Common use of Designated Contracts Clause in Contracts

Designated Contracts. (A) As soon as practicable after the date hereof but in no event later than the day immediately preceding the Closing Date, Buyer shall deliver notice in writing to Company designating which, if any, of the Contracts (defined herein) set forth on Schedule 5.7 will be assigned to and assumed by Buyer (the "Designated Contracts"). Such notice of designation will be set forth on Schedule 1.3 to be attached hereto. If within said period of time Buyer fails to so deliver notice to Company, Buyer will be deemed to have designated none of the Contracts and Company will remain fully liable thereunder. To the extent Buyer makes any such designation and subject to the rights of third parties to any assignment, Company shall at Closing be obligated to assign all of its right, title and interest under such Contracts to Buyer and Buyer shall assume the obligations accruing after Closing under such Designated Contracts. The Company shall bring current, as of the Closing Date, all amounts due under the Designated Contracts. At the Closing, the Purchase Price shall be reduced by an amount equal to the aggregate amount due as of the Closing under all of the Designated Contracts which are assumed by Buyer, and such aggregate withheld amount shall be divided among and paid directly to the such Designated Contract vendors in accordance with the amounts owed to each of them. (B) Notwithstanding anything to the contrary contained herein, Buyer is not assuming and will not be responsible for any liabilities or obligations under the Designated Contracts incurred on or occurring before the Closing Date; all such liabilities and obligations remaining the sole and exclusive responsibility of Company pursuant to Section 1.2 herein and shall be paid or performed on or prior to the Closing Date. (C) Immediately after notice of the designation by Buyer of the Designated Contracts to be assigned by Company, Company will use its best efforts and shall diligently proceed to obtain any consents of any parties necessary to permit the assignment of the Designated Contracts. In the event that any of the Designated Contracts are not assignable, or the parties to such Designated Contract fail or refuse to consent to any assignment on or before the Closing Date, Buyer shall have no liability to assume any such Designated Contracts.

Designated Contracts. Within ten (A10) As soon business days after the date hereof, Buyer shall deliver to the Shareholder Schedule 2.4 setting forth each of the Contracts identified on Schedule 5.7(b) that the Company, Medi-Serve or any of the Subsidiaries shall not retain as practicable of the Closing (the "DESIGNATED CONTRACTS"). Within five (5) days after Buyer shall have delivered Schedule 2.4 to Shareholder, the Shareholder may terminate this Agreement in accordance with Section 12.1 by giving notice thereof during such five (5) day period if any Contracts shall be listed on Schedule 2.4. If Shareholder shall not so notify Buyer within such time period, then such right to terminate this Agreement shall expire. Prior to the Closing (unless the Shareholder shall have terminated this Agreement as provided above), each Designated Contract set forth on Schedule 2.4 shall be terminated (or the Company, Medi-Serve and the Subsidiaries shall otherwise be released from all liability with respect thereto) at the sole cost and expense of the Shareholder (or at the cost of the Company, Medi-Serve or the Subsidiaries to the extent such cost is expressly included in the calculation of the Actual Working Capital Amount or Actual Long-term Liabilities). It shall be a condition precedent of Buyer to the Closing that all required consents shall have been obtained from each party to each Contract (that is not a Designated Contract) with respect to which the change in control contemplated by this Agreement requires such consent ("CONSENT CONTRACTS"), except to the extent that the failure to obtain such consents with respect to Consent Contracts is not reasonably likely to have a material adverse effect on the Company, Medi-Serve or the operation of the Business. If the Company, Medi-Serve or any of the Subsidiaries shall enter into any agreement, lease, contract, instrument or commitment after the date hereof and prior to Closing that would be deemed to be "material" as defined in Section 5.7 below if it were in existence on the date hereof, or if there shall be disclosed any agreement, lease, contract, instrument or commitment that should have been disclosed on Schedule 5.7(b) hereto but in no event later than the day immediately preceding the Closing Datethat was not so disclosed, then Buyer shall deliver notice in writing have five (5) business days from the date on which so disclosed to Company designating whichBuyer to notify the Shareholder as to whether such agreement, if anylease, of the Contracts (defined herein) set forth on Schedule 5.7 will contract, instrument or commitment shall be assigned to and assumed by Buyer (the "a Designated Contracts"). Such notice of designation will be set forth on Schedule 1.3 to be attached heretoContract. If within said period of time Buyer fails to so deliver notice to Companynotify the Shareholder then such agreement, Buyer will lease, contract, instrument or commitment shall not be deemed to have designated none of the Contracts and Company will remain fully liable thereunder. To the extent Buyer makes any such designation and subject to the rights of third parties to any assignment, Company shall at Closing be obligated to assign all of its right, title and interest under such Contracts to Buyer and Buyer shall assume the obligations accruing after Closing under such a Designated Contracts. The Company shall bring current, as of the Closing Date, all amounts due under the Designated Contracts. At the Closing, the Purchase Price shall be reduced by an amount equal to the aggregate amount due as of the Closing under all of the Designated Contracts which are assumed by Buyer, and such aggregate withheld amount shall be divided among and paid directly to the such Designated Contract vendors in accordance with the amounts owed to each of themContract. (B) Notwithstanding anything to the contrary contained herein, Buyer is not assuming and will not be responsible for any liabilities or obligations under the Designated Contracts incurred on or occurring before the Closing Date; all such liabilities and obligations remaining the sole and exclusive responsibility of Company pursuant to Section 1.2 herein and shall be paid or performed on or prior to the Closing Date. (C) Immediately after notice of the designation by Buyer of the Designated Contracts to be assigned by Company, Company will use its best efforts and shall diligently proceed to obtain any consents of any parties necessary to permit the assignment of the Designated Contracts. In the event that any of the Designated Contracts are not assignable, or the parties to such Designated Contract fail or refuse to consent to any assignment on or before the Closing Date, Buyer shall have no liability to assume any such Designated Contracts.

Designated Contracts. (Aa) As soon as practicable after the date hereof but in no event later than fifteen (15) days after the day immediately preceding the Closing Datedate hereof, Buyer shall deliver notice in writing to Company Sellers designating which, if any, of the Contracts (defined herein) set forth on Schedule 5.7 SCHEDULE 4.7 hereto will be assigned to and assumed by Buyer (the "Designated Contracts"). Such notice of designation will be set forth on Schedule 1.3 to be attached SCHEDULE 1.4 hereto. If within said period of time Buyer fails to so deliver notice to CompanySellers, Buyer will be deemed to have designated none of the Contracts Contracts, and Company Sellers will remain fully liable thereunder. To the extent Buyer makes any such designation and subject to the rights of third parties to any assignmentdesignation, Company Sellers shall at Closing be obligated to either: (i) assign all of its right, title and interest under such Designated Contracts to Buyer and Buyer shall assume the obligations accruing after Closing under such Designated Contracts. The Company ; and shall bring current, as agree to indemnify and hold harmless the respective Seller from any and all liability thereunder; or (ii) arrange for termination of the Closing Date, all amounts due under the Designated Contracts. At the Closing, the Purchase Price shall be reduced by an amount equal to the aggregate amount due as of the Closing under all of the Designated Contracts which are assumed by Buyer, such contract and such aggregate withheld amount shall be divided among and paid directly to the such Designated Contract vendors in accordance with the amounts owed to each of thementer into a replacement therefor. (Bb) Notwithstanding anything to the contrary contained herein, unless otherwise specifically agreed in writing, Buyer is not assuming and will not be responsible for any liabilities or obligations under the Designated Contracts incurred on or occurring before the Closing Date; all such liabilities and obligations remaining the sole and exclusive responsibility of Company Sellers pursuant to Section 1.2 1.3 herein and shall be paid or performed on or prior to the Closing Date. (Cc) Immediately after notice of the designation confirmation by Buyer of the Designated Contracts to be assigned by CompanySellers, Company will Buyer and each Seller, respectively, shall use its best efforts and shall diligently proceed to obtain any consents of any parties necessary to permit the assignment and assumption of the Designated Contracts. In the event that any of the Designated Contracts are not assignable, or the parties to any such Designated Contract Contracts fail or refuse to consent to any assignment on or before the Closing Date, Buyer shall have no liability to assume and shall not assume any such Designated Contracts.

Designated Contracts. (A) As soon as practicable after the date hereof but in no event later than the day immediately preceding the Closing Date, Buyer shall deliver notice in writing to Company designating which, if any, of the Contracts (defined herein) set forth on Schedule 5.7 will be assigned to and assumed by Buyer (the "Designated ContractsDESIGNATED CONTRACTS"). Such notice of designation will be set forth on Schedule 1.3 to be attached hereto. If within said period of time Buyer fails to so deliver notice to CompanyCompanies, Buyer will be deemed to have designated none of the Contracts and Company Companies will remain fully liable thereunder. Upon Closing, Buyer will provide mobile x-ray and/or mobile EKG services to the facilities or organizations with which the Companies currently have service contracts. To the extent Buyer makes any such designation and subject to the rights of third parties to any assignment, Company Companies shall at Closing be obligated to assign all of its right, title and interest under such Contracts to Buyer and Buyer shall assume the obligations accruing after Closing under such Designated Contracts. The Company Companies shall bring current, as of the Closing Date, all amounts due under the Designated Contracts. At the Closing, the cash portion of the Purchase Price shall be reduced by an amount equal to the aggregate amount due as of the Closing under all of the Designated Contracts which are assumed by Buyer, and such aggregate withheld amount shall be divided among and paid directly to the such Designated Contract vendors in accordance with the amounts owed to each of them. (B) Notwithstanding anything to the contrary contained herein, Buyer is not assuming and will not be responsible for any liabilities or obligations under the Designated Contracts incurred on or occurring before the Closing Date; all such liabilities and obligations remaining the sole and exclusive responsibility of Company Companies pursuant to Section 1.2 herein and shall be paid or performed on or prior to the Closing Date. (C) Immediately after notice of the designation by Buyer of the Designated Contracts to be assigned by CompanyCompanies, Company Companies will use its their best efforts and shall diligently proceed to obtain any consents of any parties necessary to permit the assignment of the Designated Contracts. In the event that any of the Designated Contracts are not assignable, or the parties to such Designated Contract fail or refuse to consent to any assignment on or before the Closing Date, Buyer shall have no liability to assume any such Designated Contracts.

Designated Contracts. (Aa) As soon as practicable after the date hereof but in no event later than the day immediately preceding the Closing Date, Buyer shall deliver notice in writing to Company Seller designating which, if any, of the Contracts (defined herein) set forth on Schedule 5.7 4.7 will be assigned to and assumed by Buyer (the "Designated Contracts"). Such notice of designation will be set forth on Schedule 1.3 1.4 to be attached hereto. If within said period of time Buyer fails to so deliver notice to CompanySeller, Buyer will be deemed to have designated none of the Contracts and Company Seller will remain fully liable thereunder. To the extent Buyer makes any such designation and subject to the rights of third parties to any assignmentdesignation, Company Seller shall at Closing be obligated to assign all of its right, title and interest under such Contracts to Buyer and Buyer shall assume the obligations accruing after Closing under such Designated Contracts. The Company shall bring current, as of the Closing Date, all amounts due under the Designated Contracts. At the Closing, the Purchase Price shall be reduced by an amount equal to the aggregate amount due as of the Closing under all of the Designated Contracts which are assumed by Buyer, and such aggregate withheld amount shall be divided among and paid directly to the such Designated Contract vendors in accordance with the amounts owed to each of them. (Bb) Notwithstanding anything to the contrary contained herein, Buyer is not assuming and will not be responsible for any liabilities or obligations under the Designated Contracts incurred on or occurring before the Closing Date; all such liabilities and obligations remaining the sole and exclusive responsibility of Company Seller pursuant to Section 1.2 Paragraph 1.3 herein and shall be paid or performed on or prior to the Closing Date. (Cc) Immediately after notice of the designation by Buyer of the Designated Contracts to be assigned by CompanySeller, Company Seller will use its best efforts and shall diligently proceed to obtain any consents of any parties necessary to permit the assignment of the Designated Contracts. In the event that any of the Designated Contracts are not assignable, or the parties to such Designated Contract fail or refuse to consent to any assignment on or before the Closing Date, Buyer shall have no liability to assume and will not assume any such Designated Contracts.

Designated Contracts. Within ten (A10) As soon business days after the date hereof, Buyer shall deliver to the Shareholders' Representative Schedule 2.4 setting forth each of the Contracts identified on Schedule 5.7(b) that the Company or any of its subsidiaries shall not retain as practicable of the Closing (the "DESIGNATED CONTRACTS"); provided that no Management Agreement or Tenancy Lease shall be included on Schedule 2.4. Within five (5) days after Buyer shall have delivered Schedule 2.4 to Shareholders' Representative, the Shareholders' Representative may terminate this Agreement in accordance with Section 13.1 by giving notice thereof during such five (5) day period if any Contracts shall be listed on Schedule 2.4. If Shareholders' Representative shall not so notify Buyer within such time period, then such right to terminate this Agreement shall expire. Prior to the Closing, each Contract described on Schedule 5.26 and each other Designated Contract shall be terminated (or the Company and its subsidiaries shall otherwise be released from all liability with respect thereto) at the sole cost and expense of the Principal Shareholders (or at the cost of the Company or its subsidiaries to the extent such cost is expressly included in the calculation of the Actual Working Capital Amount or Actual Long-term Liabilities). It shall be a condition precedent of Buyer to the Closing that all required consents shall have been obtained from each party to each Contract (that is not a Designated Contract) with respect to which the change in control contemplated by this Agreement requires such consent ("CONSENT CONTRACTS"), except to the extent that the failure to obtain such consents with respect to Consent Contracts that do not constitute Lease-Related Contracts (as hereinafter defined) is not reasonably likely to have a material adverse effect on the Company or the operation of the Business. The Company (prior to the Closing only) and each Principal Shareholder hereby jointly and severally represent and warrant to Buyer that Schedule 5.7(b) correctly identifies each Consent Contract that is necessary for the Company or any Subsidiary to continue as the lessee under any Lease other than the Georgia billing office Lease identified as item 9 (ee) on Schedule 5.7(b) (each, a "LEASE-RELATED CONTRACT"). If the Company and Shareholders comply with their obligations under Section 9.4 below and any required consent is not obtained on or prior to Closing with respect to any Lease-Related Contract, then Buyer shall not be permitted to terminate its obligations under this Agreement by reason thereof, but the Base Amount (and, correspondingly, the Series A Merger Consideration and the Series B Merger Consideration), shall be reduced by the amount allocated to the Facility to which such Lease-Related Contract relates as set forth on Annex A to Schedule 5.7(b); provided, however, that if the aggregate amount of such reduction to be made by reason of this Section 2.4 shall be equal to or exceed $7,000,000, then Buyer shall be entitled to terminate its obligations under this Agreement. If the Company or any of its subsidiaries shall enter into any agreement, lease, contract, instrument or commitment after the date hereof and prior to Closing that would be deemed to be "material" as defined in Section 5.7 below if it were in existence on the date hereof, or if there shall be disclosed any agreement, lease, contract, instrument or commitment that should have been disclosed on Schedule 5.7(b) hereto but in no event later than the day immediately preceding the Closing Datethat was not so disclosed, then Buyer shall deliver notice in writing have five (5) business days from the date on which so disclosed to Company designating whichBuyer to notify the Shareholders' Representative as to whether such agreement, if anylease, of the Contracts (defined herein) set forth on Schedule 5.7 will contract, instrument or commitment shall be assigned to and assumed by Buyer (the "a Designated Contracts"). Such notice of designation will be set forth on Schedule 1.3 to be attached heretoContract. If within said period of time Buyer fails to so deliver notice to Companynotify the Shareholders' Representative then such agreement, Buyer will lease, contract, instrument or commitment shall not be deemed to have designated none be a Designated Contract. Without limiting the generality of the Contracts and Company will remain fully liable thereunder. To foregoing, all of the extent Buyer makes any such designation and subject employment agreements referred to in Schedule 6.6A to the rights of third parties SCHM Stock Purchase Agreement other than the one-year employment agreements with ▇▇▇▇▇▇ Canada, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ substantially in the form heretofore provided by Buyer to any assignmentthe Principal Shareholders, Company shall at Closing be obligated to assign terminated (or all of its right, title and interest amounts payable under such Contracts to Buyer employment agreements at any time shall be included as current liabilities in the working capital of the Company and Buyer shall assume the obligations accruing after Closing under such Designated Contracts. The Company shall bring current, its subsidiaries on a consolidated basis as of the Closing DateDate regardless of whether in accordance with GAAP); provided further, all amounts that in the case of the employment agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, such employment agreement need not be terminated on the condition that any payments that may become due under to such employee upon the Designated Contracts. At subsequent termination of his employment after the Closing, the Purchase Price shall be reduced by an amount equal to the aggregate amount due as second anniversary of the Closing under all of the Designated Contracts which are assumed by BuyerDate (without releasing him from any restrictive covenants), and such aggregate withheld amount shall be divided among Prohibited Liabilities (and paid directly to the such Designated Contract vendors in accordance with the amounts owed to each of them. (B) Notwithstanding anything to the contrary contained herein, Buyer is not assuming and will shall not be responsible for any liabilities or obligations under the Designated Contracts incurred on or occurring before the Closing Date; all such liabilities and obligations remaining the sole and exclusive responsibility of Company pursuant subject to Section 1.2 herein and shall be paid or performed on or prior to the Closing Date12.6(b) below). (C) Immediately after notice of the designation by Buyer of the Designated Contracts to be assigned by Company, Company will use its best efforts and shall diligently proceed to obtain any consents of any parties necessary to permit the assignment of the Designated Contracts. In the event that any of the Designated Contracts are not assignable, or the parties to such Designated Contract fail or refuse to consent to any assignment on or before the Closing Date, Buyer shall have no liability to assume any such Designated Contracts.