Common use of Excluded Asset Transactions Clause in Contracts

Excluded Asset Transactions. (a) The Company shall, and shall cause the other Excluded Asset Sellers and the Excluded Asset Companies to, cause the Excluded Asset Closings to occur in full on or prior to the Closing Date in accordance with the terms of the Excluded Asset Purchase Agreements. (b) Notwithstanding anything to the contrary in this Agreement, including Section 6.1, the Company shall not, and shall cause the other Excluded Asset Sellers and the Excluded Asset Companies not to (i) agree to or effect any amendment or modification to, or any waiver under, or any termination of the Excluded Asset Purchase Agreements, including with regards to (A) expanding the conditions precedent to the Excluded Asset Closings, (B) extending the closing date thereunder or taking any action reasonably expected to delay or hinder the Excluded Asset Closings, (C) imposing any additional liability on, or otherwise expanding the obligations of, the Excluded Asset Sellers, (D) reducing the amount, or modifying the form, of consideration to be paid for the Excluded Assets or (E) otherwise modifying the Excluded Asset Purchase Agreements in any respect, or (ii) assign any of their respective rights under the Excluded Asset Purchase Agreements or any agreement, document or instrument contemplated thereby or executed in connection therewith, in each case without the prior written consent of Parent, which shall not be unreasonably withheld, delayed or conditioned (it being understood that any consent provided by Parent hereunder shall not and shall not be deemed to affect Parent’s closing conditions or constitute a waiver thereof). (c) In the event that any Excluded Asset Purchase Agreement is terminated by any other party thereto, the Company shall use its reasonable best efforts to, and to cause the other Excluded Asset Sellers and the Excluded Asset Companies to, enter into one or more substitute purchase agreements that are reasonably acceptable to Parent (each an “Alternative Excluded Asset Purchase Agreement”) and shall provide reasonable notice to Parent, and keep Parent reasonably apprised of the status and expectations related to any Alternative Excluded Asset Purchase Agreement. (d) In the event that the Company and the other Excluded Asset Sellers enter into any Alternative Excluded Asset Purchase Agreement, the term “Excluded Asset Purchase Agreements” shall be deemed to include any Alternative Excluded Asset Purchase Agreement to the extent then in effect. Without limiting the generality of the foregoing, the obligations set forth in Section 6.7(a) and Section 6.7(b) shall apply to any Alternative Excluded Asset Purchase Agreement.

Excluded Asset Transactions. (a) The Company shallSubject to the terms of this Agreement, including Section 6.2 hereof, and to the terms of the Excluded Asset Purchase Agreements, the Company shall use its commercially reasonable best efforts to cause the other Excluded Asset Sellers and the Excluded Asset Companies to, to cause the Excluded Asset Closings to occur in full on or prior to the Closing Date in accordance with the terms of the Excluded Asset Purchase Agreements. . The Company shall not amend, modify or waive, or agree to amend, modify or waive, any term, condition or obligation of any Excluded Asset Purchase Agreement or enter into any new Excluded Asset Purchase Agreement without providing prior written notice thereof to Parent (bwhich notice shall include the proposed amendment, modification, waiver or new Excluded Asset Purchase Agreement) Notwithstanding anything and a reasonable opportunity for Parent to review and comment on such amendment, modification, waiver or new agreement. If any such proposed amendment, modification or waiver would be adverse to, or the contrary terms of any new Excluded Asset Purchase Agreement shall be adverse to, the rights and obligations of the Surviving Company or the Acquired Companies in this Agreement, including Section 6.1any material respect, the Company shall not, and shall cause the other Excluded Asset Sellers and the Excluded Asset Companies not to (i) agree to or effect any amendment or modification to, or any waiver under, or any termination of the Excluded Asset Purchase Agreements, including with regards to (A) expanding the conditions precedent to the Excluded Asset Closings, (B) extending the closing date thereunder or taking any action reasonably expected to delay or hinder the Excluded Asset Closings, (C) imposing any additional liability on, or otherwise expanding the obligations of, the Excluded Asset Sellers, (D) reducing the amount, or modifying the form, of consideration to be paid for the Excluded Assets or (E) otherwise modifying the Excluded Asset Purchase Agreements in any respect, or (ii) assign any of their respective rights under the Excluded Asset Purchase Agreements or any agreement, document or instrument contemplated thereby or executed in connection therewith, in each case without request the prior written consent of Parent, which shall not consent may be unreasonably withheld, delayed or conditioned denied for any reason (it being understood that any consent provided by Parent hereunder shall not and shall not be deemed without prejudice to affect Parent’s closing conditions or constitute a waiver thereofthe rights of either party under Section 8.1(i). (c) ). In the event that any Excluded Asset Purchase Agreement is terminated by any other party thereto, the Company shall provide prompt notice of such termination to Parent and shall use its reasonable best efforts to, and to cause the other Excluded Asset Sellers and the Excluded Asset Companies to, enter into one or more substitute purchase agreements that are reasonably acceptable to Parent (each an “Alternative Excluded Asset Purchase Agreement”) and shall provide reasonable notice to Parent, and keep Parent reasonably apprised of the status and expectations related to any Alternative Excluded Asset Purchase Agreement. substitute purchase agreements (d) In in which case, for the event that the Company and the other Excluded Asset Sellers enter into any Alternative Excluded Asset Purchase Agreementavoidance of doubt, the term all references herein to “Excluded Asset Purchase Agreements” shall be deemed to include any Alternative such substitute purchase agreements); provided, that in the event that any such substitute Excluded Asset Purchase Agreement is less favorable in any material respect with respect to the extent then in effect. Without limiting the generality rights and obligations of the foregoingSurviving Company or the Acquired Companies, prior to it or any of its Subsidiaries entering into any such substitute Excluded Asset Purchase Agreements the obligations set forth in Company shall request the written consent of Parent, which may be denied for any reason (without prejudice to the rights of either party under Section 6.7(a) 8.1(i)). The Company shall promptly deliver to Parent a true, correct and Section 6.7(b) shall apply to complete copy of any Alternative amendment or documentation evidencing any modification or waiver to, or any new, replacement or substitute Excluded Asset Purchase Agreement. (b) Without prejudice to the foregoing, in the event that by the scheduled End Date all conditions to Closing set forth in Article 7 shall have been satisfied (or be capable of being satisfied at Closing) other than that an Excluded Asset Closing shall not have occurred with respect to one or more of the Excluded Assets shown on Schedule 1.1 of the Company Disclosure Schedule as being a “Redevelopment Asset”, then (i) the Company shall have the right, by written notice to Parent, to extend the End Date by up to 60 days to facilitate such Excluded Asset Closing(s) to occur on or prior to the Closing Date, and (ii) the parties hereto shall otherwise cooperate in good faith with each other as necessary to reach a mutually satisfactory resolution to such delayed Excluded Asset Closing(s) and to ensure that each party receives its respective rights and benefits set forth in this Agreement.

Excluded Asset Transactions. (a) The Company shall, and shall cause the other Excluded Asset Sellers and None of the Excluded Asset Companies to, cause owns or has any rights to any of the assets or properties used in the business conducted by the Company or the Acquired Companies other than the Excluded Asset Closings to occur Assets. Except as set forth in full on or prior to Section 4.22 of the Closing Date in accordance with the terms Company Disclosure Schedule, none of the Excluded Asset Purchase AgreementsCompanies has any Liabilities with respect to the Company Properties or under any Contract, understanding or arrangement. Except as set forth in Section 4.22 of the Company Disclosure Schedule, neither the Company nor any Acquired Company has any Liabilities with respect to the Excluded Assets or under any contract or arrangement of any Excluded Asset Company. (b) Notwithstanding anything to the contrary Except as set forth in this Agreement, including Section 6.1, 4.22 of the Company shall notDisclosure Schedule, as of the date hereof and shall cause upon the other Excluded Asset Sellers and the Excluded Asset Companies not to (i) agree to or effect any amendment or modification to, or any waiver under, or any termination consummation of the Excluded Asset Purchase AgreementsTransactions, including each Excluded Asset Company (i) is and will be Solvent, (ii) has and will have sufficient capital for carrying on its business and (iii) is and will be able to pay its debts as they mature. As used in this paragraph, the term “Solvent” means, with regards respect to a particular date, that on such date (A) expanding the conditions precedent to present fair market value (or present fair saleable value) of the assets of each Excluded Asset Closings, Company is not less than the total amount required to pay the Liabilities of such Excluded Asset Company on its total existing Liabilities (including contingent Liabilities) as they become absolute and matured; (B) extending the closing date thereunder or taking any action reasonably expected to delay or hinder the each Excluded Asset ClosingsCompany is able to pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (C) imposing any additional liability on, or otherwise expanding the obligations of, the no Excluded Asset Sellers, Company is incurring Liabilities beyond its ability to pay as such Liabilities mature; (D) reducing the amountno Excluded Asset Company is engaged in any business or transaction, or modifying the formproposes to engage in any business or transaction, of for which its property would constitute unreasonably small capital after giving due consideration to be paid for the prevailing practice in the industry in which any Excluded Assets or Asset Company is engaged; and (E) no Excluded Asset Company is otherwise modifying insolvent under the standards set forth in applicable Laws. (c) The Company has provided Parent with true and complete copies of the Excluded Asset Purchase Agreements in effect as of the date hereof and all schedules, annexes, exhibits and amendments thereto. As of the date hereof, no term of any respect, or (ii) assign any of their respective rights under the such Excluded Asset Purchase Agreements Agreement has been amended, modified or waived in a manner adverse to the rights and obligations of the Surviving Company or the Acquired Companies in any agreementmaterial respect, document or instrument contemplated thereby or executed in connection therewith, in each case without the prior written consent of Parent, which shall not be unreasonably withheld, delayed or conditioned (it being understood that any consent provided by Parent hereunder shall not and shall not be deemed to affect Parent’s closing conditions or constitute a waiver thereof). (c) In the event that any Excluded Asset Purchase Agreement is terminated by any other party thereto, the Company shall use its reasonable best efforts to, and to cause the other Excluded Asset Sellers and the Excluded Asset Companies to, enter into one or more substitute purchase agreements that are reasonably acceptable to Parent (each an “Alternative Excluded Asset Purchase Agreement”) and shall provide reasonable notice to Parent, and keep Parent reasonably apprised of the status and expectations related to any Alternative Excluded Asset Purchase Agreement. (d) In Each of the event that the Company and the other Excluded Asset Sellers enter into any Alternative had (or will have) as of the date of the Excluded Asset Purchase Agreement, Agreements and continues (or will continue) to have the term “requisite organizational power and authority to execute and deliver the Excluded Asset Purchase Agreements” shall be deemed , and has the requisite organizational power and authority to include any Alternative perform its obligations thereunder and to consummate the transactions contemplated thereby. The execution and delivery of the Excluded Asset Purchase Agreement to the extent then in effect. Without limiting the generality Agreements by each of the foregoingExcluded Asset Sellers, and the obligations set forth in Section 6.7(a) consummation by each of the Excluded Asset Sellers of the transactions contemplated thereby, have been duly and Section 6.7(b) shall apply validly authorized by all necessary organizational action, and no other organizational proceedings on the part of each of the Excluded Asset Sellers is necessary to any Alternative authorize the Excluded Asset Purchase AgreementAgreements or the consummation of the transactions contemplated thereby. Each of the Excluded Asset Purchase Agreements in effect as of the date hereof has been duly executed and delivered by each of the relevant Excluded Asset Sellers and, assuming such Excluded Asset Purchase Agreements were duly authorized, executed and delivered by the other parties thereto, constitutes a legally valid and binding obligation of each of the Excluded Asset Sellers, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). (e) The execution and delivery of the Excluded Asset Purchase Agreements by any of the Excluded Asset Sellers does not, and the performance of the Excluded Asset Purchase Agreements and the consummation of the transactions contemplated thereby by any of the Excluded Asset Sellers will not, (i) conflict with or violate any provision of the Company’s Organizational Documents or any equivalent organizational documents of any Company Subsidiary, (ii) conflict with or violate any Law applicable to the Company or any Company Subsidiary or by which any property or asset of the Company or any Company Subsidiary is bound or (iii) require any consent or approval under, result in any breach of or any loss of any benefit under, or result in the triggering of any payments pursuant to, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any right of termination, acceleration or cancellation of, or result in the creation of a Lien on any property or asset of the Company or any Company Subsidiary pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit or other legally binding obligation to which the Company or any Company Subsidiary is a party, except as to clauses (ii) and (iii), respectively, for any such conflicts, violations, breaches, defaults or other occurrences which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

Excluded Asset Transactions. (a) The Company shall, and shall cause the other Excluded Asset Sellers and None of the Excluded Asset Companies to, cause owns or has any rights to any of the assets or properties used in the business conducted by the Company or any Company Subsidiary other than the Excluded Asset Closings to occur Assets. Except as set forth in full on or prior to Section 4.25(a)(i) of the Closing Date in accordance with the terms Company Disclosure Letter, none of the Excluded Asset Purchase AgreementsCompanies has any liabilities or obligations with respect to the Excluded Assets or under any contract or arrangement. Except as set forth in Section 4.25(a)(ii) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary (other than the Excluded Asset Companies) has any liabilities or obligations with respect to the Excluded Assets or under any contract or arrangement of any Excluded Asset Company. (b) Notwithstanding anything The consideration provided pursuant to the contrary in this Agreement, including Section 6.1, the Company shall not, and shall cause the other Excluded Asset Sellers and the Excluded Asset Companies not to (i) agree to or effect any amendment or modification to, or any waiver under, or any termination of the Excluded Asset Purchase Agreements, including with regards to (A) expanding the conditions precedent to the Excluded Asset Closings, (B) extending the closing date thereunder or taking any action reasonably expected to delay or hinder the Excluded Asset Closings, (C) imposing any additional liability on, or otherwise expanding the obligations of, the Excluded Asset Sellers, (D) reducing the amount, or modifying the form, of consideration to be paid for the Excluded Assets or (E) otherwise modifying the Excluded Asset Purchase Agreements in any respect, or (i) is fair and reasonable and (ii) assign any constitutes reasonably equivalent value and fair consideration under Title 11 of their respective rights under the Excluded Asset Purchase Agreements or any agreement, document or instrument contemplated thereby or executed in connection therewith, in each case without the prior written consent of Parent, which shall not be unreasonably withheld, delayed or conditioned (it being understood that any consent provided by Parent hereunder shall not United States Code and shall not be deemed to affect Parent’s closing conditions or constitute a waiver thereof)other applicable Laws. (c) In the event that The Excluded Asset Transactions were not made to hinder, delay or defraud any creditor of any Excluded Asset Purchase Agreement is terminated by any other party thereto, the Company shall use its reasonable best efforts to, and to cause the other Excluded Asset Sellers and the Excluded Asset Companies to, enter into one or more substitute purchase agreements that are reasonably acceptable to Parent (each an “Alternative Excluded Asset Purchase Agreement”) and shall provide reasonable notice to Parent, and keep Parent reasonably apprised of the status and expectations related to any Alternative Excluded Asset Purchase AgreementCompany. (d) In the event that Except as set forth in Section 4.25(d) of the Company Disclosure Letter, as of the date hereof and upon the other consummation of the Excluded Asset Sellers enter into any Alternative Transactions, each Excluded Asset Purchase Company (i) is and will be Solvent, (ii) has and will have sufficient capital for carrying on its business and (iii) is and will be able to pay its debts as they mature. As used in this Agreement, the term “Solvent” means, with respect to a particular date, that on such date (A) the present fair market value (or present fair saleable value) of the assets of each Excluded Asset Purchase Agreements” shall be deemed Company is not less than the total amount required to include any Alternative pay the liabilities of such Excluded Asset Purchase Agreement Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (B) each Excluded Asset Company is able to pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (C) no Excluded Asset Company is incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (D) no Excluded Asset Company is engaged in any business or transaction, or proposes to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the extent then prevailing practice in effect. Without limiting the generality of industry in which any Excluded Asset Company is engaged; and (E) no Excluded Asset Company is otherwise insolvent under the foregoing, the obligations standards set forth in Section 6.7(a) and Section 6.7(b) shall apply to any Alternative Excluded Asset Purchase Agreementapplicable Laws.