Common use of Efforts to Close Clause in Contracts

Efforts to Close. (a) Subject to this Section 7.1, each of the Parties agrees to use its commercially reasonable efforts to consummate and make effective, as soon as reasonably practicable, and in any event on or prior to the date that is one hundred (100) days from the Effective Date, the Transactions, including, but not limited to, the satisfaction of all conditions thereto set forth herein. Such actions shall include exerting their commercially reasonable efforts to obtain the consents, authorizations and approvals of all private parties and any Governmental Authority whose consent is reasonably necessary to effectuate the Transactions, including, in the case of Seller, Seller's Required Regulatory Approvals and Seller's Required Consents, and in the case of Purchaser, Purchaser's Required Regulatory Approvals and Purchaser's Required Consents, and effecting all other necessary registrations and filings, including filings under Applicable Laws, including the HSR Act, and all other necessary filings with any Governmental Authority. In furtherance of this Section 7.1, each Party shall designate a representative to act as the primary point of contact for all communications between the Parties between the Effective Date and the Closing Date with respect to this Agreement and the Transactions. (b) All appearances, presentations, briefs, and proposals made or submitted by or on behalf of either Party before any Governmental Authority in connection with the approval of this Agreement or the Transactions shall be subject to the joint approval or disapproval in advance and the joint control of the Parties, acting with the advice of their respective counsel, and each Party will consult and fully cooperate with the other Party, and consider in good faith the views of the other Party, in connection with any such appearance, presentation, brief, or proposal; provided, however, that nothing will prevent a Party from responding to a subpoena or other legal process as required by law or submitting factual information in response to a request therefor. Each Party will provide the other with copies of all written communications from Governmental Authorities relating to the approval or disapproval of this Agreement or the Transactions.

Efforts to Close. (a) Subject to this Section 7.1the terms and conditions herein, each of the Parties agrees to shall use its commercially reasonable efforts to consummate and make effectiveeffective the transactions contemplated hereby, and each of the Parties shall use commercially reasonable efforts to jointly CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [CONFIDENTIAL TREATMENT REQUESTED]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. consult and cooperate with the other Parties to consummate and make effective the transactions contemplated hereby, as soon as reasonably practicable, and in any event on or prior to the date that is one hundred (100) days from the Effective Date, the Transactions, including, but not limited to, including the satisfaction of all conditions thereto set forth herein; provided, however, that this shall in no way impair the Parties’ respective termination rights under Section 13.01. Such actions The Sellers and Purchaser shall include exerting their commercially reasonable efforts jointly consult and cooperate prior to obtain the consents, authorizations and approvals of all private parties and any Governmental Authority whose consent is reasonably necessary to effectuate the Transactions, including, in the case of Seller, Seller's Required Regulatory Approvals and Seller's Required Consents, and in the case of Purchaser, Purchaser's Required Regulatory Approvals and Purchaser's Required Consents, and effecting all other necessary registrations and filings, including filings under Applicable Laws, including the HSR Act, and all other necessary filings with any Governmental Authority. In furtherance of this Section 7.1, each Party shall designate a representative to act as the primary point of contact for all communications between the Parties between the Effective Date and the Closing Date with respect to this Agreement and the Transactions. (b) All appearances, presentations, briefs, briefs and proposals made or submitted by or on behalf of either Party Seller or Purchaser before any Governmental Authority regulatory authority in connection with the approval of this Agreement or the Transactions shall be subject to the joint approval or disapproval in advance and the joint control of transactions contemplated hereby and the Parties, acting with the advice of their respective counsel, Sellers and each Party Purchaser will consult and fully cooperate with the other Partyeach other, and consider in good faith the views of the other Partyother, in connection with any such appearance, presentation, brief, brief or proposal; provided, however, that nothing will prevent a Party from responding to a subpoena or other legal process as required by law or submitting factual information in response to a request therefor. Each Party The Sellers and Purchaser will provide the other with copies of all written communications from Governmental Authorities relating to the approval or disapproval of this Agreement and the transactions contemplated hereby, including any Seller Regulatory Approval or Purchaser Regulatory Approval, as applicable. Sellers shall use commercially reasonable efforts to cooperate with Purchaser in its efforts to obtain the Transactionsestoppel certificates attached as Exhibit 8.02(a). For the avoidance of doubt, in no event shall such cooperation require either Seller to make any payment to the signatories of such estoppel certificates.

Efforts to Close. (a) Subject to this Section 7.1the terms and conditions herein, each of the Parties agrees shall cooperate, and shall cause their Representatives to cooperate, with the other and use its commercially reasonable efforts to consummate and make effective, as soon as reasonably practicable, and in any event on or prior to the date that is one hundred (100) days from the Effective Date, the Transactions, including, but not limited to, the satisfaction of all conditions thereto set forth herein. Such actions shall include exerting their commercially reasonable efforts to obtain the consents, authorizations and approvals of all private parties and any Governmental Authority whose consent is reasonably necessary to effectuate the Transactions, including, (i) in the case of Seller, exercising commercially reasonable efforts to (A) file a motion with the Bankruptcy Court seeking approval of the Final Sale Order within ten (10) Business Days after the Effective Date, and have the Final Sale Order approved as soon as possible thereafter; provided, that the Seller shall not be required to file the Final Sale Order on an “emergency basis,” (B) obtain each of the Consents of any Governmental Authority or other Person required for the Closing to occur or required to transfer, convey, and assign the Purchased Assets and the Assumed Liabilities to Purchaser at the Closing, including Seller's Required ’s Regulatory Approvals and Seller's Required ’s Consents, and in the case of Purchaser, Purchaser's Required Regulatory Approvals and Purchaser's Required Consents, and effecting (C) effect all other necessary registrations notifications, registrations, and filings, including filings under Applicable Laws, including the HSR Act, and all other necessary filings with any Governmental Authority. In furtherance Authority having jurisdiction over Seller or the Project, (D) obtain the instruments and documents described in Section 3.2(e), (E) release or remove, or obtain the release or removal of, all Encumbrances described in Part II of this Section 7.1Schedule 1.1C, each Party shall designate a representative and (F) satisfy all conditions of Seller to act as the primary point of contact for all communications between the Parties between the Effective Date and the Closing Date with respect to this Agreement and the Transactions. (b) All appearances, presentations, briefsset forth herein, and proposals made or submitted by or on behalf (ii) in the case of either Party before Purchaser, exercising commercially reasonable efforts to (A) obtain each of the Consents of any Governmental Authority or other Person required for the Closing to occur or required to receive the Purchased Assets and the Assumed Liabilities from Seller at the Closing, including Purchaser’s Regulatory Approvals and Purchaser’s Consents, (B) effect all other necessary notifications, registrations, and filings, including filings under Laws, and all other necessary filings with any Governmental Authority having jurisdiction over Purchaser or the Project, and (C) satisfy all conditions of Purchaser to the Closing set forth herein, in connection with the approval of each case without limiting Seller’s or Purchaser’s (as applicable) obligations under this Agreement or the Transactions shall be subject to the joint approval or disapproval in advance and the joint control of the Parties, acting with the advice of their respective counsel, and each Party will consult and fully cooperate with the other Party, and consider in good faith the views of the other Party, in connection with any such appearance, presentation, brief, or proposal; provided, however, that nothing will prevent a Party from responding to a subpoena or other legal process as required by law or submitting factual information in response to a request therefor. Each Party will provide the other with copies of all written communications from Governmental Authorities relating to the approval or disapproval of this Agreement or the Transactions.Ancillary

Efforts to Close. (a) Subject to this Section 7.1the terms and conditions herein, each of the Parties agrees to shall use its commercially reasonable efforts to consummate and make effectiveeffective the transactions CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [CONFIDENTIAL TREATMENT REQUESTED]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. contemplated hereby, and each of the Parties shall use commercially reasonable efforts to jointly consult and cooperate with the other Parties to consummate and make effective the transactions contemplated hereby, as soon as reasonably practicable, and in any event on or prior to the date that is one hundred (100) days from the Effective Date, the Transactions, including, but not limited to, including the satisfaction of all conditions thereto set forth herein; provided, however, that this shall in no way impair the Parties’ respective termination rights under Section 13.01. Such actions The Sellers and Purchaser shall include exerting their commercially reasonable efforts jointly consult and cooperate prior to obtain the consents, authorizations and approvals of all private parties and any Governmental Authority whose consent is reasonably necessary to effectuate the Transactions, including, in the case of Seller, Seller's Required Regulatory Approvals and Seller's Required Consents, and in the case of Purchaser, Purchaser's Required Regulatory Approvals and Purchaser's Required Consents, and effecting all other necessary registrations and filings, including filings under Applicable Laws, including the HSR Act, and all other necessary filings with any Governmental Authority. In furtherance of this Section 7.1, each Party shall designate a representative to act as the primary point of contact for all communications between the Parties between the Effective Date and the Closing Date with respect to this Agreement and the Transactions. (b) All appearances, presentations, briefs, briefs and proposals made or submitted by or on behalf of either Party Seller or Purchaser before any Governmental Authority regulatory authority in connection with the approval of this Agreement or the Transactions shall be subject to the joint approval or disapproval in advance and the joint control of transactions contemplated hereby and the Parties, acting with the advice of their respective counsel, Sellers and each Party Purchaser will consult and fully cooperate with the other Partyeach other, and consider in good faith the views of the other Partyother, in connection with any such appearance, presentation, brief, brief or proposal; provided, however, that nothing will prevent a Party from responding to a subpoena or other legal process as required by law or submitting factual information in response to a request therefor. Each Party The Sellers and Purchaser will provide the other with copies of all written communications from Governmental Authorities relating to the approval or disapproval of this Agreement and the transactions contemplated hereby, including any Seller Regulatory Approval or Purchaser Regulatory Approval, as applicable. Sellers shall use commercially reasonable efforts to cooperate with Purchaser in its efforts to obtain the Transactionsestoppel certificates attached as Exhibit 8.02(a). For the avoidance of doubt, in no event shall such cooperation require either Seller to make any payment to the signatories of such estoppel certificates.

Efforts to Close. (a) Purchaser represents and warrants to Seller that it knows of no reason that the Closing conditions set forth in Article VIII cannot be satisfied prior to the Termination Date. Subject to this Section 7.1the terms and conditions herein, each of the Parties agrees to shall use its commercially reasonable efforts Commercially Reasonable Efforts to cause all of the conditions to the consummation of the Closing to be fulfilled or otherwise satisfied by it, and to take all other actions and to do all other things necessary in order to consummate and make effective, as soon as reasonably practicable, and in any event on or prior to the date that is one hundred (100) days from the Effective Date, the Transactions, including, but not limited to, the satisfaction of all conditions thereto set forth hereintransactions contemplated by this Agreement. Such actions Each Party shall include exerting their commercially reasonable efforts use its Commercially Reasonable Efforts to obtain the all authorizations, consents, authorizations orders, and approvals of of, and to give all private parties notices to and any make all filings with, all Governmental Authority whose consent is reasonably Authorities (including those pertaining to Governmental Approvals) and other Third Parties that may be or become necessary to effectuate the Transactionstransactions contemplated hereby, including, in the case of Seller, Seller's ’s Required Regulatory Approvals and Seller's ’s Required Consents, and in the case of Purchaser, the Purchaser's ’s Required Regulatory Approvals and Purchaser's ’s Required Consents, and effecting all other necessary registrations and filings, including including, without limitation, filings under Applicable Lawsapplicable Law, including under the HSR ActAct and with FERC and applicable state utility regulatory commissions, and all other necessary filings with with, or notices to, any Governmental Authority. In furtherance Seller shall use its Commercially Reasonable Efforts to cooperate with Purchaser in obtaining the requisite consents to the transfer of this Section 7.1, each the Environmental Permits which constitute Transferable Permits and shall cooperate with Purchaser in connection with Purchaser’s efforts to obtain the reissuance or procurement of other Environmental Permits. Each Party shall designate a representative cooperate fully with the other Party in promptly seeking to act as obtain all such authorizations, consents, orders, and approvals, giving such notices, and making such filings. The Parties hereto shall have the primary point right to review in advance all characterizations of contact for all communications between the Parties between the Effective Date and the Closing Date with respect information relating to this Agreement and the Transactionstransactions contemplated hereby that appear in any filing made with a Governmental Authority as contemplated herein. Each of Seller and Purchaser agrees to make appropriate filings of (i) a Notification and Report Form pursuant to the HSR Act and any required filings with FERC or for other Federal Approvals, with respect to the transactions contemplated hereby within twenty (20) Business Days of the date hereof and (ii) any required filings with applicable state utility regulatory commissions or for other State Approvals within thirty (30) calendar days of the date hereof. The Parties shall respond promptly to any requests for additional information made by any of such agencies, and cause the waiting periods under the HSR Act to terminate or expire, and the approvals of FERC and applicable state utility regulatory commissions to be obtained, at the earliest possible date after the date of filing. (b) All appearances, presentations, briefs, and proposals made or submitted by or on behalf of either Party before any Governmental Authority in connection with the approval of this Agreement or the Transactions shall be subject to the joint approval or disapproval in advance and the joint control of the Parties, acting with the advice of their respective counsel, and each Party will consult and fully cooperate with the other Party, and consider in good faith the views of the other Party, in connection with any such appearance, presentation, brief, or proposal; provided, however, that nothing will prevent a Party from responding to a subpoena or other legal process as required by law or submitting factual information in response to a request therefor. Each Party will provide the other with copies of all written communications from Governmental Authorities relating to the approval or disapproval of this Agreement Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby. (c) Notwithstanding the foregoing, it is agreed that, while Seller shall initiate the process of obtaining certain consents and shall cooperate as described above, Purchaser shall have (i) the primary responsibility to secure, at Purchaser’s sole cost and expense, all consents, approvals and waivers from any Persons for the transfer, issuance, reissuance or renewal of any necessary Permits effective prior to the TransactionsClosing Date that are required for the ownership, lease, use, maintenance or operation of the Purchased Assets.

Efforts to Close. (a) Subject to this Section 7.1, each of the Parties agrees to Each Party will use its commercially reasonable efforts Reasonable Efforts to consummate take all actions and do all things necessary, proper, or advisable to consummate, make effective, and comply with all of the terms of this Agreement (including entry into the Transaction Documents as soon as reasonably practicable, applicable and in any event on or prior to the date that is one hundred (100) days from the Effective Date, the Transactions, includingsatisfaction, but not limited towaiver, of the satisfaction of all Closing conditions thereto for which it is responsible or otherwise in control, as set forth hereinin Article 9). Such actions shall include exerting their commercially reasonable efforts to obtain the consents, authorizations and approvals of all private parties and any Governmental Authority whose consent is reasonably necessary to effectuate the Transactions, including, in the case of Seller, Seller's Required Regulatory Approvals and Seller's Required Consents, and in the case of Purchaser, Purchaser's Required Regulatory Approvals and Purchaser's Required Consents, and effecting all other necessary registrations and filings, including filings under Applicable Laws, including the HSR Act, and all other necessary filings with any Governmental Authority. In furtherance of this Section 7.1, each Each Party shall designate a representative cooperate with the other in connection with all actions to act as the primary point of contact for all communications between the Parties between the Effective Date and the Closing Date with respect to this Agreement and the Transactions. (b) All appearances, presentations, briefs, and proposals made or submitted by or on behalf of either Party before any Governmental Authority be taken in connection with the approval foregoing sentence. Seller and Shareholders shall fully cooperate with Buyer (and will exercise Reasonable Efforts) in, Buyer’s licensing efforts (including, prior to Closing, at Closing and after Closing), including assisting Buyer to obtain all of this Agreement or the Transactions Licenses set forth on Schedule 9.1(j). Seller and Shareholders will give any notices to Third Parties, and will use its Reasonable Efforts to obtain any Third Party Consents referred to herein. The form and content of all notices shall be subject mutually agreeable to the joint approval or disapproval in advance and the joint control of the Parties, acting reasonably. Seller will give any notices to, make any filings with, and use its Reasonable Efforts to obtain all Licenses and Consents of Governmental Authorities, if any, required of Seller pursuant to any applicable Law in connection with the advice of their respective counselTransactions. Buyer will give any notices to, make any filings with, and each Party will consult use its Reasonable Efforts to obtain all Licenses and fully cooperate Consents of Governmental Authorities, if any, required of Buyer pursuant to any applicable Law in connection with the other PartyTransactions. In addition, Buyer and consider Seller shall work together expeditiously and in good faith to identify and obtain all other Consents needed in order to consummate the views Transactions, including but not limited to consumer consents that may be necessary to transfer the Acquired Seller Pipeline Loans, counterparty consents that may be necessary to transfer the Contracts, Business Intellectual Property and other agreements, and consents that may be required by any state and federal licenses and approvals. Furthermore, upon execution of this Agreement, Seller shall provide to Buyer a preliminary list of the other PartyContracts that require counterparty consent for assignment of such Contract to Buyer, and Seller, working in connection coordination with any such appearanceBuyer, presentation, brief, or proposal; provided, however, that nothing will prevent a Party from responding to a subpoena or other legal process as required by law or submitting factual information in response to a request therefor. Each Party will provide to Buyer, no later than 21 days prior to Closing, a final list of the other with copies Contracts that require counterparty consent for assignment of all written communications such Contract to Buyer. Furthermore, upon execution of this Agreement, Seller shall provide to Buyer a preliminary list of the Consents from Governmental Authorities relating that are required to operate the approval or disapproval Business, and, working in coordination with Buyer, Seller will provide to Buyer, no later than 14 days following the date hereof, a final list of this Agreement or the Transactionssuch Consents from Governmental Authorities.

Efforts to Close. (a) Subject Upon the terms and subject to the conditions and other agreements set forth in this Section 7.1Agreement, each Seller and Buyer shall (a) refrain from taking any actions that could reasonably be expected to impair, delay or impede the Closing, and (b) without limiting any other provision of the Parties agrees to this Agreement, use its commercially reasonable efforts to cause all the conditions to the obligations of the other party to consummate and make effective, the transactions contemplated by this Agreement to be met as soon as reasonably practicable. Notwithstanding the foregoing or anything else in this Agreement, and nothing in this Agreement shall require Seller to agree to or execute any event on material changes to any Contracts, offer or prior grant any accommodation (financial or otherwise), commence any Proceeding or make any payments to any third party in order to obtain third party consents to the date that is one hundred (100) days from the Effective Datetransactions contemplated by this Agreement, the Transactions, including, but not limited to, the satisfaction of all conditions thereto set forth herein. Such actions shall include exerting their commercially reasonable efforts to obtain the consents, authorizations and approvals of all private parties and any Governmental Authority whose consent is reasonably necessary to effectuate the Transactions, including, except in the case of Seller, Seller's Required Regulatory Approvals and Seller's Required Consents, and in the case of Purchaser, Purchaser's Required Regulatory Approvals and Purchaser's Required Consents, and effecting all other necessary registrations and filings, including filings under Applicable Laws, including the HSR Act, and all other necessary filings with any Governmental Authority. In furtherance of this Section 7.1, each Party where such material change shall designate a representative to act as the primary point of contact for all communications between the Parties between the Effective Date and only be effective upon the Closing Date with respect to this Agreement and the Transactionswhere such payments are expressly contemplated by a Contract between Seller and such third party. (b) All appearancesSeller hereby covenants and agrees that it will not enter into any public offering, presentationsmerger, briefscombination, and proposals made divestiture, financing, joint venture, sale and/or acquisition agreement in whatever form, except for agreements in the ordinary course of business (including, without limitation, joint venture, sale license or submitted distribution agreements) or enter into any other transaction that would preclude the consummation of the transactions contemplated by or on behalf this Agreement. (c) Promptly after the execution of either Party before any Governmental Authority this Agreement, Seller shall deliver to Hope Road Merchandising, L.L.C. a notice of the assignment of the License Agreement in connection with the approval form attached hereto as Exhibit E as required under Section 20(c) of the License Agreement. (d) Buyer shall use its reasonable best efforts to obtain as soon as possible after the date of this Agreement or a consent and waiver from Aegis Capital Corp. so that the Transactions shall NBEV Shares may be subject to the joint approval or disapproval in advance and the joint control of the Parties, acting with the advice of their respective counsel, and each Party will consult and fully cooperate with the other Party, and consider in good faith the views issued as soon as all of the other Partyclosing conditions set forth herein have been satisfied or waived, free from the lock-up restriction set forth in connection with any such appearance, presentation, brief, or proposal; provided, however, that nothing will prevent a Party from responding to a subpoena or other legal process as required by law or submitting factual information in response to a request therefor. Each Party will provide Section 3.17 of the other with copies of all written communications from Governmental Authorities relating to the approval or disapproval of this Agreement or the TransactionsUnderwriting Agreement.

Efforts to Close. (a) Subject to this Section 7.16.1, each of the Parties agrees to use its their commercially reasonable efforts to consummate and make effective, as soon as reasonably practicable, and in any event on or prior to the date that is one hundred (100) days from the Effective DateSeptember 30, 2005, the Transactions, including, but not limited to, including the satisfaction of all conditions thereto set forth herein. Such actions shall include exerting include, exercising their commercially reasonable efforts to obtain the consents, authorizations and approvals of all private parties and any Governmental Authority whose consent is reasonably necessary to effectuate the Transactions, including, in the case of SellerSellers, Seller's Sellers' Required Regulatory Approvals and Seller's Sellers' Required Consents, and in the case of PurchaserPurchasers, Purchaser's Purchasers' Required Regulatory Approvals and Purchaser's Purchasers' Required Consents, and effecting all other necessary registrations and filings, including filings under Applicable Laws, including the HSR Act, and all other necessary filings with any Governmental Authority. In furtherance of this Section 7.16.1, each Party shall designate a representative to act as the primary point of contact for all communications between the Parties between the Effective Date and the Closing Date with respect to this Agreement and the Transactions. (b) All appearances, presentations, briefs, and proposals made or submitted by or on behalf of either any Party before any Governmental Authority in connection with the approval of this Agreement or the Transactions shall be subject to the joint approval or disapproval in advance and the joint control of the Parties, acting with the advice of their respective counsel, and each Party will consult and fully cooperate with the other Party, and consider in good faith the views of the other Party, in connection with any such appearance, presentation, brief, or proposal; provided, however, that nothing will prevent a Party from responding to a subpoena or other legal process as required by law or submitting factual information in response to a request therefor. Each Party will provide the other with copies of all written communications from Governmental Authorities relating to the approval or disapproval of this Agreement or the Transactions.