Common use of Delayed Closing Clause in Contracts

Delayed Closing. To the extent that the NJDEP Approvals shall not have been obtained prior to the Closing Date, this Agreement shall not constitute an agreement to sell the NJDEP Subsidiaries. Following the Closing, Parent, Seller and Buyer shall use their reasonable best efforts, and cooperate with each other, to obtain promptly such NJDEP Approvals; provided, however, that neither Parent, Seller nor Buyer nor any of their respective Affiliates shall be required to incur any obligation or pay any additional consideration therefor, other than (i) a nominal filing, application or similar cost or fee, and (ii) nominal amounts to cover processing and review by third parties of such authorizations, approvals, consents, agreements or waivers, including de minimis amounts of attorneys’ fees. Pending obtaining such NJDEP Approvals, Parent, Seller and Buyer shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the profits and other benefits and liabilities of use or ownership of the NJDEP Subsidiaries (excluding liabilities for Taxes relating to such use or ownership or the profits to Buyer therefrom). Once the NJDEP Approvals are obtained, Parent and Seller shall promptly sell, assign, transfer and deliver the NJDEP Subsidiaries to Buyer for no additional consideration (other than as provided for above) at a closing to be held on the fifth Business Day after receipt of the NJDEP Approvals (the “Delayed Closing Date”), or such other time as Parent, Seller and Buyer may mutually agree (the “Delayed Closing”). For purposes of this Section 2.6, any NJDEP Subsidiaries subject to a Delayed Closing shall be referred to as “Delayed Assets”. The risk in any such Delayed Assets shall pass to Buyer effective as of the Closing. After Closing and prior to the Delayed Closing, if requested by Buyer and subject to compliance with Laws and any contractual obligations of Parent and Seller prohibiting or limiting the execution of a declaration of trust relating to any such Delayed Assets, Parent and Seller shall execute a declaration of trust pursuant to which it will hold the benefit of such Delayed Assets in trust for Buyer. Parent and Seller shall account to Buyer for all sums received, less any direct costs (not including management time) which relate to any such Delayed Assets. From and after Closing and prior to the Delayed Closing, Parent and Seller shall, at Buyer’s expense (but without prejudice to Buyer’s rights to indemnification pursuant to Article IX) maintain adequate (but in no event less than was maintained in respect of the relevant Delayed Assets prior to Closing) insurance coverage on any such Delayed Assets and, to the extent permitted under the relevant policies, cause Buyer to be added to all applicable insurance policies as an additional insured. Subject to compliance with Laws and any contractual obligations of Parent of Seller, if the benefit of such Delayed Assets cannot be held in trust for Buyer, Parent, Seller and Buyer will use their reasonable best efforts to make such other reasonable and lawful arrangements among themselves to implement the transfer of the benefit of such Delayed Assets to the extent possible. After Closing and prior to the Delayed Closing and without prejudice to any claim which Buyer has under Article IX, Buyer shall indemnify Parent and Seller for all costs and expenses (excluding Tax liabilities) suffered or reasonably incurred by Parent or Seller in connection with such Delayed Assets, provided that Buyer shall not be required to indemnify Parent or Seller in respect of internal administrative costs (except to the extent attributable to the gross negligence or willful misconduct of Seller). In the case of the Delayed Closing, Parent and Seller shall, from the Closing Date to the date of the Delayed Closing, establish (if not already established) and maintain, at the expense of Buyer, separate books of account and financial statements relating to such Delayed Assets. Buyer shall have the right, at Buyer’s expense, to audit such accounts (upon reasonable notice and at reasonable times) and Parent and Seller shall reasonably cooperate with Buyer and its accountants in any such audit. Parent and Seller shall, and shall cause their Affiliates to, keep confidential all information in relation to any such Delayed Assets with the same degree of care as such party maintains its own confidential information. Parent, Seller and Buyer shall keep each other reasonably informed of matters within their knowledge that are reasonably likely to affect the other in relation to any such Delayed Assets.

Delayed Closing. To the extent that the NJDEP Approvals shall not have been obtained prior to If, on the Closing Date, this a Manufacturer has not issued and delivered to the Purchaser a conditional approval letter or other correspondence confirming the Manufacturer’s intent to enter into a new Manufacturer Agreement shall with the Purchaser on terms and conditions reasonably acceptable to the Purchaser (“Manufacturer Approval”), with respect to any particular Dealership (such Dealership, a “Delayed Closing Dealership”), then (a) such Delayed Closing Dealership and the Purchased Assets related thereto (collectively, the “Delayed Closing Purchased Assets”) will not constitute an agreement be transferred, assigned and conveyed to sell the NJDEP Subsidiaries. Following the Purchaser at Closing, Parent, Seller and Buyer shall use their reasonable best efforts, and cooperate with each other, to obtain promptly such NJDEP Approvals; provided, however, that neither Parent, Seller nor Buyer nor any of their respective Affiliates shall be required to incur any obligation or pay any additional consideration therefor, other than (i) a nominal filing, application or similar cost or fee, and (ii) nominal amounts to cover processing and review by third parties of such authorizations, approvals, consents, agreements or waivers, including de minimis amounts of attorneys’ fees. Pending obtaining such NJDEP Approvals, Parent, Seller and Buyer shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer but rather the profits and other benefits and liabilities of use or ownership Purchaser will deposit the portion of the NJDEP Subsidiaries (excluding liabilities for Taxes relating to such use Closing Purchase Price, as set forth in the Allocation or ownership or as otherwise mutually agreed in writing by the profits to Buyer therefrom). Once the NJDEP Approvals are obtained, Parent and Seller shall promptly sell, assign, transfer and deliver the NJDEP Subsidiaries to Buyer for no additional consideration (other than as provided for above) at a closing to be held on the fifth Business Day after receipt of the NJDEP Approvals parties (the “Delayed Closing DateAmount”), into escrow to be held and disbursed by the Escrow Agent pursuant to the terms of the Escrow Agreement and as agreed by the parties hereto, and (b) the Delayed Business Employees will not be transferred to the Purchaser or such other time as Parentits Affiliates on the Closing Date, Seller but rather the Purchaser will, or will cause its Affiliates to, make conditional offers of employment to the Delayed Business Employees pursuant to Section 7.06(b). Pending Manufacturer Approval, the Purchaser will not assume any Assumed Liabilities to the extent arising out of or in connection with the Delayed Closing Purchased Assets, and Buyer may mutually agree the Delayed Closing Purchased Assets will not be transferred by the Selling Entities to the Purchaser, but will be retained and operated by Selling Entities until the closing of sale of the Delayed Closing Purchased Assets to the Purchaser or to a third party (the a “Delayed Closing”). For purposes of this Section 2.6, The date on which any NJDEP Subsidiaries subject to a Delayed Closing shall be occurs is referred to herein as the “Delayed Assets”. The risk in any such Delayed Assets shall pass to Buyer effective as of the Closing. After Closing and prior to the Delayed Closing, if requested by Buyer and subject to compliance Date” with Laws and any contractual obligations of Parent and Seller prohibiting or limiting the execution of a declaration of trust relating to any such Delayed Assets, Parent and Seller shall execute a declaration of trust pursuant to which it will hold the benefit of such Delayed Assets in trust for Buyer. Parent and Seller shall account to Buyer for all sums received, less any direct costs (not including management time) which relate to any such Delayed Assets. From and after Closing and prior to the Delayed Closing, Parent and Seller shall, at Buyer’s expense (but without prejudice to Buyer’s rights to indemnification pursuant to Article IX) maintain adequate (but in no event less than was maintained in respect of the relevant Delayed Assets prior to Closing) insurance coverage on any such Delayed Assets and, to the extent permitted under the relevant policies, cause Buyer to be added to all applicable insurance policies as an additional insured. Subject to compliance with Laws and any contractual obligations of Parent of Seller, if the benefit of such Delayed Assets cannot be held in trust for Buyer, Parent, Seller and Buyer will use their reasonable best efforts to make such other reasonable and lawful arrangements among themselves to implement the transfer of the benefit of such Delayed Assets to the extent possible. After Closing and prior to the Delayed Closing and without prejudice to any claim which Buyer has under Article IX, Buyer shall indemnify Parent and Seller for all costs and expenses (excluding Tax liabilities) suffered or reasonably incurred by Parent or Seller in connection with such Delayed Assets, provided that Buyer shall not be required to indemnify Parent or Seller in respect of internal administrative costs (except to the extent attributable to the gross negligence or willful misconduct of Seller). In the case of the Delayed Closing, Parent and Seller shall, from the Closing Date to the date of the Delayed Closing, establish (if not already established) and maintain, at the expense of Buyer, separate books of account and financial statements relating to such Delayed Assets. Buyer shall have the right, at Buyer’s expense, to audit such accounts (upon reasonable notice and at reasonable times) and Parent and Seller shall reasonably cooperate with Buyer and its accountants in any such audit. Parent and Seller shall, and shall cause their Affiliates to, keep confidential all information in relation to any such Delayed Assets with the same degree of care as such party maintains its own confidential information. Parent, Seller and Buyer shall keep each other reasonably informed of matters within their knowledge that are reasonably likely to affect the other in relation to any such Delayed AssetsClosing.

Delayed Closing. To Notwithstanding anything to the extent contrary in Section 6.4 or Section 7.4, if the conditions set forth in Section 6.4 and Section 7.4 have been satisfied in all respects but for the receipt of the approvals set forth on Schedule 10.13 (the “Foreign Approvals”) with respect to the Purchased Assets set forth on such Schedule (such Purchased Assets, the “Delayed Transfer Assets”), the conditions set forth in Section 6.4 and Section 7.4 shall be deemed satisfied for all purposes under this Agreement; provided that (i) the NJDEP Approvals Purchase Price payable by Purchaser at the Closing shall be reduced by the applicable amount for such Delayed Transfer Assets set forth on Schedule 10.13, (ii) such Delayed Transfer Assets shall not have been obtained be sold, conveyed, transferred or assigned to Purchaser at the Closing and instead shall be treated as Retained Interests until the third business day following the receipt of the applicable Foreign Approval for such Delayed Transfer Assets (each such date, a “Delayed Closing Date”) and (iii) on the applicable Delayed Closing Date, Purchaser will pay to Sellers the applicable amount for such Delayed Transfer Assets set forth on Schedule 10.13 and the Sellers will sell, convey, transfer or assign to Purchaser the applicable Delayed Transfer Assets, and Purchaser shall assume the Assumed Liabilities associated with and related to the applicable Delayed Transfer Assets. For avoidance of doubt, from and after the Closing Date and until the applicable Delayed Closing Date, Sellers may own and operate the applicable Delayed Transfer Assets in the ordinary course of business, consistent with past practice and consistent with the provisions of Section 5.1 as though operation of such Delayed Transfer Assets constituted operation of Purchased Assets prior to the Closing Date, this Agreement . The Sellers shall operate the applicable Delayed Transfer Assets for the account of the Purchaser and shall not constitute an agreement to sell the NJDEP Subsidiaries. Following the Closing, Parent, Seller and Buyer shall use their reasonable best efforts, and cooperate with each other, to obtain promptly such NJDEP Approvals; provided, however, that neither Parent, Seller nor Buyer nor (absent willful misconduct) have any of their respective Affiliates shall be required to incur any liability or obligation or pay any additional consideration therefor, other than (i) a nominal filing, application or similar cost or fee, and (ii) nominal amounts to cover processing and review by third parties of such authorizations, approvals, consents, agreements or waivers, including de minimis amounts of attorneys’ fees. Pending obtaining such NJDEP Approvals, Parent, Seller and Buyer shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Buyer the profits and other benefits and liabilities of use or ownership of the NJDEP Subsidiaries (excluding liabilities for Taxes relating to such use or ownership or the profits to Buyer therefrom). Once the NJDEP Approvals are obtained, Parent and Seller shall promptly sell, assign, transfer and deliver the NJDEP Subsidiaries to Buyer for no additional consideration (other than as provided for above) at a closing to be held on the fifth Business Day after receipt of the NJDEP Approvals (the “Delayed Closing Date”), or such other time as Parent, Seller and Buyer may mutually agree (the “Delayed Closing”). For purposes of this Section 2.6, any NJDEP Subsidiaries subject to a Delayed Closing shall be referred to as “Delayed Assets”. The risk in any such Delayed Assets shall pass to Buyer effective as of the Closing. After Closing and prior to the Delayed Closing, if requested by Buyer and subject to compliance with Laws and any contractual obligations of Parent and Seller prohibiting or limiting the execution of a declaration of trust relating to any such Delayed Assets, Parent and Seller shall execute a declaration of trust pursuant to which it will hold the benefit of such Delayed Assets in trust for Buyer. Parent and Seller shall account to Buyer for all sums received, less any direct costs (not including management time) which relate to any such Delayed Assets. From and after Closing and prior to the Delayed Closing, Parent and Seller shall, at Buyer’s expense (but without prejudice to Buyer’s rights to indemnification pursuant to Article IX) maintain adequate (but in no event less than was maintained in respect of the relevant Delayed Assets prior to Closing) insurance coverage on any such Delayed Assets and, to the extent permitted under the relevant policies, cause Buyer to be added to all applicable insurance policies as an additional insured. Subject to compliance with Laws and any contractual obligations of Parent of Seller, if the benefit of such Delayed Assets cannot be held in trust for Buyer, Parent, Seller and Buyer will use their reasonable best efforts to make such other reasonable and lawful arrangements among themselves to implement the transfer of the benefit of such Delayed Assets to the extent possible. After Closing and prior to the Delayed Closing and without prejudice to any claim which Buyer has under Article IX, Buyer shall indemnify Parent and Seller for all costs and expenses (excluding Tax liabilities) suffered or reasonably incurred by Parent or Seller in connection with such Delayed operations, including for any decline in revenues or profits. The Sellers will promptly pay to Purchaser any cash generated by the applicable Deferred Transfer Assets, provided that Buyer shall not be required to indemnify Parent or Seller in respect net of internal administrative costs (except to any expenses of operating the extent attributable to the gross negligence or willful misconduct Deferred Transfer Assets. For avoidance of Seller). In the case doubt, any liabilities of the Delayed ClosingDeferred Transfer Assets (whether arising before, Parent and Seller shall, from on or after the Closing Date to the date and excluding any liabilities of the Delayed Closing, establish (if not already establishedany Transferred Entity) and maintain, at the expense of Buyer, separate books of account and financial statements relating to such Delayed Assetsare included in Assumed Liabilities. Buyer shall have the right, at Buyer’s expense, to audit such accounts (upon reasonable notice and at reasonable times) and Parent and Seller shall reasonably cooperate with Buyer and its accountants in any such audit. Parent and Seller shall, and shall cause their Affiliates to, keep confidential all information in relation to any such Delayed Assets with the same degree of care as such party maintains its own confidential information. Parent, Seller and Buyer shall keep each other reasonably informed of matters within their knowledge that are reasonably likely to affect the other in relation to any such Delayed Assets[Signature Page Follows.] 104

Delayed Closing. To The Parties acknowledge and agree that notwithstanding any other provisions of this Agreement, including Articles II, VII and VIII, the extent that consummation of the NJDEP Approvals shall not have been obtained prior transfer and conveyance to the Purchaser of the Assets (other than Inventory) located in or related exclusively to the Blue Distribution Centers (the “Delayed Assets”) and the Blue Distribution Center Contracts and the employment by the Purchaser of Transferred Employees located in such facilities and the assumption by the Purchaser of the liabilities (a) under the Blue Distribution Center Contracts, (b) with respect to any Transferable Permits relating exclusively to a Blue Distribution Center, and (c) to or with respect to such Transferred Employees (collectively, the “Delayed Assumed Obligations”) (each such transfer and conveyance, a “Delayed Closing”) will not occur on the Closing Date, this Date but will instead be consummated on a Blue Distribution Center by Blue Distribution Center basis on the Transfer Date (as such term is defined in the Transition Services Agreement) for such Blue Distribution Center. The parties further acknowledge and agree that no breach or default of the Agreement shall will be deemed to have occurred as a result of not constitute an agreement to sell transferring the NJDEP Subsidiaries. Following Delayed Assets or the Blue Distribution Center Contracts or employing such Transferred Employees at the Closing. At each such Delayed Closing and in connection with the transfer of the Delayed Assets and Blue Distribution Center Contracts associated with the Blue Distribution Centers and the assumption by the Purchaser of the Delayed Assumed Obligations, Parent, Seller the parties shall execute and Buyer shall use their reasonable best efforts, and cooperate with each other, deliver to obtain promptly such NJDEP Approvals; provided, however, that neither Parent, Seller nor Buyer nor any of their respective Affiliates shall be required to incur any obligation or pay any additional consideration therefor, the other than (i) a nominal filing, application or similar cost or fee, an assignment and assumption agreement substantially in the form of the Assignment and Assumption Agreement and (ii) nominal amounts a xxxx of sale substantially in the form of the Xxxx of Sale. Notwithstanding anything herein to cover processing the contrary, following the Closing, the Purchaser shall have no obligation to extend or renew any Purchased Contract or Permit included in the Delayed Assets or Blue Distribution Center Contracts, and review by third parties subject to the terms of such authorizationsthe Transition Services Agreement, approvalsthe sole recourse and remedy the Purchaser or any of its Affiliates shall have against the Seller or any of its Affiliates for damage, consents, agreements destruction or waiversloss to any Delayed Asset, including de minimis amounts of attorneys’ fees. Pending obtaining such NJDEP Approvalsa Distribution Center, Parent, shall be any insurance proceeds collected by the Seller and Buyer (which proceeds the Seller shall cooperate with each other in any use commercially reasonable and lawful arrangements designed efforts to provide to Buyer the profits and other benefits and liabilities of use or ownership of the NJDEP Subsidiaries (excluding liabilities for Taxes obtain) relating to such use damage, destruction or ownership loss and that are not otherwise used in remedying such damage, destruction or loss or otherwise contractually committed and paid to any third party (for example, the profits DC Leases may require the Seller to Buyer therefrom). Once remit such insurance proceeds to the NJDEP Approvals are obtained, Parent and Seller shall promptly sell, assign, transfer and deliver the NJDEP Subsidiaries lessor or apply such proceeds to Buyer for no additional consideration (other than as provided for above) at a closing to be held on the fifth Business Day after receipt of the NJDEP Approvals (the “Delayed Closing Date”), remedy or such other time as Parent, Seller and Buyer may mutually agree (the “Delayed Closing”). For purposes of this Section 2.6, any NJDEP Subsidiaries subject to a Delayed Closing shall be referred to as “Delayed Assets”. The risk in offset any such Delayed Assets shall pass to Buyer effective as of the Closing. After Closing and prior to the Delayed Closingdamage, if requested by Buyer and subject to compliance with Laws and any contractual obligations of Parent and Seller prohibiting destruction or limiting the execution of a declaration of trust relating to any such Delayed Assets, Parent and Seller shall execute a declaration of trust pursuant to which it will hold the benefit of such Delayed Assets in trust for Buyer. Parent and Seller shall account to Buyer for all sums received, less any direct costs (not including management time) which relate to any such Delayed Assets. From and after Closing and prior to the Delayed Closing, Parent and Seller shall, at Buyer’s expense (but without prejudice to Buyer’s rights to indemnification pursuant to Article IX) maintain adequate (but in no event less than was maintained in respect of the relevant Delayed Assets prior to Closing) insurance coverage on any such Delayed Assets and, to the extent permitted under the relevant policies, cause Buyer to be added to all applicable insurance policies as an additional insured. Subject to compliance with Laws and any contractual obligations of Parent of Seller, if the benefit of such Delayed Assets cannot be held in trust for Buyer, Parent, Seller and Buyer will use their reasonable best efforts to make such other reasonable and lawful arrangements among themselves to implement the transfer of the benefit of such Delayed Assets to the extent possible. After Closing and prior to the Delayed Closing and without prejudice to any claim which Buyer has under Article IX, Buyer shall indemnify Parent and Seller for all costs and expenses (excluding Tax liabilities) suffered or reasonably incurred by Parent or Seller in connection with such Delayed Assets, provided that Buyer shall not be required to indemnify Parent or Seller in respect of internal administrative costs (except to the extent attributable to the gross negligence or willful misconduct of Sellerloss). In the case of the Delayed Closing, Parent and Seller shall, from the Closing Date to the date of the Delayed Closing, establish (if not already established) and maintain, at the expense of Buyer, separate books of account and financial statements relating to such Delayed Assets. Buyer shall have the right, at Buyer’s expense, to audit such accounts (upon reasonable notice and at reasonable times) and Parent and Seller shall reasonably cooperate with Buyer and its accountants in any such audit. Parent and Seller shall, and shall cause their Affiliates to, keep confidential all information in relation to any such Delayed Assets with the same degree of care as such party maintains its own confidential information. Parent, Seller and Buyer shall keep each other reasonably informed of matters within their knowledge that are reasonably likely to affect the other in relation to any such Delayed Assets.