Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to assign, directly or indirectly, any asset or any claim or right or any benefit arising under or resulting from such asset if an attempted direct or indirect assignment thereof, without the consent of a third party, would constitute a breach, default, violation or other contravention of the 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, upon transfer, Purchaser under such asset, claim 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 requires the consent of a third party, then such transfer or assignment or assumption shall be made subject to such consent being obtained, and thereafter, Seller shall use its reasonable best efforts to obtain such consent. (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 cooperate (each at its own expense) in any lawful and commercially reasonable arrangement proposed by Purchaser under which (i) Purchaser shall obtain (to the maximum extent possible without infringing upon the legal rights of such third party or violating any Applicable Law (as defined in Section 13.05(b)) the economic claims, rights and benefits (net of the amount of any related Tax (as defined in Section 13.05(b)) costs imposed on Seller or any of its affiliates to the extent not assumed pursuant to clause (ii) below) 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 amount of any related Tax costs imposed on 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.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Potlatchdeltic Corp)
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to assign, directly or indirectly, assign any asset or any claim or right or any benefit arising under or resulting from such asset if an attempted direct or indirect assignment thereof, without the consent of a third partyparty (a “Third Party Consent”), would constitute a breach, default, violation or other contravention of the 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, upon transfer, Purchaser under such asset, claim 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 requires the consent of a third partyThird Party Consent, then such transfer or assignment or assumption shall be made subject to such consent Third Party Consent being obtained, and thereafter, Seller shall use its reasonable best efforts to obtain such consent.
(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 cooperate use their respective commercially reasonable efforts to secure all consents listed on Schedule 3.03 that have not been obtained prior to Closing as promptly as practicable after the Closing (each at its own expenseit being understood that nothing in this Section 1.03(b) shall require Purchaser to waive the conditions to Closing set forth in any Sections 7.01(c) and (d). Subject to obtaining such consents, Seller and Purchaser shall endeavor to secure lawful and commercially reasonable arrangement proposed by Purchaser arrangements under which (i) Purchaser shall obtain (to the maximum extent possible without infringing upon the legal rights of such third party or violating any Applicable Law (as defined in Section 13.05(b)Law) the economic claims, rights and benefits (net of the amount of any related Tax (as defined in Section 13.05(b)) costs imposed on Seller or any of its affiliates to the extent not assumed pursuant to clause (ii) belowaffiliates) under the asset, claim or right with respect to which the consent has not been obtained in accordance with this Agreement Agreement, and (ii) Purchaser shall assume any related economic burden (including the amount of any related Tax costs imposed on on, 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.
Appears in 1 contract
Consents to Certain Assignments. (a%3) Notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to assign, directly or indirectly, any asset or any claim or right or any benefit arising under or resulting 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, default, violation or other contravention of the rights of such third partyparty or Governmental Entity or 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 Seller Group or, upon transfer, Purchaser or the Transferred Entity under such asset, claim or right. If any direct or indirect transfer or assignment by Seller to PurchaserPurchaser or any Purchaser Sub, or any direct or indirect acquisition or assumption by Purchaser ofor any Purchaser Sub, of any interest in, or liability, obligation or commitment under, any asset, claim or right requires the consent of a third partyparty or Governmental Approval, then such transfer or assignment or assumption shall be made subject to such consent or Governmental Approval being obtained. For the purposes of this Section 1.03, and thereafter, Seller Governmental Approval shall use its reasonable best efforts not refer to obtain such consentthe approvals described in Section 4.03(b).
(ba) If any such consent or Governmental Approval referred to in Section 1.03(a) is not obtained prior to the Closing, the Closing shall nonetheless take place on place, subject to Section 2.01 and the terms satisfaction of the conditions set forth herein in Article VII and unless this Agreement is terminated in accordance with Article VIII, and, thereafter, Purchaser and Seller shall cooperate (each at its own expense) in any lawful and commercially reasonable arrangement proposed by Purchaser under which (i) Purchaser shall obtain, or cause one or more Purchaser Subs to obtain (to the maximum extent possible without infringing upon the legal rights of such third party or Governmental Entity or violating any Applicable Law (as defined in Section 13.05(bapplicable Law)) , the economic claims, rights and benefits (net of the amount of any related Tax (as defined in Section 13.05(b)) costs imposed on Seller or any of its affiliates to the extent not assumed pursuant to clause (ii) below) under the asset, claim or right (including, in the case of the Georgia Power Contract, the Monthly Capacity Payments and the Green Credits (as such terms are defined in the Georgia Power Contract)), with respect to which the such consent or Governmental Approval has not been obtained in accordance with this Agreement and (ii) Agreement. Purchaser shall, or shall cause one or more Purchaser Subs to, assume any related economic burden (including the amount of any related Tax costs imposed on Seller or any of its affiliates) with respect to the asset, claim or right with respect to which the such consent or Governmental Approval has not been obtained in accordance with this Agreement.
(b) If and when any such 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 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 affiliates to, use commercially reasonable efforts to obtain such third party consents and/or Governmental Approvals as promptly as practicable. The parties shall cooperate in minimizing all fees and expenses incidental to the performance of this Section 1.03 and such fees and expenses shall be borne by the parties pursuant to Section 6.08. 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.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to assign, directly or indirectly, any asset (including any Contract or Permit) or any claim or right or any benefit arising under or resulting from such asset if an attempted direct or indirect assignment thereof, without the consent of a third partyparty or Governmental Approval, (i) would constitute a breach, default, violation or other contravention of the rights of such third partyparty or Governmental Entity or of applicable Law, (ii) would be ineffective with respect to any party to an agreement concerning such asset, claim or right, or (iii) would in any way adversely affect the rights of Seller or any other member of the Seller Group or, upon transfer, Purchaser or the Transferred Entities under such asset, claim 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 Liability under, any asset, claim or right requires the consent of a third partyparty or Governmental Approval, then such transfer or assignment or assumption shall be made subject to such consent or Governmental Approval being obtained, and thereafter, Seller shall use its reasonable best efforts to obtain such consent.
(b) If any such third party consent or Governmental Approval referred to in Section 1.03(a) is not obtained prior to the Closing, the Closing shall 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, (i) Purchaser and Seller shall shall, subject to the provisions of Section 1.03(c), cooperate (each at its own expense) in any lawful and commercially reasonable arrangement proposed by Purchaser and agreed to by Seller (which agreement will not be unreasonably withheld, conditioned or delayed) under which which, for up to 12 months following the Closing Date, (iA) Purchaser shall obtain (to the maximum extent possible without infringing upon the legal rights of such third party or Governmental Entity or violating any Applicable Law (as defined in Section 13.05(b)applicable Law) the economic claims, rights and benefits (net of the amount of any related Tax (as defined in Section 13.05(b)) costs imposed on Seller or any of its affiliates to the extent not assumed pursuant to clause (ii) below) 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 (iiB) Purchaser shall assume any related the economic burden (including the amount of any related Tax costs imposed on Seller or any of its affiliates) 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, and (ii) Seller shall, and shall cause the other members of the Seller Group to, use commercially reasonable efforts to obtain the applicable third-party consent or Governmental Approval and enforce following the Closing, at the request of Purchaser and for a period of 12 months, at the expense and for the account of Purchaser, any rights of Seller arising from such asset, claim or right with respect to which the third-party consent or Governmental Approval has not been obtained against the other party or parties thereto. Notwithstanding the foregoing limitations set forth in Section 1.03(b), if a third party to a contract set forth in Section 1.03(b) of the Seller Disclosure Letter (collectively, the “Specified Contracts”) does not consent to the assignment of such Specified Contract prior to the Closing (to the extent such consent is required pursuant to the terms of such Specified Contract), 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, (I) Purchaser and Seller shall, subject to the provisions of Section 1.03(c), cooperate in any lawful and commercially reasonable arrangement proposed by Purchaser and agreed to by Seller (which agreement will not be unreasonably withheld, conditioned or delayed) under which, for the remaining term of such Specified Contracts, (A) Purchaser shall obtain (without infringing upon the legal rights of such third party or violating any applicable Law) the economic claims, rights and benefits under the Specified Contract with respect to which the third party consent has not been obtained in accordance with this AgreementAgreement and (B) Purchaser shall assume the economic burden with respect to the Specified Contract with respect to which the third party consent has not been obtained in accordance with this Agreement and (II) Seller shall, and shall cause the other members of the Seller Group to, use commercially reasonable efforts to obtain the third-party consent related to the Specified Contract and enforce following the Closing, at the request of Purchaser and for the remaining term of such Specified Contract, at the expense and for the account of Purchaser, any rights of Seller arising from such Specified Contract.
(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 in a form reasonably satisfactory to Purchaser and Seller 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. Purchaser and Seller shall each be responsible for 50% of any and all third-party fees (other than de minimis fees and attorney’s 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). Except as set forth in Section 6.05(a), Seller and Purchaser shall share equally 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 Transfer Taxes and Rollback Taxes, which are the subject of Section 9.01(c)) and (ii) making any arrangements referred to in Section 1.03(b). The parties shall cooperate in reasonably minimizing all such fees and expenses.
(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 other member of the Seller Group holds any Transferred Assets or Assumed Liabilities, Purchaser or Seller, as applicable, shall promptly transfer (or cause to be transferred) such assets or assume (or cause to be assumed) such Liabilities to or from (as the case may be) the other party. Prior to any such transfer, the party receiving or possessing any such asset shall hold it in trust for such other party.
(e) For 12 months after the Closing, Seller shall use commercially reasonable efforts to cooperate, and shall cause the other members of the Seller Group to use commercially reasonable efforts to cooperate, with Purchaser in order to provide Purchaser, at Purchaser’s expense, with all of the benefits of, including any volume-based pricing, subject to the related obligations under, the Enterprise Contracts listed on Section 1.03(e) of the Seller Disclosure Letter (the “Shared Contracts”) to the extent that such Shared Contracts relate to the Business or the Business Assets; provided that Purchaser shall use commercially reasonable efforts and Seller shall use commercially reasonable efforts to cooperate, and shall cause the other members of the Seller Group to use commercially reasonable efforts to cooperate, with Purchaser to enter into a separate Contract with the third party to each Shared Contract on comparable terms in respect of the Business and the Business Assets as promptly as practicable after the Closing, but in any event within 12 months after the Closing.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to assign, directly or indirectly, any asset or any claim or right or any benefit arising under or resulting 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, default, violation or other contravention of the rights of such third partyparty or Governmental Entity or 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, upon transfer, Purchaser under such asset, claim 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 requires the consent of a third partyparty or Governmental Approval, then such transfer or assignment or assumption shall be made subject to such consent or Governmental Approval being obtained, and thereafter, Seller shall use its reasonable best efforts to obtain such consent.
(b) If any such consent or Governmental Approval referred to in Section 1.03(a) 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 cooperate (each at its own expense) in any lawful and commercially reasonable arrangement proposed by Purchaser under which (i) Purchaser shall obtain (to the maximum extent possible without infringing upon the legal rights of such third party or Governmental Entity or violating any Applicable Law (as defined in Section 13.05(b)applicable Law) the economic claims, rights and benefits (net of the amount of any related Tax (as defined in Section 13.05(b)) costs imposed on Seller or any of its affiliates to the extent not assumed pursuant to clause (ii) belowaffiliates) under the asset, claim or right with respect to which the consent or Governmental Approval has not been obtained in accordance with this Agreement and (ii) such arrangement, the “Arrangement”). Purchaser shall assume bear any related economic burden (including the amount of any related Tax costs imposed on Seller or any of its affiliates) with respect to the asset, claim or right with respect to which the consent or Governmental Approval has not been obtained in accordance with this Agreement.
Appears in 1 contract
Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to assign, directly or indirectly, any asset or any claim or right or any benefit arising under or resulting 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, default, violation or other contravention of the rights of such third partyparty or Governmental Entity or 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 Seller Group or, upon transfer, Purchaser or the Transferred Entity under such asset, claim or right. If any direct or indirect transfer or assignment by Seller to PurchaserPurchaser or any Purchaser Sub, or any direct or indirect acquisition or assumption by Purchaser ofor any Purchaser Sub, of any interest in, or liability, obligation or commitment under, any asset, claim or right requires the consent of a third partyparty or Governmental Approval, then such transfer or assignment or assumption shall be made subject to such consent or Governmental Approval being obtained. For the purposes of this Section 1.03, and thereafter, Seller Governmental Approval shall use its reasonable best efforts not refer to obtain such consentthe approvals described in Section 4.03(b).
(b) If any such consent or Governmental Approval referred to in Section 1.03(a) is not obtained prior to the Closing, the Closing shall nonetheless take place on place, subject to Section 2.01 and the terms satisfaction of the conditions set forth herein in Article VII and unless this Agreement is terminated in accordance with Article VIII, and, thereafter, Purchaser and Seller shall cooperate (each at its own expense) in any lawful and commercially reasonable arrangement proposed by Purchaser under which (i) Purchaser shall obtain, or cause one or more Purchaser Subs to obtain (to the maximum extent possible without infringing upon the legal rights of such third party or Governmental Entity or violating any Applicable Law (as defined in Section 13.05(bapplicable Law)) , the economic claims, rights and benefits (net of the amount of any related Tax (as defined in Section 13.05(b)) costs imposed on Seller or any of its affiliates to the extent not assumed pursuant to clause (ii) below) under the asset, claim or right (including, in the case of the Georgia Power Contract, the Monthly Capacity Payments and the Green Credits (as such terms are defined in the Georgia Power Contract)), with respect to which the such consent or Governmental Approval has not been obtained in accordance with this Agreement and (ii) Agreement. Purchaser shall, or shall cause one or more Purchaser Subs to, assume any related economic burden (including the amount of any related Tax costs imposed on Seller or any of its affiliates) with respect to the asset, claim or right with respect to which the such consent or Governmental Approval has not been obtained in accordance with this Agreement.
(c) If and when any such 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 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 affiliates to, use commercially reasonable efforts to obtain such third party consents and/or Governmental Approvals as promptly as practicable. The parties shall cooperate in minimizing all fees and expenses incidental to the performance of this Section 1.03 and such fees and expenses shall be borne by the parties pursuant to Section 6.08. 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.
Appears in 1 contract
Samples: Purchase Agreement (Weyerhaeuser Co)
