when received all monies received by extent that the applicable Sellers under requirement to obtain any such Transferred Asset consent does not constitute a breach of any representation or any claim warranty of Seller). Following the Closing, until such consent is obtained or right or any benefit arising thereunder such notice is given, Buyer will, and the Buyers shall indemnifywill cause each of its Affiliates to, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance comply with the terms of any Contract (to the extent an Assumed Liability) constituting a Purchased Asset that has not yet been transferred or assigned due to the failure to receive such consent as if such Contract had been so transferred or assigned. Seller shall (x) act in good faith with respect to efforts to obtain consent or give notice under any such Contract and conditions (y) provide copies of all written correspondence, notices and any other document received by or sent to any third party with respect to obtaining consent or giving notice under such arrangementsContract and provide reasonable information about any other material third party communications relating to obtaining consent or giving notice under such Contract.
Appears in 2 contracts
Samples: Asset Purchase Agreement (OncBioMune Pharmaceuticals, Inc), Asset Purchase Agreement (Neogenomics Inc)
Consents to Certain Assignments. (a) Notwithstanding anything to the contrary in this Agreement or any Ancillary Agreement to the contraryAgreement, this Agreement and the Ancillary Agreements shall not constitute an agreement to sell, transfer or assign assign, directly or indirectly, any assetPurchased Asset, permit, claim or right or any benefit arising thereunder thereunder, if the direct or resulting therefrom if an attempted indirect sale, transfer or assignment thereof, without the consent Consent of a third party (including a Governmental Authority), would constitute a breach, default, violation or other contravention of the rights of such third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, be ineffective with respect to any Transferred Asset, party to an Assumed Contract or a Contract concerning such consent is not obtained Purchased Asset or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any consent is not obtained prior to Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder applicable Seller or, upon transfer, Buyer, under such Purchased Asset. Notwithstanding anything in the preceding sentence to the contrary, any such asset that would otherwise constitute part of the Purchased Assets shall be held and/or received by the applicable Seller for the benefit of Buyer so that Buyer will be in substantially the Buyers would not in fact receive all same position as if such Purchased Asset had been transferred to Buyer at the rights and benefits contemplated or Closing.
(iiib) If any Transferred Asset such Consent is not otherwise capable of sale and/or assignment (after giving effect obtained prior to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shallClosing, subject to any approval satisfaction of the Bankruptcy Court that may conditions to Closing set forth in Section 8, the Closing shall nonetheless take place on the terms set forth herein and, thereafter, the applicable Seller shall use its commercially reasonable best efforts to secure such Consent as promptly as practicable after the Closing, and such Seller shall provide or cause to be requiredprovided all commercially reasonable assistance to Buyer (not including the giving of any consideration) reasonably requested by Buyer to secure such consent, at the written request of the Buyers, or cooperate with the Buyers Buyer (at such Seller's expense) in any lawful and commercially reasonable arrangement proposed by Buyer under which (i) Buyer shall obtain (without infringing upon the Buyers would, to the extent practicable, obtain legal rights of such third party or violating any law) the economic claims, rights and benefits under such asset and assume the economic burdens and obligations Purchased Asset with respect thereto in accordance to which the Consent has not been obtained and (ii) Buyer shall assume any related economic burden with this Agreement, including by subcontracting, sublicensing or subleasing respect to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangementsPurchased Asset.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Hc2 Holdings, Inc.), Asset Purchase Agreement (Hc2 Holdings, Inc.)
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer assign, directly or assign indirectly, any asset, permit, asset or any claim or right or any benefit arising thereunder under or resulting therefrom from such asset if an attempted direct or indirect assignment thereof, without the consent of a third partyparty or Governmental Approval, would constitute a breach breach, default, violation or other contravention under any agreement or Law to which any Seller is a of the rights of such third party or by which it is boundGovernmental Entity or of applicable Law, would be ineffective with respect to any party to an agreement concerning such asset, claim or right, or would in any way adversely affect the rights of Seller or any other member of the Sellers Seller Group or, upon transfer, Purchaser or the Buyers Transferred Entity under such asset, permitclaim or right. If any direct or indirect transfer or assignment by Seller to Purchaser, or any direct or indirect acquisition or assumption by Purchaser of, any interest in, or liability, obligation or commitment under, any asset, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of requires the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained party or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation OrderGovernmental Approval, then such Transferred Asset transfer or assignment or assumption shall not be transferred hereunder, and, without prejudice made subject to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement such consent or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary AgreementGovernmental Approval being obtained.
(b) If (iany third party consent or Governmental Approval referred to in Section 1.03(a) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any consent is not obtained prior to the Closing, the Closing shall, subject to the satisfaction of the conditions set forth in Article VII and as a result thereof unless this Agreement is terminated in accordance with Article VIII, nonetheless take place on the Buyers terms set forth herein and, thereafter, Purchaser and Seller shall be prevented cooperate in any lawful and commercially reasonable arrangement proposed by a Purchaser under which (i) Purchaser shall obtain (without infringing upon the legal rights of such third party from receiving or Governmental Entity or violating any applicable Law) the economic claims, rights and benefits under the asset, claim or right with respect to which the third party consent or Governmental Approval has not been obtained in accordance with this Agreement and (ii) Purchaser shall assume the economic burden with respect to the asset, claim or right with respect to which the third party consent or Governmental Approval has not been obtained in accordance with this Agreement.
(c) If and when any such third party consent or Governmental Approval referred to in Section 1.03(a) is obtained after the Closing, the assignment of the asset, claim or right to which such third party consent or Governmental Approval relates shall be promptly effected in accordance with the terms of this Agreement without the payment of additional consideration. Seller and Purchaser shall, and shall cause their respective subsidiaries to, use commercially reasonable efforts to obtain such third party consents and/or Governmental Approvals as promptly as practicable. Seller and Purchaser shall share equally any and all third-party fees and out-of-pocket expenses (including attorneys’ fees) that may be reasonably required in connection with obtaining, whether before or after the Closing, any third party consents (other than Governmental Approvals) referred to in Section 1.03(a). Seller shall be responsible for any and all fees and out-of-pocket expenses that may be reasonably required in connection with (i) obtaining, whether before or after the Closing, any Governmental Approval referred to in Section 1.03(a) (other than (x) the filing fees required under the HSR Act and the other applicable Review Laws, which are the subject of Section 6.07(a), (y) Transfer Taxes, which are the subject of Section 9.01(c) and (z) any fees and out-of-pocket expenses incurred in connection with obtaining any Governmental Approvals required to implement the site separation at the Pine Hill Facility, which are the subject of Section 6.09(c)) and (ii) making any arrangements referred to in Section 1.03(b). The parties shall cooperate in minimizing all such fees and expenses. On the Closing Date, Seller shall deliver to Purchaser a schedule setting forth all material assets, claims or rights the transfer or assignment of which by Seller or the acquisition or assumption of which by Purchaser is subject to any third party consent or Governmental Approval.
(d) Subject to Section 1.03(a), if after the Closing (i) Purchaser or any of its subsidiaries holds any Excluded Assets or Retained Liabilities or (ii) Seller or any of its subsidiaries holds any Transferred Asset intended Assets, Transferred Equity Interests or Assumed Liabilities, Purchaser or Seller, as applicable, shall promptly transfer (or cause to be transferred hereundertransferred) such assets or Liabilities to the other party. Prior to any such transfer, the Person receiving or possessing any such asset shall hold it in trust for such other Person.
(e) With respect to (i) any Transferred Contract under which the Seller Business has enjoyed any material claims, rights or benefits prior to the Closing and (ii) any attempted assignment of a Contract, other than Transferred Asset would adversely affect Contracts, under which the Business has enjoyed any material claims, rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and or benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect prior to the Confirmation Order Closing, Purchaser and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, Seller shall cooperate with the Buyers in any lawful and commercially reasonable arrangement under which the Buyers wouldSeller Business or the Business, as applicable, shall continue to enjoy its material claims, rights or benefits under the applicable Contract after the Closing, subject to the burdens of such Contract to the extent practicableattributable to the Seller Business or the Business, as applicable.
(f) Notwithstanding Section 1.03(e), with respect to any Contract (other than a Transferred Contract) to which Seller or any other member of the Seller Group is a party and that constitutes a supply contract under which the Business purchases sulfuric acid or caustic soda prior to the Closing (a “Specified Supply Contract”), Seller shall use commercially reasonable efforts to obtain as promptly as practicable all third party consents and Governmental Approvals required to divide such Specified Supply Contract between the Business and the Seller Business such that the Business, after the Closing, will be able to continue to purchase the relevant products under such Specified Supply Contract on substantially the same terms and conditions as are applicable to the Business immediately prior to the Closing. In the event any third party consent or Governmental Approval referred to in the preceding sentence of this Section 1.03(f) is not obtained prior to the Closing, the Closing shall, subject to the satisfaction of the conditions set forth in Article VII and unless this Agreement is terminated in accordance with Article VIII, nonetheless take place on the terms set forth herein and, thereafter, Purchaser shall continue to seek such consents or Governmental Approvals or, at Purchaser’s election, Purchaser and Seller shall cooperate in any lawful and commercially reasonable arrangement proposed by Purchaser under which (i) Purchaser shall obtain (without infringing upon the legal rights of such third party or Governmental Entity or violating any applicable Law) the economic claims, rights and benefits under such asset under, and (ii) Purchaser shall assume the economic burdens and obligations burden with respect thereto to such Contract. Notwithstanding anything to the contrary in accordance with this Agreement, Seller shall be responsible for any and all fees and out-of-pocket expenses (including by subcontractingattorneys’ fees) that may be reasonably required in connection with obtaining any third party consent or Governmental Approval, sublicensing or subleasing making any arrangement, referred to in this Section 1.03(f). The parties shall cooperate in minimizing all such fees and expenses.
(g) During the applicable Buyerten-Business Day period commencing on the date hereof (the “Inspection Period”), Seller shall ensure that a true and complete copy of each Confidential Contract has been made available to Purchaser. Without limiting the foregoing, By written notice given to Seller during the Windten-Down Business Day period commencing on the Business Day following the last Business Day of the Inspection Period, Purchaser may reject and cause Seller to retain after the Sellers shall promptly pay Closing any Confidential Contract (other than any Confidential Contract that is a customer Contract or that is not required to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities be set forth in Section 1.02(a)(viii) of the Sellers associated with such arrangement in accordance with the Seller Disclosure Letter) that, if not rejected by Purchaser pursuant to this Section 1.03(g), would constitute a Transferred Contract, and that contains terms and conditions that, taken as a whole, are not commercially reasonable, judged at the time of execution of such arrangementsContract (any such Contract, a “Rejected Contract”). As used in this Section 1.03(g), a “Confidential Contract” means any Contract identified on the Seller Disclosure Letter with a “(confidential)” notation.
Appears in 2 contracts
Samples: Purchase Agreement (International Paper Co /New/), Purchase Agreement (Weyerhaeuser Co)
Consents to Certain Assignments. (ai) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements Section 5.14(a) shall not constitute an agreement to assign or otherwise transfer, directly or indirectly, any Contributed Asset (including any Contributed Asset that is a Contract) if such assignment or transfer would (A) constitute a breach, default, or assign violation of, or otherwise contravene, (1) the rights of any asset, permit, claim third party with respect to any assignment or right transfer provisions of any Contract in respect of such Contributed Asset or any benefit arising thereunder (2) Applicable Law or resulting therefrom if an attempted assignment thereof, without (B) require the consent of a third party, would constitute a breach any Governmental Authority. If any direct or other contravention under any agreement indirect transfer or Law assignment pursuant to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of Section 5.14(a) requires the consent or lack thereof approval of a third party. party or Governmental Authority, then such transfer or assignment shall be required to be made only subject to such consent or approval being obtained.
(ii) If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Contributed Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required a Contract) any third party or Governmental Authority consent or approval referred to in the applicable contract or permit or in the Chapter 11 PlanSection 5.14(b)(i) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any consent is not obtained prior to Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down PeriodClosing, the Sellers Closing shall, subject to any approval the satisfaction of the Bankruptcy Court that may be requiredconditions set forth in Article VI and unless this Agreement is terminated in accordance with Article VII, at nonetheless take place on the written request terms set forth herein and, thereafter, (A) Buyer, Parent, Seller and their respective Affiliates shall, subject to the provisions of the BuyersSection 5.14(b)(iv), cooperate with the Buyers in any lawful and commercially reasonable arrangement proposed by Buyer and agreed to by Seller (which agreement will not be unreasonably withheld, conditioned or delayed) under which, until the earlier of the date on which the Buyers wouldapplicable consent or approval is obtained pursuant to Section 5.14(b)(ii)(B) and the Applicable Date, to (1) Buyer shall obtain (without infringing upon the extent practicable, obtain legal rights of such third party or violating Applicable Law) the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto to the Contributed Asset with respect to which the third party or Governmental Authority consent or approval has not been obtained in accordance with this AgreementAgreement and (2) Buyer shall assume the economic burden with respect to such Contributed Asset, including by subcontractingand (B) until the Applicable Date, sublicensing Buyer, Seller and their respective Affiliates shall use their respective commercially reasonable efforts to obtain the applicable third party or subleasing Governmental Authority consent or approval until the Applicable Date.
(iii) If a third party to a Contract to which Section 5.14(b)(i) applies does not consent to the applicable Buyer. Without limiting assignment or other transfer of such Contract prior to the foregoing, during the Wind-Down PeriodClosing, the Sellers shall promptly pay Closing shall, subject to the Buyers when received all monies received satisfaction of the conditions set forth in Article VI and unless this Agreement is terminated in accordance with Article VII, nonetheless take place on the terms set forth herein and, thereafter, (A) Buyer, Parent and Seller and their respective Affiliates shall, subject to the provisions of Section 5.14(b)(iv), cooperate in any lawful and commercially reasonable arrangement proposed by Buyer and agreed to by Seller (which agreement will not be unreasonably withheld, conditioned or delayed) under which, until the earlier of the date on which the applicable Sellers under such Transferred Asset consent or any claim or right or any benefit arising thereunder approval is obtained pursuant to Section 5.14(b)(iii)(B) and the Buyers Applicable Date, (1) Buyer shall indemnifyobtain (without infringing upon the legal rights of such third party or violating Applicable Law) the economic claims, defendrights and benefits with respect to such Contract and (2) Buyer shall assume the economic burden with respect to such Contract and (B) following the Closing until the Applicable Date, hold harmless Buyer, Parent and promptly pay Seller shall and shall cause their respective Affiliates to use their respective commercially reasonable efforts to (1) obtain the Sellers third-party consent related to such Contract and (2) enforce, at the request of Buyer and until the Applicable Date, at the expense and for all Liabilities the account of Buyer, any rights of Seller or its Affiliates arising from such Contract.
(iv) If, prior to the Applicable Date, any third-party or Governmental Authority consent or approval referred to in Section 5.14(b)(i) is obtained after the Closing, the assignment or other transfer of the Sellers associated with Contributed Asset to which such arrangement consent or approval relates shall be promptly effected in accordance with the terms of this Section 5.14 in a manner reasonably acceptable to Buyer and conditions Seller without the payment of additional consideration, and the obligations of Parent and Seller under the foregoing provisions of this Section 5.14(b) with respect to the applicable Contributed Asset shall terminate and be of no further force or effect.
(v) Subject to Section 5.14(b)(i), if after the Closing (A) Buyer or any of its Affiliates holds any Excluded Assets or (B) Parent, Seller or any of their respective Affiliates holds any Contributed Assets, Buyer, Parent or Seller (as applicable) shall use reasonable efforts, until the Applicable Date, to promptly transfer (or cause to be transferred) such arrangementsassets to the other party.
(vi) From the Closing until the Applicable Date, Parent and Seller (A) shall use, and cause their respective Affiliates to use, commercially reasonable efforts to cooperate with Buyer and its Affiliates in order to provide Buyer, at Buyer’s expense and upon Buyer’s request, with all of the economic benefits of, and Buyer shall assume all of the economic burden under, any Shared Contracts to the extent that such Shared Contracts relate to the Business or the Contributed Assets and (B) shall, and shall cause their respective Affiliates to, reasonably cooperate with Buyer to enter into a separate Contract with the third party to each Shared Contract on comparable terms in respect of the Business as promptly as practicable after the Closing.
(vii) Nothing in this Section 5.14 will be deemed or construed to limit the parties’ rights or obligations under the Transition Services Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (American Capital, LTD), Purchase and Sale Agreement (American Capital Agency Corp)
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it any Seller is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers Buyer under such asset, permit, claim or right. The Sellers shall use commercially reasonable efforts (which shall not include making any monetary expenditure or granting any material accommodation, unless financial or otherwise, to any third party) to obtain any consents or waivers required to assign to the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of Buyer any Transferred Asset that requires the consent or lack thereof of a third party, without any conditions to such transfer or changes or modifications of terms thereunder. The Buyer agrees that the Sellers shall not have any liability to the Buyer arising out of or relating to the failure to obtain any such consent that may be required in connection with the transactions contemplated by this Agreement or the Ancillary Agreements or because of any circumstances resulting therefrom (other than liability arising from a breach of Section 3.3).
(b) If any such consent is not obtained prior to Closing, Sellers shall continue to use commercially reasonable efforts (which shall not include making any monetary expenditure or granting any material accommodation, financial or otherwise, to any third party) to obtain such consent following Closing. If, with respect to any Transferred Assethowever, such consent is not obtained or despite such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If efforts and (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any consent is not obtained prior to Closing and as a result thereof the Buyers Buyer shall be prevented by a such third party from receiving the rights and benefits with respect to a such Transferred Asset intended to be transferred hereunder, or (ii) if any attempted assignment of a Transferred Asset would (x) adversely affect the rights of any Seller thereunder and therefore the Sellers thereunder so that the Buyers Buyer would not in fact receive all the such rights and benefits contemplated or (iiiy) any Transferred Asset is not the Sellers would forfeit or otherwise capable lose the benefit of sale and/or assignment (after giving effect rights that the Sellers are entitled to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Periodretain, the Sellers shall, subject to any approval of and the Bankruptcy Court that may be required, at the written request of the Buyers, Buyer shall cooperate with the Buyers in any lawful and commercially reasonable arrangement arrangement, as the Sellers and the Buyer shall agree, under which the Buyers Buyer would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer; provided that each party shall pay its own expenses in the event that such cooperation and actions are required to preserve rights and benefits as contemplated above (i.e. in the case of Contracts that would be partially assigned or shared). Without limiting the foregoing, during the Wind-Down Period, the The Sellers shall promptly pay to the Buyers Buyer when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers Buyer shall indemnify, defend, hold harmless indemnify and promptly pay the Sellers for all Liabilities liabilities of the Sellers associated with such arrangement in accordance with Transferred Asset to the terms and conditions of extent such arrangementsliabilities would have been Assumed Liabilities hereunder if such Transferred Asset was assigned to the Buyer.
Appears in 2 contracts
Samples: Asset and Share Purchase Agreement, Asset and Share Purchase Agreement (Enpro Industries, Inc)
Consents to Certain Assignments. (ai) Notwithstanding anything in this Agreement or any Ancillary Agreement The Seller and the Buyer will, prior to the contraryClosing Date, this Agreement cooperate in the giving of all notices to third parties (including all Governmental Authorities) and the Ancillary Agreements shall not constitute an agreement will use their commercially reasonable efforts to transfer or assign obtain all approvals, consents, novations and waivers of any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law party (including all Governmental Authorities) that are required to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant give effect to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as transactions contemplated by this Agreement or which are otherwise required under any Ancillary AgreementContract, license, lease or Permit in connection with the consummation of the transactions contemplated by this Agreement (the “Required Consents”); provided that the Seller will be obligated hereunder to pay any contractually required consideration to any third party from whom such consent is requested.
(bii) If the parties are unable to obtain any Required Consent prior to Closing, but the Closing occurs: (iA) notwithstanding Sections 2(a) and 2(c), neither this Agreement nor the applicable provisions of Sections 363 Assignment and 365 Assumption Agreement nor any other document related to the consummation of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyerstransactions contemplated hereunder shall constitute a sale, any consent is not obtained prior to Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunderassignment, (ii) any assumption, transfer, conveyance or delivery or an attempted assignment sale, assignment, assumption, transfer, conveyance or delivery of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would or Assumed Liability for which a Required Consent has not in fact receive all the rights been obtained and benefits contemplated or (iiiB) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Periodat Buyer’s request, the Sellers shallparties shall continue to use commercially reasonable efforts, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, and cooperate with each other, to obtain any unobtained Required Consent as quickly as practicable. Pending the Buyers in obtaining of any lawful and such Required Consent, Seller shall (1) use all commercially reasonable efforts to take such actions as are reasonably requested by Buyer to limit the adverse effect upon Buyer and its Affiliates resulting from, or which would reasonably be expected to result after the Closing Date, from the failure to obtain such Required Consent, (2) cooperate in good faith with the Buyer to develop an alternative arrangement under which to ensure that Buyer obtains the Buyers wouldbenefits (and is responsible for the liabilities) consistent with the economic results intended by this Agreement. Seller shall also save, defend, indemnify and hold harmless the Buyer Indemnified Parties (as defined below) from and against any and all Losses to the extent practicablearising out of or resulting from the failure to obtain such Required Consent. Once such Required Consent is obtained, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers Seller shall promptly pay assign, transfer, convey and deliver the Transferred Asset to which such Required Consent relates to Buyer, and Buyer shall (from and after the Buyers when received all monies received by the applicable Sellers under date of such assignment, transfer, conveyance or delivery) assume any obligations or liabilities in connection with such Transferred Asset or any claim or right or any benefit arising thereunder that would have been Assumed Liabilities if such Transferred Asset would have been assigned, transferred, conveyed and delivered to Buyer on the Buyers shall indemnifyClosing Date, defend, hold harmless all pursuant to a special-purpose assignment and promptly pay the Sellers for all Liabilities assumption agreement substantially similar in terms to those of the Sellers associated with such arrangement Assignment and Assumption Agreement attached hereto as Exhibit A-1 (which special-purpose agreement the parties shall prepare, execute and deliver in accordance with good faith at the terms and conditions time of such arrangementstransfer, all at no increase in the Purchase Price).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Flowserve Corp), Asset Purchase Agreement (Xanser Corp)
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Sale Order and the commercially reasonable efforts of the Sellers Selling Entities and the BuyersBuyer pursuant to Section 2.5(d), any consent Consent or Governmental Authorization is not obtained prior to Closing and as a result thereof the Buyers Buyer shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Purchased Asset intended to be transferred hereunder, or (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Purchased Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Sale Order and the Bankruptcy Code), then, in each any such case, during the Wind-Down Period, the Sellers Selling Entities shall, prior to the closing of the Bankruptcy Case and subject to any approval of the Bankruptcy Court that may be required, required and at the written request of the BuyersBuyer, cooperate with the Buyers Buyer in any lawful and commercially reasonable arrangement under which the Buyers Buyer would, to the extent practicable, obtain (for no additional cost or consideration) the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer, and the Buyer shall assume any related burden and obligation with respect to such Purchased Asset to the extent such burden and obligation would constitute an Assumed Liability if such Purchased Asset was transferred at Closing; provided, that the Selling Entities’ cooperation obligations contemplated by this Section 2.6 shall not include any obligation by any Selling Entity or any of its Affiliates to pay money (advance or otherwise) to any third party or to incur out-of-pocket expenses unless the Buyer funds such amounts. Without limiting The Buyer shall cooperate with the foregoing, during Selling Entities in order to enable the Wind-Down Period, Selling Entities to provide to the Sellers Buyer the benefits contemplated by this Section 2.6. The Selling Entities shall as promptly as practicable pay to the Buyers Buyer when received all monies received by the applicable Sellers under Selling Entities attributable to such Transferred Purchased Asset or any claim or right or any benefit arising thereunder from and after the Closing Date and the Buyers Buyer shall indemnify, defend, hold harmless and promptly pay the Sellers Selling Entities for all Liabilities reasonable and documented out-of-pocket costs incurred by the applicable Selling Entities associated with, arising or resulting from such arrangement.
(b) Without limiting anything contained in this Section 2.6, from and after the Closing and until the receipt of all consents or approvals required to effect the transfer (by novation or assignment or otherwise) of the Sellers associated with Assumed Real Property Lease (such arrangement transfers, the “Contract Assignments”) in accordance with this Section 2.6(b): (i) the terms Parties undertake and conditions agree to, as promptly as practicable and advisable, negotiate in good faith and take or cause to be taken all actions, and to do or cause to be done all things necessary, proper or advisable on their respective parts to execute and enter into a Subcontract Agreement Pending Novation (the “Subcontract Agreement Pending Novation”) concerning the disposition of the Assumed Real Property Lease not yet assigned at Closing; and (ii) the Parties shall use commercially reasonable efforts to obtain any consents or approvals of any Governmental Authority, including by jointly preparing, in accordance with 48 C.F.R. Subpart 42.12, and any applicable agency regulations or policies, written requests meeting the requirements of 48 C.F.R. Subpart 42.12, as reasonably interpreted by the applicable responsible contracting officer (as such term is used in 48 C.F.R. Subpart 42.1202, each, a “Responsible Contracting Officer”), which shall be in form and substance reasonably satisfactory to the Parties and which shall be submitted by the applicable Selling Entity to the applicable Responsible Contracting Officer to (A) recognize Buyer as such Selling Entity’s successor-in-interest to such Assumed Real Property Lease, and (B) enter into one or more novation agreements, and such other documents as the applicable Governmental Authorities may require, in form and substance reasonably satisfactory to the Parties, pursuant to which, subject to the requirements of 48 C.F.R Subpart 42.12, all of such arrangementsSelling Entity’s right, title and interest in and to, and all of such Selling Entity’s obligations and liabilities under, such Assumed Real Property Lease shall be validly conveyed, transferred and assigned and novated to the Buyer, in each case in order to permit the Contract Assignments as promptly as reasonably practicable following the Closing.
(c) To the extent that the Buyer has not obtained all of the Permits included in the Purchased Assets that are necessary for the Buyer to take title to all of the Purchased Assets at the Closing and to operate all aspects of the Business as of immediately following the Closing in a substantially similar manner in all material respects as it was operated by the Selling Entities immediately prior to the Closing, the Selling Entities shall, to the extent permitted by applicable Laws, use commercially reasonable efforts to maintain after the Closing such Permits that the Buyer reasonably requests, at the Buyer’s sole expense, until the earlier of the time the Buyer has obtained such Permits and six (6) months following the Closing (or the remaining term of any such Permit or the closing of the Bankruptcy Case, if shorter).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Virgin Orbit Holdings, Inc.), Asset Purchase Agreement (Rocket Lab USA, Inc.)
Consents to Certain Assignments. (a) Notwithstanding To the maximum extent permitted by the Bankruptcy Code, the US Contracts and the rights of the Seller and Debtor Affiliates to US Intellectual Property shall be assumed and assigned to the Buyer pursuant to Section 365 of the Bankruptcy Code as of the Closing Date or such other date as specified in the Sale Order, any other order of the Bankruptcy Court or this Agreement (provided that such Orders conform to the provisions of this Agreement and the Lease and Operating Agreement), as applicable.
(b) Subject to Section 2.6(a), notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any assetTransferred Asset or any claim, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent Consent of a third party, would constitute a breach or other contravention under any agreement agreement, contract or Law to which the Seller or any Affiliate of the Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers Seller or any of its Affiliates or, upon transfer, the Buyers Buyer under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permitTransferred Asset, claim, right or right irrespective of benefit. The Seller shall use (and shall cause other relevant Seller Entities to use) its commercially reasonable efforts to obtain any Consents required to assign to the consent or lack thereof Buyer any Transferred Asset that requires the Consent of a third party. Ifparty and the Buyer shall cooperate with the Seller in obtaining any such Consents; provided, however, that this Section 2.6(a) shall not be applicable to the transfer of any Non-Exclusive Interest, with respect to any Transferred Assetwhich Section 5.23 shall govern. Notwithstanding the foregoing, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset Seller shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates obligated to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate payments to obtain any Action (other than Actions Consent except for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions payment of Sections 363 its own expenses, (ii) the reimbursement of reasonable out-of-pocket expenses of other parties to the Business Contracts that require Consent for assignment to the Buyer, and 365 of (iii) the Bankruptcy Code and Cure Costs. Without limiting the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyersforegoing, if any consent such Consent is not obtained prior to Closing the Closing, if requested by the Buyer, the Seller and as a result thereof the Buyers Buyer shall be prevented by a third party from receiving cooperate (at the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights expense of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iiiBuyer) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement mutually agreed upon by the Seller and the Buyer under which the Buyers would, to Buyer shall receive (without infringing upon the extent practicable, obtain legal rights of any third party or violating any applicable Law) the economic claims, rights and benefits (net of the amount of any related Tax costs imposed on the Seller and its Affiliates) under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreementasset, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right with respect to which the required consent or waiver has not been obtained; provided that the Buyer shall assume any benefit arising thereunder related economic burden (including the amount of any related Tax costs imposed on the Seller and its Affiliates) with respect to the asset, claim or right subject to such arrangement and provided, further, that the Buyer shall indemnify the Seller Indemnified Parties with respect to any Losses incurred by any Seller Indemnified Party in connection with such arrangement, to which arrangements the Seller and the Buyers Buyer shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangementshave agreed.
Appears in 1 contract
Samples: Asset Purchase Agreement
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, but subject to the provisions of this Section 1.03 and Section 5.04, to the extent the transfer, sale, conveyance, delivery or assignment, or the attempted transfer, sale, conveyance, delivery or assignment, to Purchaser of any Transferred Asset would result in violation of Applicable Law or would require the consent, approval, authorization or waiver (“Consent”) of a person who is not a Party or an Affiliate of a Party (including Governmental Entities), and such Consent shall not have been obtained prior to the Closing, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer a transfer, sale, conveyance, delivery or assign any assetassignment, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such assetsale, permitconveyance, claim delivery or rightassignment, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such assetthereof; provided, permithowever, claimthat, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant subject to the Bankruptcy Code satisfaction or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any waiver of the conditions contained in Article VII and subject to the obligations of the Buyers as set forth in Section 7.3 hereof2.06, the Closing shall proceed with respect occur notwithstanding the foregoing without any adjustment to the remaining Purchase Price on account thereof. Following the Closing, Purchaser and Seller shall, and Seller shall cause each of the Seller Affiliates to, use their reasonable best efforts and cooperate with each other, to obtain any such required Consent as promptly as practicable after the Closing. Once such Consent is obtained, Seller shall, and shall cause the Seller Affiliates, as applicable, to transfer, sell, convey, deliver or assign to Purchaser the relevant Transferred Assets; provided Asset to which such Consent relates for no additional consideration. Purchaser agrees that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or neither Seller nor any of their respective the Seller Affiliates will have any Liability whatsoever to make Purchaser arising out of or relating to the failure to obtain any payment (other than as required in the applicable contract such Consent or permit because of any circumstances resulting therefrom unless failure to obtain that Consent is otherwise a breach of a representation, warranty, or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by covenant of Seller under this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding To the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any consent is not obtained prior to Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so extent that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is cannot otherwise capable of sale and/or assignment (after giving effect be transferred to Purchaser at the Closing pursuant to this Section 1.03, Purchaser and Seller shall enter into mutually agreeable, reasonable arrangements to provide to the Confirmation Order and Parties the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement under which the Buyers wouldeconomic benefit and, to the extent practicablepermitted under Applicable Law, obtain operational equivalent of the economic claims, rights and benefits under transfer of such asset and assume the economic burdens and obligations with respect thereto in accordance with this AgreementTransferred Asset, including by subcontractingany indemnities, sublicensing that they would have obtained had the asset been conveyed to Purchaser at the Closing. Purchaser shall, as agent or subleasing to subcontractor for Seller or any Seller Affiliate, pay, perform and discharge fully the Liabilities of Seller or the applicable BuyerSeller Affiliate thereunder from and after the Closing Date. Without limiting To the foregoingextent permitted under Applicable Law, during Seller shall, and shall cause the Wind-Down Periodapplicable Seller Affiliate to, the Sellers shall promptly at Purchaser’s expense, hold in trust for and pay to the Buyers when received Purchaser promptly upon receipt thereof, such Transferred Asset and all income, proceeds and other monies received by Seller or any Seller Affiliates to the applicable Sellers under extent related to such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance connection with the terms and conditions arrangements under this Section 1.03. Notwithstanding anything herein to the contrary, the provisions of such arrangementsthis Section 1.03 shall not apply to any Consent required under any Antitrust Laws, which Consent shall be governed by Section 5.04.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrarycontrary herein, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer sell, transfer, assign or assign deliver, directly or indirectly, any assetDedicated MMIS Contract or any other Permit or other Contract included in the Transferred Assets (a “Non-Transferable Asset”), permit, claim or right or any benefit arising thereunder or resulting therefrom thereunder, if an attempted direct or indirect sale, transfer, assignment or delivery thereof, is prohibited by applicable Law or, without the consent Consent of a third partyparty (including a Governmental Authority), would constitute a breach breach, default or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights violation of the Sellers orterms of such Non-Transferable Asset. In such a case, upon transfersubject to the satisfaction or waiver of the conditions set forth in Section 9.01 and Section 9.02, the Buyers under such asset, permit, claim or right, unless Closing shall nonetheless take place on the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. Ifterms set forth herein and, with respect to any Transferred each such Non-Transferable Asset, from the Closing until the earlier of (x) obtaining the required Consent or clearance under applicable Law and (y) the expiration of such consent is not obtained Non-Transferable Asset in accordance with its terms (without any extensions or such assignment is not attainable pursuant renewals thereof):
(i) each of Purchaser and its Affiliates, on the one hand, and the Remaining Seller Group, on the other hand, shall provide or cause to be provided to the Bankruptcy Code other parties all commercially reasonable assistance as is reasonably requested in connection with obtaining the required Consent or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed clearance under applicable Law with respect to the remaining Transferred Assetssuch Non-Transferable Asset; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 none of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any consent is not obtained prior to Closing and as a result thereof the Buyers Remaining Seller Group shall be prevented by a third party from receiving the rights required to take any Extraordinary Actions in connection therewith; and benefits with respect to a Transferred Asset intended to be transferred hereunderprovided, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so further, that the Buyers would Remaining Seller Group shall not agree to any material modification of any term of or condition in fact receive all any Non-Transferable Asset or commit on behalf of Purchaser or its Affiliates or the rights and benefits contemplated or (iii) MMIS Business to any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), thenmaterial post-Closing obligation, in each case, during in order to obtain any such Consent, except with the Windprior written consent of Purchaser;
(ii) solely to the extent not prohibited by the terms of the applicable Non-Down PeriodTransferable Asset or applicable Law, the Sellers shall, subject Remaining Seller Group shall operate such Non-Transferable Asset in the Ordinary Course of Business on Purchaser’s behalf and at Purchaser’s lawful and reasonable direction and use reasonable best efforts to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, enter and cooperate with the Buyers in any lawful and commercially reasonable pass-through arrangement (a “Back-to-Back Arrangement”) proposed by Purchaser under which (A) Purchaser shall obtain (without infringing upon the Buyers wouldlegal rights of any third party or Governmental Authority or violating any applicable Law) for no additional consideration the same economic rights and benefits, and shall assume and bear the same economic burden, of such Non-Transferable Asset as if such Non-Transferable Asset had been assigned to Purchaser as of Closing (it being the intent of such actions to put the parties in the same net economic position (on a cash basis) as if such Non-Transferrable Assets were transferred to Purchaser at the Closing), (B) the Remaining Seller Group shall cooperate with Purchaser and its Affiliates, at Purchaser’s expense, to enforce any rights available against any other party to such Non-Transferable Asset, and (C) the extent practicable, obtain the economic claims, rights Remaining Seller Group shall hold in trust for and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all Purchaser promptly upon receipt thereof, any income, proceeds and other monies received by the applicable Sellers Remaining Seller Group to the extent related to any Non-Transferable Asset in connection with the Back-to-Back Arrangement under this Section 2.06(a)(ii);
(iii) to the extent Seller or one of its Controlled Affiliates retains a Dedicated MMIS Customer Contract or a Dedicated MMIS Bid at Closing because it is a Non-Transferable Asset, Seller shall, and shall cause its Controlled Affiliates to, execute and deliver to Purchaser at Closing a Government Customer Subcontract Agreement to establish the Back-to-Back Arrangements regarding each such Transferred Asset or any claim or right or any benefit arising thereunder Dedicated MMIS Customer Contract and Dedicated MMIS Bid. Notwithstanding anything to the Buyers shall indemnifycontrary contained herein, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions set forth in each Government Customer Subcontract Agreement (not Section 2.06(a)(ii)) shall apply with respect to the Back-to-Back Arrangements regarding each Non-Transferable Asset that is a Dedicated MMIS Customer Contract or Dedicated MMIS Bid that cannot be transferred or assigned to Purchaser or one of its Controlled Affiliates at Closing; and
(iv) to the extent Seller retains a Dedicated MMIS Customer Contract at Closing because it is a Non-Transferable Asset and continued performance under such Dedicated MMIS Customer Contract requires certain other Transferred Employees and/or Transferred Assets, Seller and Purchaser shall cooperate reasonably to determine whether such Transferred Employees and/or such Transferred Assets should remain with Seller (in which case Seller shall provide a Back-to-Back Arrangement to Purchaser in respect of such arrangementsTransferred Employees and/or Transferred Assets as provided in Section 2.07(b)(ii), applied mutatis mutandis) or transfer to Purchaser (in which case Purchaser shall provide a Back-to-Back Arrangement to Seller in respect of such Transferred Employees and/or Transferred Assets as provided in Section 2.07(b)(ii), applied mutatis mutandis), in cash case, until such Dedicated MMIS Customer Contract transfers to Purchaser pursuant to Section 2.06(b).
(b) Once Consent for the transfer or assignment of a Non-Transferable Asset is obtained or clearance under applicable Law is received, Seller shall promptly transfer and assign or cause the transfer and assignment of such Non-Transferable Asset (including all rights, obligations and other Liabilities thereunder) to Purchaser without payment of any further consideration and Purchaser, without the payment of any further consideration, shall assume such Non-Transferable Asset (including all rights, obligations and other Liabilities thereunder).
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement Transaction Document to the contrary, this Agreement and the Ancillary Agreements Transaction Document shall not constitute an agreement to transfer or assign any Contract, asset, permit, license, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any member of the Seller Group is a party or by which it is bound, or in any way adversely affect the rights of the Sellers Seller or, upon transfer, the Buyers Buyer under such asset, permit, claim or right, unless . The Seller shall use its commercially reasonable efforts to obtain any consents or waivers required to assign to the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of Buyer any transferred Asset that requires the consent or lack thereof of a third party, without any conditions to such transfer or changes or modifications of terms thereunder. If, with respect The Buyer agrees that the Seller Group shall not have any liability to the Buyer arising out of or relating to the failure to obtain any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not that may be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in connection with the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as transactions contemplated by this Agreement or the Transaction Documents or because of any Ancillary Agreementcircumstances resulting therefrom.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any such consent is not obtained prior to Closing and as a result thereof the Buyers Buyer shall be prevented by a such third party from receiving the rights and benefits with respect to a Transferred such transferred Asset intended to be transferred hereunder, (ii) or if any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers Seller thereunder so that the Buyers Buyer would not in fact receive all such rights or the Seller would forfeit or otherwise lose the benefit of rights and benefits contemplated or (iii) any Transferred Asset that the Seller is not otherwise capable of sale and/or assignment (after giving effect entitled to retain, the Confirmation Order Seller and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, Buyer shall cooperate with the Buyers in any lawful and commercially reasonable arrangement arrangement, as the Seller and the Buyer shall agree, under which the Buyers Buyer would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers The Seller shall promptly pay to the Buyers Buyer when received all monies received by the applicable Sellers Seller under such Transferred transferred Asset or any claim or right or any benefit arising thereunder and the Buyers Buyer shall indemnify, defend, hold harmless indemnify and promptly pay the Sellers Seller for all Liabilities liabilities of the Sellers Seller associated with such arrangement transferred Asset.
(c) The Seller shall not take any action or suffer any omission that could limit, restrict or terminate in accordance with any material respect the terms and conditions benefits to the Buyer of such arrangementsNon-Assignable Contract unless, in good faith and after consultation with and prior written notice to the Buyer, the Seller is (i) ordered to do so by a Governmental Entity of competent jurisdiction or (ii) otherwise required to do so by Law; provided that if any such order is appealable, the Seller shall, at the Buyer’s sole cost and expense, take such reasonable actions as are requested by the Buyer to file and pursue such appeal and to obtain a stay of such order. Nothing in this Agreement or the Assignment and Assumption Agreement shall constitute a sale, assignment, transfer or conveyance to, or assumption by, the Buyer of the Non-Assignable Contracts without the consent of the Buyer. With respect to any such Non-Assignable Contract as to which the necessary approval or consent for the assignment or transfer to the Buyer is obtained following the Closing, the Seller shall transfer such Non-Assignable Contract to the Buyer by execution and delivery of an instrument of conveyance reasonably satisfactory to the Buyer within five (5) Business Days following receipt of such approval or consent.
Appears in 1 contract
Samples: Purchase Agreement (Kopin Corp)
Consents to Certain Assignments. (a) Notwithstanding anything to the contrary contained in this Agreement or any Ancillary Agreement to the contraryAgreement, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer sell, transfer, assign or assign deliver, directly or indirectly, any assetTransferred Contract or Permit, permit, claim or right or any benefit arising thereunder or resulting therefrom thereunder, if an attempted direct or indirect sale, transfer, assignment or delivery thereof, without the consent of a third partyparty (including a Governmental Entity), would constitute a breach breach, default, violation or other contravention under of the rights of such third party, would be ineffective with respect to any agreement party to such Transferred Contract or Law to which any Seller is a party Permit or by which it is bound, or would in any way adversely affect the rights of Purchaser or the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, Transferred Subsidiaries with respect to such Transferred Contract or Permit. LivaNova shall use reasonable best efforts to obtain any Transferred Assetsuch consent as soon as practicable after the date hereof (without requiring the payment of any amounts (except for any amount that Purchaser may agree to reimburse) by any Seller to any party in order to obtain such party’s consent and without any further consideration paid by Purchaser to any Seller); provided, that LivaNova shall not be deemed to have breached this Section 1.04 if any such consent is not obtained or notwithstanding that LixxXxxx xhall have exercised reasonable best efforts to obtain such assignment is not attainable pursuant consent. As soon as reasonably practicable after the date hereof and in any event prior to the Bankruptcy Code or the Confirmation OrderInitial Closing Date, then such Transferred Asset shall not be transferred hereunder, and, without prejudice LixxXxxx xhall provide notice to each third party (including any Governmental Entity) to whom notice of the conditions Acquisition is required to be given prior to the obligations Initial Closing under the terms of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement Contract or any Ancillary AgreementPermit.
(b) If any such consent as referred to in the preceding clause (ia) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any consent is not obtained prior to Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shallInitial Closing, subject to any approval the satisfaction of the Bankruptcy Court that may be requiredconditions to Closing in Article VII, at the written request Initial Closing shall nonetheless take place on the terms set forth herein and, from and after the date of the BuyersClosing until the eighteen month anniversary of the Initial Closing Date, LivaNova shall continue to use its reasonable best efforts to secure such consent as promptly as practicable after the Applicable Closing Date. LivaNova shall use its reasonable best efforts to cooperate with Purchaser (with each party being responsible for its own out-of-pocket expenses, but without requiring the Buyers payment of any amounts (except for any amount that Purchaser may agree to reimburse) by any Seller to any party in order to obtain such party’s consent and without any further consideration paid by Purchaser to any Seller) in any lawful and commercially reasonable arrangement proposed by Purchaser (and shall enter into such a Contract with Purchaser documenting such arrangement in connection with the Closing) under which (w) Purchaser or the Buyers wouldTransferred Subsidiaries shall obtain (without infringing upon the legal rights of such third party or violating any Law) the economic rights and benefits, x) Sellers and their respective affiliates shall follow reasonable directions of Purchaser in connection with actions taken or omitted to be taken under the Transferred Contract with respect to which the consent has not been obtained, including enforcing any rights thereunder, (y) Sellers or their respective affiliates shall remit to Purchaser any monies, rights or other consideration received in connection with the relevant Transferred Contract, and (z) Purchaser or the Transferred Subsidiaries shall assume any related economic burden and any other Liability (including the amount of any related Tax costs imposed on Sellers or their respective affiliates) and risk of assumption with respect to such Transferred Contract to the extent practicable, obtain any such obligations would have constituted Assumed Liabilities had the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing relevant consent been obtained prior to the applicable BuyerInitial Closing and the parties hereto agree to treat Purchaser or any of its affiliates, as the case may be, as the owner of the Transferred Contract for all Tax purposes. Without limiting Following the foregoingClosing until the eighteen month anniversary of the Initial Closing Date, during until such consent is obtained, Purchaser will, and will cause each of its affiliates to, exercise reasonable best efforts to discharge the Wind-Down Periodobligations under the terms of any Contract that has not yet been transferred or assigned due to the failure to receive such consent as if such Contract had been so transferred or assigned. Notwithstanding anything to the contrary contained herein, the Sellers parties hereto shall promptly pay cooperate in good faith to structure any arrangements described in this Section 1.04(b) in a manner that minimizes to the Buyers when received all monies received extent permitted by the applicable Sellers under such Transferred Asset Law any deduction or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers withholding for all Liabilities of the Sellers associated Taxes on payments in connection with such arrangement in accordance with the terms and conditions of such arrangements.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim Transferred Contract or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement such Transferred Contract or Law to which any Seller is a party or by which it is boundapplicable Law, or in any way adversely affect the rights of the Sellers any Seller or, upon transfer, the Buyers Buyer under such assetTransferred Contract. Promptly following the date hereof, permit, claim the Sellers shall use their commercially reasonable efforts to obtain any consents or right, unless waivers required to assign to the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of Buyer any Transferred Contract that requires the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations such transfer or changes or modifications of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or terms thereunder. If any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any such consent is not obtained prior to the Closing, the Closing shall nonetheless take place on the terms set forth herein and, thereafter, the Sellers and the Buyer shall, for a period not to exceed one year following the Closing, use their commercially reasonable efforts to secure such consent as promptly as practicable after the Closing. Additionally, the Sellers shall, for a result thereof period of one year following the Buyers shall be prevented by a third party from receiving Closing, use commercially reasonable efforts to (i) provide to the rights Buyer, at the request of the Buyer, the benefits of such Contract, and benefits with respect to a Transferred Asset intended to be transferred hereunderhold the same in trust for the Buyer, (ii) cooperate in any attempted assignment of a Transferred Asset would adversely affect reasonable and lawful arrangement approved by the rights of Buyer that is designed to provide the Sellers thereunder so that benefits under such Contract to the Buyers would not in fact receive all the rights Buyer, and benefits contemplated or (iii) enforce and perform, at the request and for the account of the Buyer, any Transferred Asset is not otherwise capable rights or obligations of sale and/or assignment (after giving effect any Seller arising under such Contract against or in respect of any Person, including the right to elect to terminate such Contract in accordance with the Confirmation Order and its terms thereof upon the Bankruptcy Code), thenwritten direction of the Buyer, in each case, at the sole cost and expense of the Buyer. The Buyer shall assume any related post-Closing economic burden with respect to any Transferred Contract subject to foregoing sentence.
(b) Promptly following the date hereof, the Sellers shall use their commercially reasonable efforts to cause each Shared Contract that is a packaging or ingredient supplier (excluding any raw nut supplier) Contract set forth on Section 2.5(b) of the Disclosure Schedules for which (i) more than 75% of the payments made by the Sellers and their Affiliates under such Shared Contract during the Wind12-Down Periodmonth period ended December 31, 2019 are allocable to the Business and (ii) the payments made by the Business exceeded $1,000,000 during the 12-month period ended December 31, 2019 to be assigned in part to the Buyer as of Closing or to appropriately amend such Shared Contract so that, in each case, the Buyer will, at and following the Closing, be entitled and subject to the same benefits and obligations as the applicable Seller is entitled and subject to prior to the Closing with respect to the portion of such Shared Contracts applicable to the Business. If any such consent or amendment is not obtained prior to the Closing, the Closing shall nonetheless take place on the terms set forth herein and, thereafter, the Sellers and the Buyer shall, for a period not to exceed one year following the Closing, use their commercially reasonable efforts to secure such consent or amendment as promptly as practicable after the Closing. Additionally, the Sellers shall, subject for a period of one year following the Closing, use commercially reasonable efforts to any approval of (i) provide to the Bankruptcy Court that may be requiredBuyer, at the written request of the BuyersBuyer, the benefits of such Shared Contract related to the Business, and hold the same in trust for the Buyer, (ii) cooperate with the Buyers in any reasonable and lawful arrangement approved by the Buyer that is designed to provide the benefits related to the Business under such Shared Contract to the Buyer, and commercially reasonable arrangement (iii) enforce and perform, at the request and for the account of the Buyer, any rights or obligations of any Seller arising under which such Shared Contract with respect to the Buyers wouldBusiness against or in respect of any Person, in each case, at the sole cost and expense of the Buyer. The Buyer shall assume any related post-Closing economic burden under any Shared Contract subject to foregoing sentence, but only to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing related to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities ’s operation of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangementsBusiness after Closing.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrarycontrary (subject to the provisions of Section 1.03(b)), this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, asset or any claim or right or any benefit arising thereunder under or resulting therefrom from such asset if an attempted direct or indirect assignment thereof, without the consent of a third party, would constitute a breach breach, default, violation or other contravention under of the rights of such third party, would be ineffective with respect to any party to an agreement concerning such asset, claim or Law to which any Seller is a party or by which it is boundright, or would in any way adversely affect the rights of Seller or any of the Sellers Seller Affiliates or, upon transfer, the Buyers Purchaser under such asset, permitclaim or right. If any transfer or assignment by Seller or any of the Seller Affiliates to Purchaser, or any direct or indirect assumption by Purchaser of, any interest in, or liability, obligation or commitment under, any asset, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of requires the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset transfer or assignment or assumption shall not be transferred hereunder, and, without prejudice made subject to such consent being obtained. Purchaser agrees that neither Seller nor any of the conditions Seller Affiliates shall have any liability whatsoever to Purchaser arising out of or relating to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect failure to the remaining Transferred Assets; provided obtain any such consent that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as may be required in connection with the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as transactions contemplated by this Agreement or because of any Ancillary Agreementcircumstances resulting therefrom. Purchaser further agrees that no representation, warranty or covenant of Seller herein shall be breached or deemed breached, and no condition shall be deemed not satisfied, as a result of (i) the failure to obtain any such consent, (ii) any circumstances resulting therefrom or (iii) any suit, action or proceeding (a “Proceeding”) or investigation commenced or threatened by or on behalf of any person arising out of or relating to the failure to obtain any such consent or any circumstances resulting therefrom.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any such consent is not obtained prior to the Closing, the Closing shall nonetheless take place on the terms set forth in this Agreement and, thereafter, Purchaser and Seller shall use their reasonable best efforts (not including the payment of any consideration by Seller) to secure such consent as promptly as practicable after the Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement reasonably proposed by Purchaser under which (i) Purchaser shall obtain (without infringing upon the Buyers would, to the extent practicable, obtain legal rights of such third party or violating any Applicable Law) the economic claims, rights and benefits (net of the amount of any related Tax costs imposed on Seller, any of the Seller Affiliates or any of their respective affiliates on post-Closing income so transferable to Purchaser) under such asset and assume the economic burdens and obligations asset, claim or right with respect thereto to which the consent has not been obtained in accordance with this Agreement and (ii) Seller shall bear any related economic burden resulting from implementation of any such alternative arrangement pursuant to this Section 1.03 (other than the amount of any such related Tax costs borne by Purchaser pursuant to clause (i) above) because a third party consent has not been obtained in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangements.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contraryThe Buyer agrees that, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, than with respect to the breach of any Transferred Assetobligation hereunder, such consent is not obtained or such assignment is not attainable pursuant neither the Seller nor the Subsidiaries shall have any liability to the Bankruptcy Code Buyer arising out of or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions relating to the obligations of the Buyers failure to obtain any consent, including as set forth in Section 7.3 hereof2.5(b), the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as may be required in connection with the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as transactions contemplated by this Agreement or the Ancillary Agreements or because of any Ancillary Agreementcircumstances resulting therefrom.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, LFA Approval with respect to any consent Franchise is not obtained prior to Closing Closing, then such Franchise (each, a “Retained Franchise”) and as any assets required to be held by the franchisee pursuant to such Franchise (the “Retained Assets”), shall not be transferred to the Buyer at Closing, and the Seller and the Buyer shall execute a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits Retained Franchise Management Agreement with respect to a Transferred Asset intended each Retained Franchise. At the Closing, if LFA Approvals representing at least 65% of the individually-billed subscribers of the Systems owned by any C-Corporation are obtained, the Seller shall transfer the Shares related to such C-Corporation to the Buyer. If LFA Approvals representing at least 65% of the individually-billed subscribers of the Systems owned by any C-Corporation have not been obtained at the Closing, (1) the Shares relating to such C-Corporation (the “Retained Shares”) will not be transferred hereunderat the Closing and will be retained by the Seller until the earlier of 10 days after LFA Approvals Asset Purchase Agreement representing at least 65% of individually-billed subscribers of the Systems owned by such C-Corporation are received, six months following the Closing or the termination of the respective Retained Franchise Management Agreement and (2) the Franchises owned by such C-Corporation will be treated as “Retained Franchises”. Each Retained Franchise Management Agreement shall provide that the Buyer shall manage such Retained Franchise on behalf of the appropriate Subsidiary, subject to the following: (A) the Buyer shall bear all expenses relating to the Retained Franchise and the operation thereof after the Closing and shall receive the cash flow from the Systems served under the Retained Franchise as its management fee and (B) such management shall continue with respect to such Retained Franchise until such time as such Retained Franchise is assigned and transferred (or in the case of the Retained Shares, until such time that such shares are transferred) to the Buyer in accordance with this Agreement is revoked or the Retained Franchise Management Agreement is terminated pursuant to its terms. The Seller shall cause the Subsidiaries to transfer, at no additional cost to the Buyer, each Retained Franchise and the related Retained Assets to the Buyer within 10 days after the LFA Approval for such transfer is received, or six months following the Closing or the termination of the respective Retained Franchise Management Agreement, whichever is sooner (except with respect to those Retained Franchises held by a C-Corporation which will be transferred with any Retained Shares). In the event the Retained Franchise is revoked or the Retained Franchise Management Agreement is terminated pursuant to its terms, the Seller shall cause the appropriate Subsidiary promptly thereafter to assign to the Buyer any right such Subsidiary may have with respect thereto and transfer the related Retained Assets to the Buyer. In the event that the Buyer is legally prohibited from managing any Retained Franchise, the Buyer and the Seller shall negotiate in good faith to resolve the management thereof to preserve the purpose and intent of this Section 2.5(b). Except as the parties shall agree as set forth in Section 2.5(c), the Base Purchase Price shall not be reduced in respect of any Franchise or Shares not transferred at the Closing, and any adjustments to the Base Purchase Price pursuant to this Agreement shall be made as of the Closing Time as if the Retained Franchises, Retained Assets and the Retained Shares were transferred at the Closing. In addition, the Buyer shall become liable for the Assumed Liabilities with respect to the Retained Franchises, Retained Assets and Retained Shares as of the Closing Time, and all representations and warranties (except as to those Required Consents that have not been obtained) made in connection with the Retained Franchises, Retained Assets and Retained Shares shall (I) be made as of the Closing Date rather than any subsequent transfer date and (II) survive as if such transfers occurred on the Closing Date. The Buyer and the Seller shall cooperate with respect to, and shall equally share the expenses of defending any legal challenges alleging the premature, unlawful or invalid transfer of any of the Franchises, including reasonable attorneys’ fees and consultants’ fees as well as the actual amount of any judgments obtained by a Governmental Authority resulting from (i) the transfer of any such Franchise without proper consent, or (ii) any attempted assignment action taken by the Buyer as manager and any amounts paid to reinstate any such Franchise revoked. If a Retained Franchise is revoked for any reason, there shall be no compensation or other remuneration paid by any party to another party as a result of a such revocation. Solely for purposes of determining the applicable percentage of individually-billed subscribers under this Section 2.5(b), Section 6.2(c) and Section 6.3(c), the parties shall use the number of subscribers in the Systems set forth on Schedule 6.3(c) of the Disclosure Schedules.
(c) If any Governmental Authority exercises its right of first refusal under any Franchise and the applicable Subsidiary is thereby required to transfer any of the Transferred Asset would adversely affect Purchase Agreement Assets to such Governmental Authority or its designee, then the rights parties shall negotiate in good faith to resolve the treatment of such Franchise (and corresponding subscribers) and equitably adjust the Purchase Price and other terms of the Sellers thereunder so Agreement in a manner that preserves the Buyers would not in fact receive all the rights purpose and benefits contemplated or (iii) any Transferred Asset is not otherwise capable intent of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval this Agreement as if such Franchise was never a part of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement under which the Buyers would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangementstransaction.
Appears in 1 contract
Samples: Asset Purchase Agreement (Charter Communications Inc /Mo/)
Consents to Certain Assignments. (a) Notwithstanding anything to the contrary contained in this Agreement or any Ancillary Agreement to the contraryAgreement, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer assignment or assign an attempted assignment of any asset, permit, asset or any claim or right or any benefit arising thereunder under or resulting therefrom if from such asset to the extent that an assignment or an attempted assignment thereof, without the consent of a third party, would constitute a breach breach, default, violation or other contravention under of the rights of such third party, would be ineffective with respect to any party to an agreement concerning such asset, claim or Law to which any Seller is a party or by which it is boundright, or would in any way adversely affect the rights of Seller or any of the Sellers Seller Affiliates or, upon transfer, the Buyers Purchaser under such asset, permitclaim or right until such time as such consent has been obtained. If any transfer or assignment by Seller or any of the Seller Affiliates to Purchaser, or any assumption by Purchaser of, any interest in, or liability, obligation or commitment under, any asset, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of requires the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset transfer or assignment or assumption shall not be transferred hereunder, and, without prejudice made subject to such consent being obtained. Purchaser agrees that neither Seller nor any of the conditions Seller Affiliates shall have any liability whatsoever to Purchaser arising out of or relating to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect failure to the remaining Transferred Assets; provided obtain any such consent that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as may be required in connection with the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as transactions contemplated by this Agreement or because of any Ancillary circumstances resulting therefrom. Purchaser further agrees that no representation, warranty or covenant of Seller herein shall be breached or deemed breached, and no condition shall be deemed not satisfied, as a result of (i) the failure to obtain any such consent, (ii) any circumstances resulting therefrom or (iii) any suit, action or proceeding (a "Proceeding") or investigation commenced or threatened by or on behalf of any person arising out of or relating to the failure to obtain any such consent or any circumstances resulting therefrom. On or prior to the Closing Date, Seller shall provide commercially reasonable assistance to Purchaser (not including the payment of any consideration) to secure any consent that may be required in connection with the transactions contemplated by this Agreement.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any such consent is not obtained prior to the Closing, the Closing shall nonetheless take place on the terms set forth herein and, thereafter, Purchaser shall use its commercially reasonable efforts to secure such consent as promptly as practicable after the Closing and as a result thereof the Buyers Seller shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended provide or cause to be transferred hereunder, provided all commercially reasonable assistance to Purchaser (iinot including the payment of any consideration) any attempted assignment of a Transferred Asset would adversely affect reasonably requested by Purchaser to secure such consent after the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated Closing or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers Purchaser (at Purchaser's expense) in any lawful and commercially reasonable arrangement reasonably proposed by Purchaser under which (i) Purchaser shall obtain (without infringing upon the Buyers would, to the extent practicable, obtain legal rights of such third party or violating any Applicable Law (as defined in Section 3.03)) the economic claims, rights and benefits (net of the amount of any related Tax costs imposed on Seller, any of the Seller Affiliates or any of their respective affiliates) under such asset and assume the economic burdens and obligations asset, claim, right or benefit with respect thereto to which the consent has not been obtained in accordance with this Agreement and (ii) Purchaser shall assume any related economic burden (including the amount of any related Tax costs imposed on Seller, any of the Seller Affiliates or any of their respective affiliates) with respect to the asset, claim, right or benefit with respect to which the consent has not been obtained in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangements.
Appears in 1 contract
Samples: Asset Purchase Agreement (Church & Dwight Co Inc /De/)
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any a Seller Party is a party or by which it is bound, or in if any way attempted assignment would adversely affect the rights of a Seller Party thereunder so that the Sellers or, upon transfer, the Buyers under Buyer Parties would not in fact receive all such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code rights or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice Seller Party would forfeit or otherwise lose the benefit of rights that the Seller Party is entitled to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreementretain.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any such consent is not obtained prior to Closing and as a result thereof the Buyers Buyer Parties shall be prevented by a such third party from receiving the rights and benefits with respect to a such Transferred Asset intended to be transferred hereunder, (ii) or if any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers a Seller Party thereunder so that the Buyers Buyer Parties would not in fact receive all such rights or the Seller Party would forfeit or otherwise lose the benefit of rights and benefits contemplated or (iii) any Transferred Asset that the Seller Party is not otherwise capable of sale and/or assignment (after giving effect entitled to retain, the Confirmation Order Seller and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers Buyer shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, : (i) cooperate with the Buyers in any lawful and commercially reasonable arrangement arrangement, as the Seller and the Buyer shall agree, under which the Buyers Buyer Parties would, to the extent practicablepracticable and for a period of no more than 18 months following the Closing Date, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer; provided, that all reasonable out-of-pocket administrative expenses of such cooperation and related actions shall be shared equally by the Buyer and the Seller, (ii) enforce at the request of the Buyer any rights of the Seller arising from such asset against the issuer thereof or other party or parties thereto (including the right to elect to terminate such asset in accordance with the terms thereof upon the advice of the Buyer), and (iii) continue to hold and operate such asset in all material respects in the ordinary course of business and taking into account the transactions contemplated by this Agreement and the Ancillary Agreements. Without limiting For the foregoingavoidance of doubt, during the Wind-Down Periodas provided in Section 5.12, the Sellers Seller Parties shall not be required to make any payments in respect of any consent to assignment or any third party license to be obtained by the Buyer Parties. The Seller shall promptly pay to the Buyers Buyer when received all monies received by the applicable Sellers Seller Parties under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers Buyer shall indemnify, defend, hold harmless indemnify and promptly pay the Sellers Seller for all Liabilities of the Sellers Seller Parties associated with such arrangement Transferred Asset. To the extent that the parties are not successful in accordance providing the economic claims, rights and benefits under a Transferred Asset to the Buyer Parties within 18 months following the Closing, such asset will cease to be a Transferred Asset and the Buyer Parties shall assume no Liabilities with the terms and conditions of respect to such arrangementsasset.
Appears in 1 contract
Samples: Asset Purchase Agreement (Marvell Technology Group LTD)
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to Without limiting the contraryeffect of ARTICLE 6, this Agreement the Buyer and the Ancillary Sellers agree that there shall be excluded from the Purchased Assets any Assumed Agreements shall that are not constitute an agreement to transfer assignable or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable transferable pursuant to the Bankruptcy Code or otherwise without the Confirmation Orderconsent of any Person other than the Sellers or any Affiliate of the Sellers, then to the extent that such Transferred Asset consent shall not be transferred hereunderhave been given prior to the Funding; provided, andhowever, that the Sellers shall have the continuing obligation (both before and after the Funding) to use all commercially reasonable efforts (including, without prejudice limitation, prosecution of appropriate motions pursuant to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code Code) to endeavor to obtain all necessary consents to the assignment thereof and, upon obtaining the requisite Third Party consents thereto, such Purchased Asset shall be assigned to the Buyer at no cost free and clear of all Liens other than the Confirmation Order and Permitted Liens; provided, further, that the commercially reasonable efforts Sellers shall not be required to incur any unreasonable costs or make any material payment to any Third Party (other than cure costs) to obtain any consent. With respect to any Assumed Agreement which is not transferred at the Funding as contemplated by the immediately preceding sentence, effective as of the Sellers and the Buyers, any consent is not obtained prior to Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the WindCut-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement under which the Buyers would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down PeriodOff Time, the Sellers shall promptly pay enter into arrangements reasonably requested by the Buyer designed to provide the Buyer the full and exclusive benefits of such asset; provided, however, that subject to Section 2.2(a)(ii) hereof, the Buyer assumes the duty to perform the obligations relating to such Assumed Agreements accruing after the Cut-Off Time. If and to the Buyers when received all monies received by extent such arrangements cannot be made, the Buyer shall have no obligation with respect to such Assumed Agreement. For the avoidance of doubt, this Section 2.8 shall not be applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and to the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangementsPL Servicing Rights.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to sell, transfer or assign assign, directly or indirectly, any asset, permit, asset or any claim or right or any benefit (including any Permit and any Contract) arising thereunder under or resulting therefrom from such asset if an attempted direct or indirect sale, transfer or assignment thereof, without the consent of a third partyparty (including any Governmental Entity), would constitute a breach breach, default, violation or other contravention under of the rights of such third party, would be ineffective with respect to any agreement party to a Contract concerning such asset, claim or Law to which any Seller is a party or by which it is boundright, or would in any way adversely affect the rights of the Sellers Seller or any Affiliate of Seller or, upon transfer, the Buyers Buyer under such asset, permitclaim or right. If any direct or indirect transfer or assignment by Seller to Buyer, or any direct or indirect acquisition or assumption by Buyer of, any interest in, or liability, obligation or commitment under, any asset, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of requires the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such transfer or assignment or assumption shall be made subject to such consent being obtained. Prior to Closing, Seller will use its commercially reasonable efforts to obtain the consent of all such third parties to the sale, transfer and assignment to Buyer of all Transferred Asset shall not be transferred Assets hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as extent required under any Contract set forth in Section 7.3 hereofSchedule 3.05(a) or 3.06(a), the Closing shall proceed with respect or to the remaining extent required and reasonably requested by Buyer, any other Transferred Assets; provided that nothing in this Agreement Contract or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary AgreementPermit.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any such consent is not obtained prior to the Closing, the Closing shall nonetheless take place on the terms set forth herein and, thereafter, each of Buyer and Seller shall use its commercially reasonable efforts to secure such consent as promptly as practicable after the Closing and as a result thereof the Buyers parties shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers each other in any lawful and commercially reasonable arrangement reasonably proposed by Buyer under which (i) Buyer shall obtain (without infringing upon the Buyers would, to the extent practicable, obtain legal rights of such third party) the economic claims, rights and benefits under such asset and assume the economic burdens and obligations asset, claim or right with respect thereto to which the consent has not been obtained in accordance with this Agreement (including sub-contracting, sub-licensing or sub-leasing to Buyer) and (ii) Buyer shall assume any related economic burden (including the amount of any related Tax costs imposed on Buyer or any of its Affiliates) with respect to the asset, claim or right with respect to which the consent has not been obtained in accordance with this Agreement. In such event, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall (i) Seller will promptly pay to the Buyers Buyer when received all monies received by the applicable Sellers Seller under such any Transferred Asset or any claim or right or any benefit arising thereunder thereunder, except to the extent the same represents an Excluded Asset and the Buyers shall indemnify, defend, hold harmless and (ii) Buyer will promptly pay the Sellers to Seller when received all monies received by Buyer under any Excluded Asset or any claim or right or any benefit arising thereunder. Seller shall be responsible for all Liabilities of the Sellers associated with such arrangement in accordance reasonable out-of-pocket expenses incurred by Buyer (with the terms prior written approval of Seller, such approval not to be unreasonably withheld) in connection with its and conditions Buyer’s commercially reasonable efforts to obtain the consents pursuant to this Section 1.03; provided that, except with respect to the Real Property Leases, Seller shall not be required to pay any consideration to any third party in order to obtain the consent of such arrangementsthird party.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to sell, transfer or assign any asset, permitagreement, Permit, claim or right or any benefit arising thereunder or resulting therefrom if an assignment or attempted assignment thereof, without the consent of a third partyPerson, would constitute a breach or other contravention under any agreement or Law applicable law to which the Seller or any Seller of its Subsidiaries is a party or by which it is bound. The Seller shall endeavor to obtain the consents or waivers listed on Schedule 1.5, which has been mutually agreed to by Seller and Buyer; provided that in no event shall Seller or any of its Subsidiaries be required to make any payment to any Person or otherwise expend any amount in order for such Person to agree to grant any way adversely affect such consent or waiver. The Buyer agrees that neither the rights Seller nor any of its Affiliates shall have any liability to the Buyer arising out of or relating to the failure to obtain any consent or waiver that may be required in connection with the transactions contemplated by this Agreement or the Ancillary Agreements or because of any circumstances resulting therefrom. The Buyer further agrees that no representation or warranty of the Sellers or, upon transfer, the Buyers under such asset, permit, claim Seller herein shall be breached or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, deemed breached and, without prejudice to any of the conditions to the obligations of the Buyers except as set forth in Section 7.3 hereof6.3(d), no condition shall be deemed not satisfied, as a result of (i) the Closing shall proceed with respect failure to obtain any consent or waiver or any circumstances resulting therefrom, (ii) any suit, action, proceeding or investigation commenced or threatened by or on behalf of any Person arising out of or relating to the remaining Transferred Assets; provided that nothing in this Agreement failure to obtain any such consent or waiver or any Ancillary Agreement shall require circumstances resulting therefrom, or (iii) any Seller, termination of a Contract that is a Transferred Asset by a third party to such Contract in the Buyers event such Contract grants such third party the right to terminate as a result of Seller or any of their respective Affiliates to make any payment (other than as required in its Subsidiaries entering into the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as transactions contemplated by this Agreement or any the Ancillary AgreementAgreements, or otherwise.
(b) If (i) notwithstanding Without prejudice to the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers6.3 (d), if any such consent or waiver is not obtained on or prior to Closing and and, as a result thereof thereof, the Buyers Buyer shall be prevented by a third party from receiving the rights and benefits with respect to a such Transferred Asset intended to be transferred hereunder, (ii) or if any transfer or assignment or attempted transfer or assignment of a Transferred Asset would adversely affect the rights of the Sellers Seller or any of its Subsidiaries thereunder so that the Buyers Buyer would not in fact receive all such rights or the Seller or any of its Subsidiaries would forfeit or otherwise lose the benefit of rights and benefits contemplated that the Seller or (iii) any Transferred Asset of its Subsidiaries is not otherwise capable of sale and/or assignment (after giving effect entitled to retain, the Confirmation Order Seller and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, Buyer shall cooperate with the Buyers in any lawful and commercially reasonable arrangement arrangement, as the Seller and the Buyer shall agree, under which the Buyers Buyer would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the liabilities, economic burdens and obligations with respect thereto in accordance with this Agreement, including including, without limitation, by subcontracting, sublicensing or subleasing to the applicable Buyer; provided that all reasonable out-of-pocket expenses of such cooperation and related actions shall be paid by the Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers The Seller shall promptly pay to the Buyers Buyer when received all monies received by the applicable Sellers under Seller or any of its Subsidiaries with respect to any such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers Buyer shall indemnify, defend, hold harmless indemnify and promptly pay the Sellers Seller and its Affiliates for all Liabilities liabilities, economic burdens and obligations of the Sellers Seller or any of its Affiliates associated with such arrangement in accordance with the terms and conditions of such arrangementsTransferred Asset or any claim or right or any benefit arising thereunder.
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Consents to Certain Assignments. (a) Notwithstanding anything to the contrary contained in this Agreement or any Ancillary Agreement to the contraryAgreement, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer sell, transfer, assign or assign deliver, directly or indirectly, any assetTransferred Contract or Permit, permit, claim or right or any benefit arising thereunder or resulting therefrom thereunder, if an attempted direct or indirect sale, transfer, assignment or delivery thereof, without the consent of a third partyparty (including a Governmental Entity), would constitute a breach breach, default, violation or other contravention under of the rights of such third party, would be ineffective with respect to any agreement party to such Transferred Contract or Law to which any Seller is a party Permit or by which it is bound, or would in any way adversely affect the rights of Purchaser or the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, Transferred Subsidiaries with respect to such Transferred Contract or Permit. LivaNova shall use reasonable best efforts to obtain any Transferred Assetsuch consent as soon as practicable after the date hereof (without requiring the payment of any amounts (except for any amount that Purchaser may agree to reimburse) by any Seller to any party in order to obtain such party’s consent and without any further consideration paid by Purchaser to any Seller); provided, that LivaNova shall not be deemed to have breached this Section 1.04 if any such consent is not obtained or notwithstanding that LivaNova shall have exercised reasonable best efforts to obtain such assignment is not attainable pursuant consent. As soon as reasonably practicable after the date hereof and in any event prior to the Bankruptcy Code or the Confirmation OrderInitial Closing Date, then such Transferred Asset LivaNova shall not be transferred hereunder, and, without prejudice provide notice to each third party (including any Governmental Entity) to whom notice of the conditions Acquisition is required to be given prior to the obligations Initial Closing under the terms of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement Contract or any Ancillary AgreementPermit.
(b) If any such consent as referred to in the preceding clause (ia) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any consent is not obtained prior to Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shallInitial Closing, subject to any approval the satisfaction of the Bankruptcy Court that may be requiredconditions to Closing in Article VII, at the written request Initial Closing shall nonetheless take place on the terms set forth herein and, from and after the date of the BuyersClosing until the eighteen month anniversary of the Initial Closing Date, LivaNova shall continue to use its reasonable best efforts to secure such consent as promptly as practicable after the Applicable Closing Date. LivaNova shall use its reasonable best efforts to cooperate with Purchaser (with each party being responsible for its own out-of-pocket expenses, but without requiring the Buyers payment of any amounts (except for any amount that Purchaser may agree to reimburse) by any Seller to any party in order to obtain such party’s consent and without any further consideration paid by Purchaser to any Seller) in any lawful and commercially reasonable arrangement proposed by Purchaser (and shall enter into such a Contract with Purchaser documenting such arrangement in connection with the Closing) under which (w) Purchaser or the Buyers wouldTransferred Subsidiaries shall obtain (without infringing upon the legal rights of such third party or violating any Law) the economic rights and benefits, x) Sellers and their respective affiliates shall follow reasonable directions of Purchaser in connection with actions taken or omitted to be taken under the Transferred Contract with respect to which the consent has not been obtained, including enforcing any rights thereunder, (y) Sellers or their respective affiliates shall remit to Purchaser any monies, rights or other consideration received in connection with the relevant Transferred Contract, and (z) Purchaser or the Transferred Subsidiaries shall assume any related economic burden and any other Liability (including the amount of any related Tax costs imposed on Sellers or their respective affiliates) and risk of assumption with respect to such Transferred Contract to the extent practicable, obtain any such obligations would have constituted Assumed Liabilities had the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing relevant consent been obtained prior to the applicable BuyerInitial Closing and the parties hereto agree to treat Purchaser or any of its affiliates, as the case may be, as the owner of the Transferred Contract for all Tax purposes. Without limiting Following the foregoingClosing until the eighteen month anniversary of the Initial Closing Date, during until such consent is obtained, Purchaser will, and will cause each of its affiliates to, exercise reasonable best efforts to discharge the Wind-Down Periodobligations under the terms of any Contract that has not yet been transferred or assigned due to the failure to receive such consent as if such Contract had been so transferred or assigned. Notwithstanding anything to the contrary contained herein, the Sellers parties hereto shall promptly pay cooperate in good faith to structure any arrangements described in this Section 1.04(b) in a manner that minimizes to the Buyers when received all monies received extent permitted by the applicable Sellers under such Transferred Asset Law any deduction or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers withholding for all Liabilities of the Sellers associated Taxes on payments in connection with such arrangement in accordance with the terms and conditions of such arrangements.
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Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom Transferred Asset if an attempted assignment thereof, without the consent of a third party, would constitute a breach violation of any Applicable Law or Judgment or a breach, default, violation or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect of the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions third party. If any assignment by any member of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claimSeller Group to, or right irrespective of any assumption by Purchaser of, any interest in, or Liability under, any Transferred Asset requires the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset assignment or assumption shall not be transferred hereundermade subject to such consent being obtained. Except for Seller’s obligations to obtain such consents under Section 5.04 and Section 1.04(b), and, without prejudice Purchaser agrees that no member of Seller Group shall have any Liability whatsoever to any of the conditions Purchaser relating to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect failure to the remaining Transferred Assets; provided obtain any such consent that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as may be required in connection with the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as transactions contemplated by this Agreement or any Ancillary Agreementcircumstances resulting therefrom. Purchaser further agrees that no representation, warranty, covenant or agreement of Seller herein shall be breached or deemed breached, and no condition shall be deemed not satisfied, as a result of (A) the failure to obtain any such consent, or (B) any suit, action or proceeding (a “Proceeding”) or investigation commenced or threatened by or on behalf of any person relating to the failure to obtain any such consent or any circumstances resulting therefrom.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any such consent is not obtained prior to the Closing, the Closing shall nonetheless take place on the terms set forth in this Agreement and, thereafter, Purchaser and Seller shall use their respective commercially reasonable efforts to secure such consent as a result thereof promptly as practicable after the Buyers shall be prevented by a third party from receiving Closing and, if and to the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) extent that any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset such Consent is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code)so obtained, then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, Seller shall cooperate with the Buyers in any lawful and commercially reasonable arrangement proposed by Purchaser under which (A) Purchaser shall obtain (without payment of any additional consideration therefor to Purchaser and without infringing upon the Buyers would, to the extent practicable, obtain legal rights of such third party or violating any Applicable Law or Judgment) the economic claims, rights and benefits under such asset and assume the economic burdens and obligations Transferred Asset with respect thereto to which the consent has not been obtained in accordance with this Agreement, including by subcontracting, sublicensing or subleasing Agreement and (B) Purchaser shall assume any related economic burden with respect to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangementsAsset.
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Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrarycontrary (other than Section 1.03(b)), this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign assign, directly or indirectly, any asset, permit, asset or any claim or right or any benefit arising thereunder under or resulting therefrom from such asset if an attempted direct or indirect assignment thereof, without the consent of a third party, would constitute a breach breach, default, violation or other contravention under of the rights of such third party, would be ineffective with respect to any party to an agreement concerning such asset, claim or Law to which any Seller is a party or by which it is boundright, or would in any way adversely affect the rights of Seller or any of the Sellers Seller Affiliates or, upon transfer, the Buyers Purchaser under such asset, permitclaim or right. If any direct or indirect transfer or assignment by Seller or any of the Seller Affiliates to Purchaser, or any direct or indirect acquisition or assumption by Purchaser of, any interest in, or liability, obligation or commitment under, any asset, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of requires the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset transfer or assignment or assumption shall not be transferred hereunder, and, without prejudice made subject to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreementsuch consent being obtained.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any such consent is not obtained prior to the Closing, the Closing shall nonetheless take place on the terms set forth herein and, thereafter, Purchaser and Seller shall use their respective reasonable best efforts to secure such consent as promptly as practicable after the Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement reasonably proposed by Purchaser under which (i) Purchaser shall obtain (without infringing upon the Buyers would, to the extent practicable, obtain legal rights of such third party or violating any Applicable Law) the economic claims, rights and benefits (net of the amount of any related Tax costs imposed on Seller, any of the Seller Affiliates or any of their respective affiliates imposed on post-Closing income so transferable to Purchaser) under such asset and assume the economic burdens and obligations Transferred Asset with respect thereto to which the consent has not been obtained in accordance with this Agreement and (ii) Seller shall bear any incremental economic burden resulting from implementation of any such alternative arrangement pursuant to this Section 1.03 (other than the amount of any such related Tax costs borne by Purchaser pursuant to clause (i) above) because a third party consent has not been obtained in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangements.
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Consents to Certain Assignments. (a) Notwithstanding To the maximum extent permitted by the Bankruptcy Code, the US Contracts and the rights of the Seller and Debtor Affiliates to US Intellectual Property shall be assumed and assigned to the Buyer pursuant to Section 365 of the Bankruptcy Code as of the Closing Date or such other date as specified in the Sale Order, any other order of the Bankruptcy Court or this Agreement (provided that such Orders conform to the provisions of this -------- Agreement and the Lease and Operating Agreement), as applicable.
(b) Subject to Section 2.6(a), notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any assetTransferred Asset or any claim, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent Consent of a third party, would constitute a breach or other contravention under any agreement agreement, contract or Law to which the Seller or any Affiliate of the Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers Seller or any of its Affiliates or, upon transfer, the Buyers Buyer under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permitTransferred Asset, claim, right or right irrespective of benefit. The Seller shall use (and shall cause other relevant Seller Entities to use) its commercially reasonable efforts to obtain any Consents required to assign to the consent or lack thereof Buyer any Transferred Asset that requires the Consent of a third party. Ifparty and the Buyer shall cooperate with the Seller in obtaining any such Consents; provided, however, that this -------- ------- Section 2.6(a) shall not be applicable to the transfer of any Non-Exclusive Interest, with respect to any Transferred Assetwhich Section 5.23 shall govern. Notwithstanding the foregoing, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset Seller shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates obligated to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate payments to obtain any Action (other than Actions Consent except for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions payment of Sections 363 its own expenses, (ii) the reimbursement of reasonable out-of-pocket expenses of other parties to the Business Contracts that require Consent for assignment to the Buyer, and 365 of (iii) the Bankruptcy Code and Cure Costs. Without limiting the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyersforegoing, if any consent such Consent is not obtained prior to Closing the Closing, if requested by the Buyer, the Seller and as a result thereof the Buyers Buyer shall be prevented by a third party from receiving cooperate (at the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights expense of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iiiBuyer) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement mutually agreed upon by the Seller and the Buyer under which the Buyers would, to Buyer shall receive (without infringing upon the extent practicable, obtain legal rights of any third party or violating any applicable Law) the economic claims, rights and benefits (net of the amount of any related Tax costs imposed on the Seller and its Affiliates) under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreementasset, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right with respect to which the required consent or waiver has not been obtained; provided that the Buyer shall assume any benefit arising thereunder related economic burden (including -------- the amount of any related Tax costs imposed on the Seller and its Affiliates) with respect to the asset, claim or right subject to such arrangement and provided, further, that the Buyer shall indemnify the Seller Indemnified -------- ------- Parties with respect to any Losses incurred by any Seller Indemnified Party in connection with such arrangement, to which arrangements the Seller and the Buyers Buyer shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangementshave agreed.
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Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent or waiver of a third party, would constitute a breach or other contravention under any agreement or Law to which the Seller or any Affiliated Seller is a party or by which it is boundbound unless and until such consent or waiver shall be given. The Seller or any Affiliated Seller, as applicable, shall use its commercially reasonable efforts (which, for clarity, shall not require any payments or in other separate consideration from the Seller or any way adversely affect Affiliated Seller to any third party) to obtain any consents or waivers required to assign to the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of Buyer any Transferred Asset that requires the consent or lack thereof waiver of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations such transfer or changes or modifications of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreementterms thereunder.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any such consent or waiver is not obtained prior to Closing and as a result thereof the Buyers Buyer shall be prevented by a such third party from receiving the rights and benefits with respect to a such Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated Seller or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order Affiliated Seller, as applicable, and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, Buyer shall cooperate with the Buyers in any lawful and commercially reasonable arrangement arrangement, as the Seller or such Affiliated Seller and the Buyer shall agree, under which the Buyers Buyer would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers The Seller or such Affiliated Seller shall promptly pay to the Buyers Buyer when received all monies received by the applicable Sellers Seller or such Affiliated Seller under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers Buyer shall indemnify, defend, hold harmless and promptly pay the Sellers Seller or such Affiliated Seller for, or otherwise satisfy, all corresponding Liabilities for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions enjoyment of such arrangementsclaim, right or benefit to the extent the Buyer would have been responsible therefor hereunder if such consent or waiver as described herein had been obtained.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim or right Transferred Asset or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If The Sellers (i) notwithstanding with the applicable provisions of Sections 363 and 365 reasonable cooperation of the Bankruptcy Code and the Confirmation Order and the commercially Buyer) shall use their reasonable best efforts of the Sellers and the Buyers, to obtain any consent or waiver required to assign to the Buyer any Transferred Asset prior to the Closing. If any such consent or waiver is not obtained prior to Closing and as a result thereof the Buyers Buyer shall be prevented by a such third party from receiving the rights and benefits with respect to a such Transferred Asset intended to be transferred hereunder, (ii) or if any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers any Seller thereunder so that the Buyers Buyer would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Periodsuch rights, the Sellers shalland the Buyer shall use their reasonable best efforts to obtain such consent or waiver after the Closing Date, subject and to any approval of take such actions such that the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement under which the Buyers would, to the extent practicable, Buyer would obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations under the same terms and for the same duration with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting All reasonable out-of-pocket expenses of such cooperation and related actions shall be paid by the foregoingparty incurring such expenses. The Sellers shall use reasonable best efforts to take all necessary actions to provide the Buyer the benefits of and enforce the Buyer’s rights with respect to such Transferred Asset under the same terms and for the same duration, during the Wind-Down Period, and the Sellers shall promptly pay to the Buyers Buyer when received all monies received by the applicable Sellers under in respect of or related to such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangementsAsset.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Pitney Bowes Inc /De/)
Consents to Certain Assignments. (a) Prior to the Global Closing (in the case of consents and authorizations relating to the Global Acquisition) and the China Closing (in the case of consents and authorizations relating to the China Acquisition), as applicable, Seller will provide or cause to be provided all commercially reasonable assistance to Purchaser (not including the payment of any consideration or concession of any right) reasonably requested by Purchaser to secure any consent or authorization that is required from any third party in connection with the applicable transactions contemplated hereby, including those listed in Section 3.03 of the Seller Disclosure Schedule. Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any assetassign, permit, claim directly or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyersindirectly, any consent is not obtained prior to Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement under which the Buyers would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and under or resulting from such asset if an attempted direct or indirect assignment thereof, without the Buyers shall indemnifyconsent, defendapproval or authorization (“Consent”) of a third party (including a Governmental Entity), hold harmless and promptly pay the Sellers for all Liabilities would constitute a breach, default, violation or other contravention of the Sellers associated rights of such third party, would be ineffective with respect to any party to an agreement concerning such asset, claim or right, would violate any Applicable Law or would in any way adversely affect the rights of Seller or any of the Seller Affiliates or, upon transfer, Purchaser under such asset, claim or right. If any direct or indirect transfer or assignment by Seller or any of the Seller Affiliates to Purchaser, or any direct or indirect acquisition or assumption by Purchaser of, any interest in, or liability, obligation or commitment under, any asset, claim or right requires the Consent of a third party as set forth above, then such transfer or assignment or assumption shall be made subject to such Consent being obtained. Purchaser agrees that neither Seller nor any of the Seller Affiliates shall have any liability whatsoever to Purchaser arising out of or relating to the failure to obtain any such Consent that may be required in connection with the transactions contemplated by this Agreement or because of any circumstances resulting therefrom. Purchaser further agrees that no representation, warranty or covenant of Seller herein shall be breached or deemed breached, and no condition shall be deemed not satisfied, as a result of (i) the failure to obtain any such Consent, (ii) any circumstances resulting therefrom or (iii) any suit, action or proceeding (a “Proceeding”) or investigation commenced or threatened by or on behalf of any person arising out of or relating to the failure to obtain any such Consent or any circumstances resulting therefrom.
(b) If any such Consent is not obtained prior to the Global Closing (with respect to the Global Transferred Assets) or the China Closing (with respect to the China Transferred Assets), the Global Closing or the China Closing, as applicable, shall nonetheless take place on the terms set forth herein and, thereafter, Purchaser shall use its reasonable best efforts to secure such Consent as promptly as practicable after the Global Closing or the China Closing, as applicable, and Seller shall provide or cause to be provided all commercially reasonable assistance to Purchaser (not including the payment of any consideration or concession of any right) reasonably requested by Purchaser to secure such Consent after the Global Closing or the China Closing, as applicable, or cooperate with Purchaser (at Purchaser’s expense) in any lawful and commercially reasonable arrangement reasonably proposed by Purchaser under which (i) Purchaser shall obtain (without infringing upon the legal rights of such third party or violating any Applicable Law) the economic claims, rights and benefits (net of the amount of any related Tax costs imposed on Seller, any of the Seller Affiliates or any of their respective affiliates) under the asset, claim or right with respect to which the Consent has not been obtained in accordance with this Agreement and (ii) Purchaser shall assume any related economic burden (including the terms and conditions amount of such arrangementsany related Tax costs imposed on Seller, any of the Seller Affiliates or any of their respective affiliates) with respect to the asset, claim or right with respect to which the Consent has not been obtained in accordance with this Agreement.
Appears in 1 contract
Consents to Certain Assignments. (ai) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Applicable Law to which any the Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers Seller or, upon transfer, the Buyers Buyer under such asset, permit, claim or right, unless . The Seller shall use its commercially reasonable efforts to obtain any consents or waivers required to assign to the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of Buyer any Asset that requires the consent or lack thereof of a third party, without any conditions to such transfer or changes or modifications of terms thereunder. If, with respect The Buyer agrees that the Seller shall not have any liability to the Buyer arising out of or relating to the failure to obtain any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not that may be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in connection with the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as transactions contemplated by this Agreement or because of any Ancillary Agreementcircumstances resulting therefrom. The Buyer further agrees that no representation, warranty or covenant of the Seller herein shall be breached or deemed breached, and no condition shall be deemed not satisfied, as a result of (i) the failure to obtain any such consent or any circumstances resulting therefrom or (ii) any suit, action, proceeding or investigation commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain any such consent or any circumstances resulting therefrom.
(bii) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any such consent is not obtained prior to Closing and as a result thereof the Buyers Buyer shall be prevented by a such third party from receiving the rights and benefits with respect to a Transferred such Asset intended to be transferred hereunder, (ii) or if any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers Seller thereunder so that the Buyers Buyer would not in fact receive all such rights or the Seller would forfeit or otherwise lose the benefit of rights and benefits contemplated or (iii) any Transferred Asset that the Seller is not otherwise capable of sale and/or assignment (after giving effect entitled to retain, the Confirmation Order Seller and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, Buyer shall cooperate with the Buyers in any lawful and commercially reasonable arrangement arrangement, as the Seller and the Buyer shall agree, under which the Buyers Buyer would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer; provided that all reasonable out-of-pocket expenses of such cooperation and related actions shall be paid by the Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers The Seller shall promptly pay to the Buyers Buyer when received all monies received by the applicable Sellers Seller under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers Buyer shall indemnify, defend, hold harmless indemnify and promptly pay the Sellers Seller for all Liabilities liabilities of the Sellers Seller associated with such arrangement in accordance with the terms and conditions of such arrangementsAsset.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything to the contrary contained in this Agreement or any Ancillary Agreement to the contraryAgreement, this Agreement and the shall not, nor shall any Ancillary Agreements shall not Agreement, constitute an agreement to transfer sell, transfer, assign or assign deliver, directly or indirectly, any assetTransferred Asset (including any Contract), permit, claim or any right or any benefit arising thereunder or resulting therefrom thereunder, if an attempted direct or indirect sale, transfer, assignment or delivery thereof, without the consent Consent of a third partyThird Party (including a Governmental Entity), would constitute a breach breach, default, violation or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect of the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim Third Party or right, unless the a violation of applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claimLaw, or right irrespective of the consent or lack thereof of a third party. If, would be ineffective with respect to any party to a Contract concerning such Transferred Asset. Purchaser agrees that, such consent is not obtained or such assignment is not attainable pursuant subject to compliance by Seller with the Bankruptcy Code or the Confirmation Orderprovisions of Section 2.03(b), then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any none of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers Seller or any of their respective its Affiliates shall have any liability whatsoever to make Purchaser arising out of or relating to the failure to obtain any payment (other than such Consent, and no representation, warranty or covenant of Seller herein shall be breached or deemed breached, and no condition shall be deemed not satisfied, as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement a result of such failure or any Ancillary AgreementProceeding or investigation commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain any such Consent.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any consent such Consent is not obtained prior to the Closing, the Closing shall nonetheless take place on the terms set forth herein and, thereafter, for a period of up to nine months following the Closing Date, each of Purchaser and Seller shall, and shall cause each of its applicable Affiliates to, use its respective commercially reasonable efforts to secure such Consent as promptly as practicable after the Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits cooperate in good faith (with each Party
(c) Schedule 2.03(c) sets forth, with respect to each Shared Contract, whether such Shared Contract will be (i) assigned to Purchaser at the Closing (which Shared Contract shall constitute a Transferred Asset intended to be transferred hereunderAsset), (ii) retained by Seller or its applicable Affiliate following the Closing (with no further obligation of Seller or any attempted assignment of a Transferred Asset would adversely affect its Affiliates to Purchaser or any of its Affiliates with respect to such Shared Contract from and after the rights of the Sellers thereunder so that the Buyers would not Closing, except as may be otherwise expressly provided in fact receive all the rights any Ancillary Agreement, and benefits contemplated which Shared Contract shall constitute an Excluded Asset) or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement under which the Buyers would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto addressed in accordance with this AgreementSection 2.03(c). Seller shall use its commercially reasonable efforts, for a period of no longer than nine months following the Closing, to cause each Shared Contract (other than any Shared Contract referred to in the immediately preceding clause (i) or (ii)) to be appropriately amended and new Contracts entered into after the Closing Date so that Purchaser shall be entitled to the economic interest, rights and benefits, and shall be responsible for any related economic liability or burden, relating to the Business thereunder and Seller or its applicable Affiliate shall be entitled to the economic interest, rights and benefits, and shall be responsible for any related economic liability or burden, relating to the balance of the subject matter of such Shared Contract. If any such Shared Contract cannot be so amended (and new Contracts cannot be entered into) within such period of time, or if either of the foregoing would impair the benefits that either Purchaser or Seller or their respective Affiliates would expect to derive from such amended Shared Contract, then the Parties shall cooperate with each other to obtain for Purchaser an arrangement to provide Purchaser with the benefits of such Shared Contract in some other manner, including by subcontracting, sublicensing or subleasing Seller entering into such lawful arrangements with Purchaser to place Purchaser in substantially the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under same economic and Liability position as of such Transferred Asset or any claim or right or any benefit arising thereunder amendments and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement new Contracts were entered into in accordance with the terms foregoing. Notwithstanding the foregoing, the obligations of Seller pursuant to this Section 2.03(c) shall not extend beyond the remaining term of the applicable Shared Contract as of the Closing Date.
(d) Nothing in this Section 2.03 shall require Seller or its Affiliates to make any payment, incur any obligation for which Purchaser has not assumed the liability or grant any concession in order to effect any transaction contemplated by this Section 2.03. This Section 2.03 shall not apply to the Transfer of any Transferred Marketing Authorization, as to which Section 6.14 shall control, or to any Prime Government Contract, as to which the Transition Services Agreement and conditions Section 6.22 shall control, and for the avoidance of doubt, such arrangementsarrangements under Section 6.14, Section 6.22 or the Transition Services Agreement shall not constitute an Alternative Arrangement hereunder.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Emergent BioSolutions Inc.)
Consents to Certain Assignments. (a) Notwithstanding anything in this This Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement assignment of any applicable Transferred Asset if a third party consent is required to transfer or assign any assetsuch asset until such consent is so obtained. During the period between the Closing Date and June 30, permit2006, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without each of the parties will continue to use its commercially reasonable efforts to obtain the consent of a all third partyparties to the sale, would constitute a breach or other contravention transfer and assignment to Buyer of all Transferred Assets hereunder to the extent required, including under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers Contract as set forth in Section 7.3 hereofSchedule 3.07 or, the Closing shall proceed with respect to the remaining extent required and reasonably requested by Buyer, any other Transferred Assets; provided that nothing Contract or Permit. Each of the parties shall pay its own expenses incurred in this Agreement or connection with obtaining any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreementsuch third party consents.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, Once any such consent is not obtained prior received, the Seller shall promptly fully transfer and deliver such Transferred Asset to Closing Buyer, in a form substantially similar to the assignment and as a result thereof the Buyers shall be prevented by assumption agreements delivered to Buyer at Closing; provided that with respect to any non-material Transferred Asset for which consent of a third party from receiving has not been obtained, Buyer shall accept the rights and benefits with respect to a assignment of such Transferred Asset intended at the Closing. If any such consent of a third party to be transferred the sale, transfer and assignment to Buyer of all Transferred Assets hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shallextent required
(c) The parties agree that, subject to any approval of Section 1.03(a), the Bankruptcy Court that may be required, at the written request of the Buyers, parties shall cooperate with the Buyers each other in any lawful and commercially reasonable arrangement reasonably proposed by the parties under which Buyer shall obtain (without infringing upon the Buyers would, to the extent practicable, obtain legal rights of any third party) the economic claims, rights and benefits under such asset and assume the economic burdens and obligations asset, claim or right with respect thereto to which the consent has not been obtained in accordance with this AgreementAgreement (including naming Buyer as an exclusive sales agent for the then-current term of the contract, including by subcontractingwithout extensions, sublicensing at a commission calculated to keep Buyer whole, sub-contracting, sub-licensing or subleasing sub-leasing to Buyer). The parties shall not be required to pay any consideration to any third party in order to obtain the applicable Buyer. Without limiting consent of such third party (including, without limitation, any third-party license fee).
(d) Under the foregoingsame terms and conditions as set forth in Sections 1.03(a) and 1.03(b) above, during Seller may seek consent to a partial assignment of a Transferred Contract if the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers rights under such Transferred Asset or any claim or right or any benefit arising thereunder Contract pertains to both the Acquired Businesses and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangementsRetained Business.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers Seller or, upon transfer, the Buyers Buyer under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, . Seller shall use its commercially reasonable efforts to obtain any consents or right irrespective of waivers required to assign to Buyer any Transferred Asset that requires the consent or lack thereof of a third party, without any conditions to such transfer or changes or modifications of terms thereunder. If, with respect Buyer agrees that the Seller shall not have any liability to the Buyer arising out of or relating to the failure to obtain any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not that may be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in connection with the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as transactions contemplated by this Agreement or because of any Ancillary Agreementcircumstances resulting therefrom. Buyer further agrees that no representation, warranty or covenant of Seller herein shall be breached or deemed breached, and no condition shall be deemed not satisfied, as a result of (i) the failure to obtain any such consent or any circumstances resulting therefrom or (ii) any suit, action, proceeding or investigation commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain any such consent or any circumstances resulting therefrom.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any such consent is not obtained prior to Closing and as a result thereof the Buyers Seller shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers Buyer (at Buyer’s expense) in any lawful and commercially reasonable arrangement reasonably proposed by Buyer under which (i) the Buyers would, to Buyer shall obtain (without infringing upon the extent practicable, obtain legal rights of such third party or violating any applicable Law) the economic claims, rights and benefits (net of the amount of any related tax costs imposed on Seller or any of its Affiliates) under such asset and assume the economic burdens and obligations asset, claim or right with respect thereto to which the consent has not been obtained in accordance with this Agreement and (ii) Buyer shall assume any related economic burden (including the amount of any related tax costs imposed on the Seller or any of its Affiliates) with respect to the asset, claim or right with respect to which the consent has not been obtained in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangements.
Appears in 1 contract
Samples: Asset Assignment and Purchase Agreement (Avid Bioservices, Inc.)
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall will not constitute an agreement to transfer or assign any asset, permit, Transferred Asset or any claim or right or any benefit arising thereunder under a Transferred Asset or resulting therefrom if such an attempted assignment thereofassignment, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, thereof or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers Seller or Purchaser under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the Seller will use its commercially reasonable efforts from and after the date of this Agreement to obtain the consent of any such third party for the assignment to Purchaser of any such Transferred Asset, including the consents set forth on Section 2.4 of the Sellers and the Buyers, any Disclosure Schedule. If such consent is has not been obtained prior to Closing and as a result thereof the Buyers shall be prevented by a third party from receiving consummation of the rights and benefits with respect to a Transferred Asset intended to be transferred hereunderClosing, (ii) any or if an attempted assignment of a Transferred Asset would, in Seller’s reasonable discretion, be ineffective or would adversely affect the rights of the Sellers Seller thereunder so that the Buyers Purchaser would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code)such rights, then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and Seller will use commercially reasonable arrangement under which efforts to provide Purchaser the Buyers would, benefits thereunder and Purchaser will assume the obligations thereunder (but only to the extent practicablesuch obligations relate to the benefits that Seller actually provides to Purchaser and that would have constituted Assumed Liabilities if such assignment occurred on the Closing Date) from and after the consummation of the Closing.
(c) Seller is not obligated to seek consents prior to the consummation of the Closing. If and when any such consents will be obtained after the consummation of the Closing, obtain Seller will promptly assign its rights thereunder to Purchaser without payment of consideration and Purchaser will, without payment of any additional consideration, assume from and after the economic claimsdate of such assignment the obligations thereunder (but only the obligations of Seller thereunder arising exclusively from, rights and benefits under such asset and assume the economic burdens and obligations accruing exclusively with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Periodto, the Sellers shall promptly pay to period after the Buyers when received all monies received by the applicable Sellers under date of such Transferred Asset or any claim or right or any benefit assignment (other than obligations thereunder arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities as a result of the Sellers associated with breach thereof at or prior to such arrangement in accordance with the terms and conditions of such arrangementsassignment)).
Appears in 1 contract
Samples: Asset Purchase Agreement (Catalyst Biosciences, Inc.)
Consents to Certain Assignments. (a) Notwithstanding anything in this This Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to sell, transfer or assign assign, directly or indirectly, any assetTransferred Asset, permit, claim or right or any benefit arising thereunder thereunder, if the direct or resulting therefrom if an attempted indirect sale, transfer or assignment thereof, without the consent of a third partyparty (including a Governmental Entity), would constitute a breach breach, default, violation or other contravention under of the rights of such third party, would be ineffective with respect to any agreement party to a Contract concerning such Transferred Asset or Law to which any Seller is a party or by which it is bound, or in any way would adversely affect the rights of the Sellers Seller or, upon transfer, the Buyers Purchaser under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset. Purchaser agrees that, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers except as set forth in Section 7.3 hereof1.03(b), the Closing Seller shall proceed with respect have no liability whatsoever to Purchaser arising out of or relating to the remaining Transferred Assets; provided that nothing in this Agreement failure to obtain any such consent, and no representation, warranty or covenant of Seller herein shall be breached or deemed breached, and no condition shall be deemed not satisfied (other than, if applicable by its express terms, Section 7.02(d)), as a result of such failure or any Ancillary Agreement shall require any Sellersuit, the Buyers action, petition or any commencement of their respective Affiliates to make any payment an arbitral or judicial proceeding (other than as required in the applicable contract or permit or in the Chapter 11 Planeach, a “Proceeding”) or initiate investigation commenced or threatened by or on behalf of any Action (other than Actions for relief from person arising out of or relating to the Bankruptcy Court) failure to transfer obtain any Transferred Asset as contemplated by this Agreement or any Ancillary Agreementsuch consent.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any such consent is not obtained prior to Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shallClosing, subject to any approval satisfaction of the Bankruptcy Court that may conditions to Closing set forth in Article VII, the Closing shall nonetheless take place on the terms set forth herein and, thereafter, Purchaser shall use commercially reasonable efforts to secure such consent as promptly as practicable after the Closing (not including the giving by Seller or Purchaser of any consideration), and Seller shall provide or cause to be requiredprovided all commercially reasonable assistance to Purchaser reasonably requested by Purchaser to secure such consent, at the written request of the Buyers, or cooperate with the Buyers Purchaser (at Purchaser’s expense) in any lawful and commercially reasonable arrangement reasonably proposed by Purchaser under which (i) Purchaser shall obtain (without infringing upon the Buyers would, to the extent practicable, obtain legal rights of such third party or violating any Law) the economic claims, rights and benefits (net of the amount of any related Tax costs imposed on Seller or its affiliates) under such asset and assume the economic burdens and obligations Transferred Asset with respect thereto in accordance to which the consent has not been obtained and (ii) Purchaser shall assume any related economic burden (including the amount of any related Tax costs imposed on Seller or its affiliates) with this Agreement, including by subcontracting, sublicensing or subleasing respect to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and Asset. Following the Buyers Closing, until such consent is obtained, (x) Purchaser shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance comply with the terms of any Contract constituting a Transferred Asset that has not yet been transferred or assigned due to the failure to receive such consent as if such Contract had been so transferred or assigned, (y) Seller will cooperate with Purchaser’s commercially reasonable requests to enforce Seller’s rights arising under such Contract, at the cost and conditions for the benefit of Purchaser, against any third party to such Contract arising out of the breach or cancellation of such arrangementsContract by such third-party or any other person, and (z) any amount received by Seller in respect of any such Contract for the period commencing on the Closing Date shall be held by the Seller in a constructive trust for the benefit of, and promptly paid over to, Purchaser.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything Nothing in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute be construed as an agreement to transfer or assign any assetContract or other Transferred Asset that by its terms or pursuant to applicable Law is not capable of being sold, permitassigned, claim transferred or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, delivered without the consent or waiver of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is boundGovernmental Authority unless and until such consent or waiver shall be given. The Sellers shall use their commercially reasonable efforts, or in any way adversely affect the rights of the Sellers or, upon transfer, and the Buyers under shall cooperate reasonably with the Sellers, to obtain such asset, permit, claim or right, unless consents and waivers and to resolve the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant impediments to the Bankruptcy Code sale, assignment, transfer or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as delivery contemplated by this Agreement or the Ancillary Agreements and to obtain any Ancillary Agreement.
(b) If (i) notwithstanding other consents and waivers necessary to convey to the applicable provisions of Sections 363 and 365 Buyers all of the Bankruptcy Code Transferred Assets. If the Sellers fail to obtain any of the Required Consents on or prior to the Closing, and the Confirmation Order and Buyers consummate the commercially reasonable efforts of transactions contemplated hereby, the Sellers and Buyers shall be deemed to have waived any claim to indemnification under Article VIII based upon the Buyers, failure to obtain such Required Consent on or prior to the Closing. In the event any consent is such consents or waivers are not obtained prior to the Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down PeriodDate, the Sellers shallshall continue to use their commercially reasonable efforts to obtain the relevant consents or waivers after the Closing Date, subject to any approval of and the Bankruptcy Court that may be required, at the written request of the Buyers, Sellers will cooperate with the Buyers in any lawful and commercially reasonable economically feasible arrangement under which to provide that the Buyers wouldshall receive the interest of the Sellers in the benefits under any such Contract or other Transferred Asset, including performance by the Sellers, if economically feasible, as agent; provided that the Buyers shall pay or satisfy the corresponding liabilities for the enjoyment of such benefit to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by would have been responsible therefor hereunder if such consents or waivers had been obtained. Nothing in this Section 2.5 shall affect the applicable Sellers Buyers’ right to terminate this Agreement under such Transferred Asset Section 9.1 or affect the Buyers’ conditions to Closing under Section 7.3(c) in the event that any claim consent or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangementswaiver as described herein is not obtained.
Appears in 1 contract
Samples: Asset Purchase Agreement (Martha Stewart Living Omnimedia Inc)
Consents to Certain Assignments. (a) Prior to the Closing, Seller will provide or cause to be provided all commercially reasonable assistance to Purchaser (not including the payment of any consideration or concession of any right) reasonably requested by Purchaser to secure any consent or authorization that is required from any third party in connection with the applicable transactions contemplated hereby. Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any assetassign, permit, claim directly or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyersindirectly, any consent is not obtained prior to Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement under which the Buyers would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and under or resulting from such asset if an attempted direct or indirect assignment thereof, without the Buyers shall indemnifyconsent, defendapproval or authorization (“Consent”) of a third party, hold harmless and promptly pay the Sellers for all Liabilities would constitute a breach, default, violation or other contravention of the Sellers associated rights of such third party, would be ineffective with respect to any party to an agreement concerning such asset, claim or right, or would in any way adversely affect the rights of Seller or any of the Seller Affiliates or, upon transfer, Purchaser under such asset, claim or right. If any direct or indirect transfer or assignment by Seller or any of the Seller Affiliates to Purchaser, or any direct or indirect acquisition or assumption by Purchaser of, any interest in, or liability, obligation or commitment under, any asset, claim or right requires the Consent of a third party, then such transfer or assignment or assumption shall be made subject to such Consent being obtained. Purchaser agrees that neither Seller nor any of the Seller Affiliates shall have any liability whatsoever to Purchaser arising out of or relating to the failure to obtain any such Consent that may be required in connection with the transactions contemplated by this Agreement or because of any circumstances resulting therefrom. Purchaser further agrees that no representation, warranty or covenant of Seller herein shall be breached or deemed breached, and no condition shall be deemed not satisfied, as a result of (i) the failure to obtain any such Consent, (ii) any circumstances resulting therefrom or (iii) any suit, action or proceeding (a “Proceeding”) or investigation commenced or threatened by or on behalf of any person arising out of or relating to the failure to obtain any such Consent or any circumstances resulting therefrom.
(b) If any such Consent is not obtained prior to the Closing, the Closing shall nonetheless take place on the terms set forth herein and, thereafter, Purchaser and Seller shall use their respective reasonable best efforts to secure such Consent as promptly as practicable after the Closing and Seller shall provide or cause to be provided all commercially reasonable assistance to Purchaser (not including the payment of any consideration or concession of any right) reasonably requested by Purchaser to secure such Consent after the Closing or cooperate with Purchaser (at Purchaser’s expense) in any lawful and commercially reasonable arrangement reasonably proposed by Purchaser under which (i) Purchaser shall obtain (without infringing upon the legal rights of such third party or violating any Applicable Law) the economic claims, rights and benefits (net of the amount of any related Tax costs imposed on Seller, any of the Seller Affiliates or any of their respective affiliates) under the asset, claim or right with respect to which the Consent has not been obtained in accordance with this Agreement and (ii) Purchaser shall assume any related economic burden (including the terms and conditions amount of such arrangementsany related Tax costs imposed on Seller, any of the Seller Affiliates or any of their respective affiliates) with respect to the asset, claim or right with respect to which the Consent has not been obtained in accordance with this Agreement.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Sale Order and the commercially reasonable efforts of the Sellers Selling Entities and the BuyersBuyer pursuant to Section 2.5(e), any consent Consent or Governmental Authorization is not obtained prior to Closing and as a result thereof the Buyers Buyer shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Purchased Asset intended to be transferred hereunder, or (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Purchased Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Sale Order and the Bankruptcy Code), then, in each any such case, during the Wind-Down Period, the Sellers Selling Entities shall, prior to the closing of the Bankruptcy Case and subject to any approval of the Bankruptcy Court that may be required, required and at the written request of the BuyersBuyer, cooperate with the Buyers Buyer in any lawful and commercially reasonable arrangement under which the Buyers Buyer would, to the extent practicable, obtain (for no additional cost or consideration) the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer, and the Buyer shall assume any related burden and obligation with respect to such Purchased Asset to the extent such burden and obligation would constitute an Assumed Liability if such Purchased Asset was transferred at Closing; provided, that the Selling Entities’ cooperation obligations contemplated by this Section 2.6 shall not include any obligation by any Selling Entity or any of its Affiliates to pay money (advance or otherwise) to any third party or to incur out-of- pocket expenses unless the Buyer funds such amounts. Without limiting The Buyer shall cooperate with the foregoing, during Selling Entities in order to enable the Wind-Down Period, Selling Entities to provide to the Sellers Buyer the benefits contemplated by this Section 2.6. The Selling Entities shall as promptly as practicable pay to the Buyers Buyer when received all monies received by the applicable Sellers under Selling Entities attributable to such Transferred Purchased Asset or any claim or right or any benefit arising thereunder from and after the Closing Date and the Buyers Buyer shall indemnify, defend, hold harmless and promptly pay the Sellers Selling Entities for all Liabilities reasonable and documented out-of-pocket costs incurred by the applicable Selling Entities associated with, arising or resulting from such arrangement.
b) Without limiting anything contained in this Section 2.6, from and after the Closing and until the receipt of all consents or approvals required to effect the transfer (by novation or assignment or otherwise) of each of the Sellers associated with contracts set forth on Section 2.6(b) of the Seller Disclosure Schedule (the “Specified Contracts” and such arrangement transfers, the “Specified Contract Assignments”) in accordance with this Section 2.6(b): (i) the terms Parties undertake and conditions agree to, as promptly as practicable and advisable, negotiate in good faith and take or cause to be taken all actions, and to do or cause to be done all things necessary, proper or advisable on their respective parts to execute and enter into a Subcontract Agreement Pending Novation (the “Subcontract Agreement Pending Novation”) concerning the disposition of the Specified Contracts not yet assigned at Closing; and (ii) the Parties shall use commercially reasonable efforts to obtain any consents or approvals of any Governmental Authority, including by jointly preparing, in accordance with 48 C.F.R. Subpart 42.12, and any applicable agency regulations or policies, written requests meeting the requirements of 48 C.F.R. Subpart 42.12, as reasonably interpreted by the applicable responsible contracting officer (as such term is used in 48 C.F.R. Subpart 42.1202, each, a “Responsible Contracting Officer”), which shall be in form and substance reasonably satisfactory to the Parties and which shall be submitted by the applicable Selling Entity to the applicable Responsible Contracting Officer to (A) recognize the Buyer as such Selling Entity’s successor-in-interest to each such Specified Contract, and (B) enter into one or more novation agreements, and such other documents as the applicable Governmental Authorities may require, in form and substance reasonably satisfactory to the Parties, pursuant to which, subject to the requirements of 48 C.F.R Subpart 42.12, all of such arrangementsSelling Entity’s right, title and interest in and to, and all of such Selling Entity’s obligations and liabilities under, such Specified Contract shall be validly conveyed, transferred and assigned and novated to the Buyer, in each case in order to permit the Specified Contract Assignments as promptly as reasonably practicable following the Closing.
c) To the extent that the Buyer has not obtained all of the Permits included in the Purchased Assets that are necessary for the Buyer to take title to all of the Purchased Assets at the Closing and to operate all aspects of Purchased Assets as of immediately following the Closing in a substantially similar manner in all material respects as it was operated by the Selling Entities immediately prior to Closing, the Selling Entities shall, to the extent permitted by applicable Laws, use commercially reasonable efforts to maintain after the Closing such Permits that the Buyer reasonably requests, at the Buyer’s sole expense, until the earlier of the time the Buyer has obtained such Permits and six (6) months following the Closing (or the remaining term of any such Permit or the closing of the Bankruptcy Case, if shorter).
Appears in 1 contract
Samples: Asset Purchase Agreement (Virgin Orbit Holdings, Inc.)
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall does not constitute an agreement to transfer or assign any asset, permit, asset (including any Contract) or any claim or right or any benefit arising thereunder under or resulting therefrom from such asset if an attempted direct or indirect assignment thereof, without the consent of a third party, would constitute a breach breach, default, violation or other contravention under of the rights of such third party, would be ineffective with respect to any party to an agreement concerning such asset, claim or Law to which any Seller is a party or by which it is boundright, or would in any way adversely affect the rights of the Sellers Seller or, upon transfer, the Buyers Purchaser under such asset, permitclaim or right. If any transfer or assignment by Seller to Purchaser, or any direct or indirect assumption by Purchaser, of any interest in, or liability, obligation or commitment under, any asset, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of requires the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not transfer or assignment or assumption must be transferred hereunder, and, without prejudice made subject to any of the conditions such consent being obtained. Prior to the obligations Closing, Seller shall provide or cause to be provided all commercially reasonable assistance to Purchaser (not including the payment of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect any consideration) reasonably requested by Purchaser to the remaining Transferred Assets; provided that nothing in this Agreement or secure any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief such consents from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreementthird parties.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any consent to assignment is not obtained prior to the Closing, the Closing will nonetheless take place on the terms set forth in this Agreement and, thereafter, Seller and Purchaser shall use their respective commercially reasonable efforts to secure such consent as promptly as practicable after the Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement reasonably proposed by Purchaser under which (i) Purchaser will obtain (without infringing upon the Buyers would, to the extent practicable, obtain legal rights of such third party or violating any applicable Law) the economic claims, rights and benefits (net of the amount of any related Tax costs (which shall be reduced by any related Tax benefits) imposed on Seller or any of its Affiliates (except for any such Tax costs that are Excluded Taxes)) under such asset and assume the economic burdens and obligations asset, claim or right with respect thereto to which the consent has not been obtained in accordance with this Agreement and (ii) Purchaser will assume any related economic burden (including the amount of any related Tax costs (which shall be reduced by any related Tax benefits) imposed on Seller or any of its Affiliates (except for any such Tax costs that are Excluded Taxes)) with respect to the asset, claim or right with respect to which the consent has not been obtained in accordance with this Agreement.
(c) Subject to Seller’s compliance with this Section 2.3, including by subcontracting, sublicensing (i) Seller will have no liability whatsoever to Purchaser arising out of or subleasing relating to the applicable Buyer. Without limiting failure to obtain any consent that may be required in connection with the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received transactions contemplated by the applicable Sellers under such Transferred Asset this Agreement or because of any claim circumstances arising therefrom unless on account of a breach or right or inaccuracy of any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with representations and warranties set forth in Article 4 or Section 13.1 and (ii) Purchaser shall not consider or deem any covenant of Seller breached as a result of (x) the failure to obtain any such arrangement in accordance with consent, (y) any circumstances resulting therefrom or (z) any Proceeding or investigation commenced or threatened by or on behalf of any person arising out of the terms and conditions of failure to obtain any such arrangementsconsent.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Transactional Agreement to the contrary, this Agreement and the Ancillary Transactional Agreements shall not constitute an agreement to transfer or assign any asset, contract, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent Approval of a third party, would constitute a breach or other contravention under any contract, agreement or Law to which any the Seller is a party or by which it is boundbound unless and until such Approval shall be given. The Seller shall use its commercially reasonable efforts, or in at Buyer’s sole cost and expense, to obtain any way adversely affect Approvals required to assign to the rights of Buyer any Asset that requires the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof Approval of a third partyparty (including attempting to obtain all Approvals set forth on Schedule 3.8(a)), without any changes or modifications of terms thereunder as promptly as reasonably practicable, and within forty-five (45) days after the Closing. IfWithout limiting the foregoing, with respect within two business days after the Closing, Seller shall contact each of Seller’s clients to any Transferred Asset, such obtain a written consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice assignment by Seller to any Buyer of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset Assigned Contracts as contemplated by this Agreement Agreement. Buyer shall cooperate and use all commercially reasonable efforts to assist Seller in giving such notices and obtaining such Approvals; provided, however, that Buyer shall not have any obligation to give any guarantee or other consideration of any Ancillary Agreementnature in connection with any such notice or Approval or to consent to any change in the terms of any agreement or arrangement. Buyer and Seller shall cooperate with each other and take such other actions as may be reasonably required to expeditiously obtain all such Approvals contemplated by this section.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any consent is such Approvals are not obtained prior to the Closing or are not obtained after the Closing (including within such 45 day time period specified above), and as a result thereof the Buyers Buyer shall be prevented by a such third party from receiving the rights and benefits with respect to a Transferred such Asset intended to be transferred hereunder, then such failure to receive such Approvals shall not be a breach of this Agreement (ii) any attempted assignment of and shall not give rise to a Transferred Asset would adversely affect claim for indemnity hereunder by the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order Buyer Indemnified Parties), and the Bankruptcy Code), then, in each case, during Seller and the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, Buyer shall cooperate with the Buyers in any lawful and commercially reasonable arrangement as the Seller and the Buyer shall agree, under which the Buyers Buyer would, to the extent practicable, obtain the economic claims, rights and benefits under such asset Asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable BuyerBuyer (it being agreed that the inability of Seller and Buyer to enter into such arrangements shall not give rise to a claim for indemnity hereunder by the Buyer Indemnified Parties, and any cancellation of an Assigned Contract or any Claim made by a third party as a result of the Buyer and the Seller entering into any such arrangements after the Closing shall not give rise to a claim for indemnity hereunder by the Buyer Indemnified Parties). Without limiting the foregoing, during the Wind-Down Period, the Sellers The Seller shall promptly pay to the Buyers Buyer when received all monies received by the applicable Sellers under Seller with respect to any such Transferred Asset Asset(s) or any claim or right or any benefit arising thereunder and the Buyers Buyer shall indemnify, defend, hold harmless and promptly pay the Sellers Seller for, or otherwise satisfy, all corresponding Liabilities for all Liabilities the enjoyment of such claim, right or benefit to the extent the Buyer would have been responsible therefor hereunder if such Approvals as described herein had been obtained. With respect to any Contracts that are subcontracted, sublicensed or subleased to the Seller (if any) (the “Subcontracted Work”), then for the period beginning on the Closing Date and ending on the receipt of the Sellers associated with such arrangement applicable required Approval, Buyer agrees to diligently perform and discharge the obligations of Seller in accordance connection with the terms Subcontracted Work and conditions with respect to such Contract, directly or indirectly, as applicable, through Seller. As of the date hereof, Buyer has requested and Seller has agreed to subcontract its rights and obligations under that certain Energy Performance Contract dated as of April 28, 2014 between Seller and Xxxxxx County (as may be amended from time to time, together with all exhibits schedules and addenda, as may be amended, the “Xxxxxx County Contract”) to Buyer and will do so pursuant to a subcontract agreement in customary and reasonable form acceptable to the Parties. In addition, after the Closing, Buyer and Seller may, if agreed by the Parties, enter into an Employee Leasing Agreement (the “Employee Leasing Agreement”) whereby, after the Closing Date, Buyer will lease the services of the Continuing Employees to Seller so that Seller may perform, on a case-by-case basis approved by Buyer and Seller, certain work under contracts (including under certain contracts for which Approvals have not yet been obtained or for which Buyer requests (and Seller agrees) that Seller complete the existing work under the current contract, rather than such arrangementscontract being assigned by Buyer to Seller) relating to the Business (collectively, “Leased Employment Work”).
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Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall will not constitute an agreement to transfer or assign assign, directly or indirectly, any asset, permit, claim asset (including any Contract) or any Claim or right or any benefit arising thereunder under or resulting therefrom from such asset if an attempted direct or indirect transfer or assignment thereof, without the consent consent, approval or authorization (“Consent”) of a third party, would constitute a breach breach, default, violation or other contravention under of the rights of such third party, would be ineffective with respect to any party to an agreement concerning such asset, Claim or Law to which any Seller is a party right or by which it is bound, or would in any way adversely affect the rights of Seller or any of the Sellers Seller Parties or, upon transfer, the Buyers Purchaser under such asset, permit, claim Claim or right, unless the applicable provisions . If any transfer or assignment by Seller or any of the Bankruptcy Code permits and/or the Confirmation Order authorizes the Seller Parties to Purchaser of, or any direct or indirect acquisition or assumption and assignment of such by Purchaser of, any interest in, or Liability under, any asset, permit, claim, Claim or right irrespective of requires the consent or lack thereof Consent of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset transfer, assignment, acquisition or assumption will be made subject to such Consent being obtained. Prior to the Closing, each of Seller and Purchaser shall provide or cause to be provided all commercially reasonable assistance to the other party (not be transferred hereunderincluding the payment of any consideration) reasonably requested by such other party to secure any such Consent. Except as expressly set forth in this Agreement, and, without prejudice to neither Seller nor any of the conditions Seller Parties will have any liability whatsoever to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers Purchaser or any of their respective Affiliates the Purchaser Parties arising out of or relating to make the failure to obtain any payment (other than as required in the applicable contract such Consent or permit or in the Chapter 11 Plan) or initiate because of any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreementcircumstances resulting therefrom.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, any consent such Consent is not obtained prior before the Closing, the Closing will (subject to Article VII) nonetheless take place on the terms set forth in this Agreement and, thereafter, each of Purchaser and Seller will use its reasonable best efforts to secure such Consent as promptly as practicable after the Closing (not including the payment of any consideration) to secure such Consent as soon as practicable after the Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, cooperate at the written request of the Buyers, cooperate with the Buyers Purchaser’s expense in any lawful and commercially reasonable arrangement reasonably proposed by Purchaser under which (i) Purchaser will obtain (without infringing upon the Buyers would, to the extent practicable, obtain legal rights of such third party or violating any Applicable Law) the economic claims, rights and benefits under such asset and assume the economic burdens and obligations asset, Claim or right with respect thereto to which the Consent has not been obtained in accordance with this Agreement and (ii) Purchaser will assume any related economic burden with respect to the asset, Claim or right with respect to which the Consent has not been obtained in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangements.
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Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or The Buyer agrees that the Seller shall not have any Ancillary Agreement liability to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer Buyer arising out of or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant relating to the Bankruptcy Code or the Confirmation Orderfailure to obtain any consent, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers including as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided 2.5(b) that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as may be required in connection with the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as transactions contemplated by this Agreement or the Ancillary Agreements or because of any Ancillary Agreementcircumstances resulting therefrom.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the Buyers, LFA Approval with respect to any consent Franchise is not obtained prior to Closing and as a result thereof the Buyers Buyer shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset such Franchise intended to be transferred hereunder, (ii) or if any attempted transfer or assignment of a Transferred Asset would adversely affect the rights of the Sellers Seller thereunder so that the Buyers Buyer would not in fact receive all such rights or the Seller would forfeit or otherwise lose the benefit of rights and benefits contemplated or that the Seller is entitled to retain, then such Franchise (iiieach, a “Retained Franchise”) any Transferred Asset is shall not otherwise capable of sale and/or assignment (after giving effect be transferred to the Confirmation Order Buyer at Closing, and the Bankruptcy Code)Seller and the Buyer shall execute a retained franchise management agreement on terms to be agreed upon in good faith by the Buyer and Seller (each, then, in a “Retained Franchise Management Agreement”) with respect to each case, during Retained Franchise. Each Retained Franchise Management Agreement shall provide that the Wind-Down Period, Buyer shall manage such Retained Franchise on behalf of the Sellers shallappropriate System, subject to any approval of the Bankruptcy Court that may be required, at following: (A) the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement under which the Buyers would, Buyer shall bear all expenses relating to the extent practicable, obtain Retained Franchise and the economic claims, rights operation thereof and benefits shall receive the net cash flow from the Systems served under the Retained Franchise as its management fee and (B) such asset and assume the economic burdens and obligations management shall continue with respect thereto to such Retained Franchise until such time as such Retained Franchise is assigned and transferred to the Buyer in accordance with this AgreementAgreement or is revoked. The Seller shall transfer, including by subcontracting, sublicensing or subleasing at no additional cost to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay each Retained Franchise to the Buyers when Buyer within 10 days after the LFA Approval for such transfer is received all monies (or deemed to have been received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with Section 617 of the terms Communications Act (47 U.S.C. Section 537)), or six months following the Closing, whichever is sooner. In the event that the Buyer is legally prohibited from managing any Retained Franchise, the Buyer and conditions the Seller shall negotiate in good faith to resolve the management thereof to preserve the purpose and intent of this Section 2.5(b). The Base Purchase Price shall not be reduced in respect of any Franchise not transferred at the Closing, and any adjustments to the Base Purchase Price pursuant to this Agreement shall be made as of the Closing Time as if the Retained Franchises were transferred at the Closing. In addition, the Buyer shall become liable for the Assumed Liabilities with respect to the Retained Franchises as of the Closing Time, and all representations and warranties (except as to those Required Consents that have not been obtained) made in connection with the Retained Franchises shall be made as of the Closing Date rather than any subsequent transfer date. The Buyer shall pay the expenses of defending any legal challenges alleging the premature, unlawful or invalid transfer of any of the Franchises, including reasonable attorneys’ fees and consultants’ fees as well as the actual amount of any judgments obtained by a Governmental Authority resulting from (i) the transfer of any such Franchise without proper consent, or (ii) any action taken by the Buyer as manager and any amounts paid to reinstate any such Franchise revoked (except in the case of an Expired Franchise, in which case Seller shall pay all such expenses). If a Retained Franchise is revoked for any reason, there shall be no compensation or other remuneration paid by any party to another party as a result of such arrangementsrevocation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Atlantic Broadband Finance, LLC)
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any the Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers Seller or, upon transfer, the Buyers Buyer under such asset, permit, claim or right, unless . The Seller shall consult with the applicable provisions of Buyer and use its commercially reasonable efforts to obtain any consents or waivers required to assign to the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of Buyer any Transferred Asset that requires the consent or lack thereof of a third party, without any conditions to such transfer or changes or modifications of terms thereunder. IfOther than obtaining the Material Closing Consents and the Material Post-Closing Consents, with respect the Buyer agrees that the Seller shall not have any Liability to the Buyer arising out of or relating to the failure to obtain any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Order, then such Transferred Asset shall not that may be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in connection with the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as transactions contemplated by this Agreement or the Ancillary Agreements or because of any Ancillary Agreementcircumstances resulting therefrom. The Buyer further agrees that no representation, warranty or covenant of the Seller herein shall be breached or deemed breached, and, other than with respect to the Material Closing Consents and the Material Post-Closing Consents, no condition shall be deemed not satisfied, as a result of (i) the failure to obtain any such consent or any circumstances resulting therefrom or (ii) any suit, action, proceeding or investigation commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain any such consent or any circumstances resulting therefrom.
(b) If (i) notwithstanding Other than the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Order and the commercially reasonable efforts of the Sellers and the BuyersMaterial Closing Consents, if any such consent is not obtained prior to the Closing for a Transferred Contract, the Closing shall nonetheless take place on the terms set forth herein and, thereafter, the Buyer shall use its commercially reasonable efforts (for clarity, not requiring the payment of any consideration by the Seller) to secure such assignment and consent for each Material Post-Closing Consent as promptly as practicable after the Closing but no later than the applicable TSA Services Termination Date related to such Transferred Contract; provided, that if the Buyer delivers to the Seller a result thereof Transferred Contract Termination Notice, then the Buyers Seller shall be prevented by a third party from receiving the rights and benefits have no further responsibility under this Section 2.5(b) with respect to a such Transferred Asset intended Contract set forth in the Transferred Contract Termination Notice and the Buyer shall pay any applicable termination fees or expenses. Upon obtaining any consents pursuant to this Section 2.5(b), such Transferred Contract shall promptly be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights and assigned to Buyer hereunder at no additional cost to Buyer and with such effect as if transferred as of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement under which the Buyers would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Period, the Sellers shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangementsClosing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Atara Biotherapeutics, Inc.)
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to transfer or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Sale Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable pursuant to the Bankruptcy Code or the Confirmation Sale Order, then such Transferred Asset shall not be transferred hereunder, and, without prejudice to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, and the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or Assets and the Sellers shall use their reasonable best efforts (which efforts will be subject to any Ancillary Agreement shall require any Sellerwinding-down of operations and related capabilities of the Sellers post-Closing), and the Buyers shall cooperate with the Sellers, to obtain any such consent and to resolve the impracticalities of assignment after the Closing, provided, that the Sellers shall not have any liability to the Buyers arising out of or relating to the failure to obtain any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreementsuch consent on a post-Closing basis.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Confirmation Sale Order and the commercially reasonable best efforts of the Sellers and the BuyersSellers, any consent is not obtained prior to Closing and as a result thereof the Buyers shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated contemplated, or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Confirmation Sale Order and the Bankruptcy Code), then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, Buyers cooperate with the Buyers in any lawful and commercially reasonable arrangement under which the Buyers would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable BuyerBuyers; provided, that all reasonable out-of-pocket expenses of such cooperation and related actions shall be paid by the Buyers. Without limiting the foregoing, during the Wind-Down Period, the Sellers Seller Parent shall promptly pay to the Buyers when received all monies received by the applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless indemnify and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangementsarrangement, if requested.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement Without limiting the effect of Section 6.4 or any Ancillary Agreement to Section 6.13, the contrary, this Agreement Buyer and the Ancillary Sellers agree that there shall be excluded from the Purchased Assets any Assumed Agreements shall that are not constitute an agreement to transfer assignable or assign any asset, permit, claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party, would constitute a breach or other contravention under any agreement or Law to which any Seller is a party or by which it is bound, or in any way adversely affect the rights of the Sellers or, upon transfer, the Buyers under such asset, permit, claim or right, unless the applicable provisions of the Bankruptcy Code permits and/or the Confirmation Order authorizes the assumption and assignment of such asset, permit, claim, or right irrespective of the consent or lack thereof of a third party. If, with respect to any Transferred Asset, such consent is not obtained or such assignment is not attainable transferable pursuant to the Bankruptcy Code or otherwise without the Confirmation Orderconsent of any Person other than the Sellers or any Affiliate of the Sellers, then to the extent that such Transferred Asset consent shall not be transferred hereunderhave been given prior to the Closing; provided, andhowever, that the Sellers shall have the continuing obligation (both before and after the Closing) to use all commercially reasonable efforts (including, without prejudice limitation, prosecution of appropriate motions pursuant to any of the conditions to the obligations of the Buyers as set forth in Section 7.3 hereof, the Closing shall proceed with respect to the remaining Transferred Assets; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyers or any of their respective Affiliates to make any payment (other than as required in the applicable contract or permit or in the Chapter 11 Plan) or initiate any Action (other than Actions for relief from the Bankruptcy Court) to transfer any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and Code) to endeavor to obtain all necessary consents to the Confirmation Order and assignment thereof and, upon obtaining the commercially reasonable efforts of the Sellers and the Buyersrequisite Third Party consents thereto, any consent is not obtained prior to Closing and as a result thereof the Buyers such Assumed Agreement shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyers would not in fact receive all the rights and benefits contemplated or (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect assigned to the Confirmation Order Buyer at no cost free and clear of all Liens other than the Bankruptcy Code)Permitted Liens; provided, then, in each case, during the Wind-Down Period, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyers, cooperate with the Buyers in any lawful and commercially reasonable arrangement under which the Buyers would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the applicable Buyer. Without limiting the foregoing, during the Wind-Down Periodthat, the Sellers shall promptly pay not be required to incur any unreasonable costs or make any material payment to any Third Party (other than cure costs) to obtain any consent. With respect to any Assumed Agreement which is not transferred at the Closing as contemplated by the immediately preceding sentence, effective as of the Closing, the Sellers shall enter into arrangements reasonably requested by the Buyer designed to provide the Buyer the full and exclusive benefits of such asset (as between the Buyer and the Sellers) provided the Buyer assumes the duty to perform the obligations relating to such Assumed Agreements accruing on and after the Closing (and provides indemnification to the Buyers when received all monies received by Sellers with respect thereto). If and to the extent such arrangements cannot be made, the Buyer shall have no obligation with respect to such Assumed Agreement. For the avoidance of doubt, this Section 2.8 shall not be applicable Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyers shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement in accordance with the terms and conditions of such arrangementsto Servicing Rights.
Appears in 1 contract
