Common use of FAILURE TO OBTAIN CONSENT Clause in Contracts

FAILURE TO OBTAIN CONSENT. If, with respect to any Leased Property, at any time a Lease Consent is formally and unconditionally refused in writing, ESS Technology and Vialta shall commence good faith negotiations and use commercially reasonable efforts to resolve the impasse with the Landlord. Such reasonable efforts shall include: 6.1 If requested by the Landlord, ESS Technology shall provide a guaranty, surety or other security (including, without limitation, a letter of credit) for the obligations of the tenant under the Relevant Lease. 6.2 If requested by the Landlord, ESS Technology or its Subsidiary shall accept an assignment of the Relevant Lease from Vialta or its Subsidiary and concurrently sublease the Relevant Lease back to Vialta or its Subsidiary, upon terms and conditions reasonably acceptable to the parties; provided, however, that Vialta's duties and obligations under such sublease shall be (i) no greater than ESS Technology's under the Relevant Lease and (ii) consistent with the fair market terms provided for comparable subleases for comparable properties in the vicinity of the Leased Property. 6.3 If the Landlord will not agree to the alternatives in Sections 6.1 or 6.2, (i) Vialta shall have the right to enter into a new and separate lease for other space in the geographic area of the Leased Property ("NEW PREMISES"), (ii) Vialta and ESS Technology shall negotiate with the Landlord for a termination of the Relevant Lease, and (iii) ESS Technology shall be responsible for, and shall indemnify, defend and hold harmless Vialta and its Subsidiaries from, all costs, expenses, damages and liabilities as a consequence of (a) the negotiation of and early termination of the Relevant Lease, (b) any failure of Vialta or its Subsidiaries to promptly vacate the Leased Property, (c) any enforcement or forfeiture action threatened or prosecuted by Landlord with respect to an alleged or actual breach of the Relevant Lease on the basis of Vialta's failure to obtain a Lease Consent or any other matter arising out of Vialta's rights and duties under the Distribution Agreements and the Ancillary Agreements, and (d) any moving and relocation costs incurred by Vialta or its Subsidiaries to the New Premises.

FAILURE TO OBTAIN CONSENT. IfNotwithstanding anything to the contrary contained in this Agreement or any Closing Agreement, to the extent that the transfer to Buyers of any Assigned Contract, Transferred Intellectual Property or Transferred License requires the authorization, approval, consent or waiver of, any Governmental Authority or any other Person, and Buyers, acting in their reasonable discretion, agree to waive the requirement that such Assigned Contract, Transferred Intellectual Property or Transferred License be conveyed as a condition to Closing and the Closing occurs without such authorization, approval, consent or waiver having been obtained, then neither this Agreement nor the transactions contemplated by any Closing Agreement shall constitute a transfer of such Assigned Contract, Transferred Intellectual Property or Transferred License, or an attempt thereof. In the event that Closing occurs without the transfer of such Assigned Contract, Transferred Intellectual Property or Transferred License, then, following Closing, each Party shall use its Commercially Reasonable Efforts, and shall cooperate with respect the other Party, to obtain promptly such authorizations, approvals, consents or waivers; provided, that neither Seller nor Buyers shall be required to pay any consideration for any such authorization, approval, consent or waiver (other than any applicable filing fees) or to agree to any Leased Propertyconditions or requirements which would reasonably be expected to have, at any time a Lease Consent is formally and unconditionally refused individually or in writing, ESS Technology and Vialta shall commence good faith negotiations and use commercially reasonable efforts to resolve the impasse with the Landlord. Such reasonable efforts shall include: 6.1 If requested by the Landlord, ESS Technology shall provide a guaranty, surety or other security (including, without limitationaggregate, a letter Material Adverse Effect on it. (a) Pending such authorization, approval, consent or waiver, the Parties shall cooperate with each other in any mutually agreeable, reasonable and lawful arrangements (to the extent any such arrangements are feasible) designed to provide to Buyers the benefits of credit) such Assigned Contract, Transferred Intellectual Property or Transferred License that Buyers would have obtained had such Assigned Contract, Transferred Intellectual Property or Transferred License been transferred to Buyers at Closing. To the extent Buyers are provided the benefits pursuant to this Section 5.13 of any such Assigned Contract, Transferred Intellectual Property or Transferred License, Buyers shall perform, for the benefit of Seller, the obligations of Seller thereunder and any related liability that, but for the tenant under lack of an authorization, approval, consent or waiver in connection with the Relevant Lease. 6.2 If requested by the Landlord, ESS Technology or its Subsidiary shall accept an assignment of the Relevant Lease from Vialta such Assigned Contract, Transferred Intellectual Property or its Subsidiary Transferred License to Buyers, would have constituted an Assumed Liability, and concurrently sublease the Relevant Lease back Seller shall assign to Vialta or its Subsidiary, upon terms and conditions reasonably acceptable to the parties; provided, however, that Vialta's duties and obligations under such sublease shall be (i) no greater than ESS Technology's under the Relevant Lease and (ii) consistent with the fair market terms provided for comparable subleases for comparable properties in the vicinity of the Leased Property. 6.3 If the Landlord will not agree to the alternatives in Sections 6.1 or 6.2, (i) Vialta shall have Buyers the right to enter into a new all receive all payments, proceeds and separate lease other monies due or payable thereunder and direct any payor to pay such payments, proceeds and other monies directly to Buyers. Once authorization, approval, consent or waiver for other space in the geographic area transfer of any such Assigned Contract, Transferred Intellectual Property or Transferred License not transferred at Closing is obtained, Seller shall transfer any such Assigned Contract, Transferred Intellectual Property or Transferred License to Buyers and, subject to the Leased Property ("NEW PREMISES")terms of Section 2.3 and 2.4, (ii) Vialta and ESS Technology the obligations of Seller associated therewith shall negotiate with the Landlord for a termination of the Relevant Lease, and (iii) ESS Technology shall thereupon be responsible for, and shall indemnify, defend and hold harmless Vialta and its Subsidiaries from, all costs, expenses, damages and liabilities as a consequence of (a) the negotiation of and early termination of the Relevant Lease, deemed Assumed Liabilities. (b) To the extent any failure such Assigned Contract, Transferred Intellectual Property or Transferred License cannot be transferred following Closing pursuant to this Section 5.13, Buyers and Seller shall cooperate reasonably in an effort to find and enter into mutually agreeable arrangements (including subleasing, sublicensing or subcontracting), if feasible, to provide the Parties the economic (taking into account Tax costs and benefits) and operational equivalent, to the extent permitted, of Vialta obtaining such authorization, approval, consent or its Subsidiaries to promptly vacate waiver and the Leased Property, (c) any enforcement or forfeiture action threatened or prosecuted performance by Landlord with respect to an alleged or actual breach Buyers of the Relevant Lease on obligations thereunder. If Seller receives any payments, proceeds or other monies in respect of such Assigned Contract, Transferred Intellectual Property or Transferred License in connection with the basis of Vialta's failure to obtain arrangements under this Section 5.13, Seller shall hold the same in a Lease Consent or any other matter arising out of Vialta's rights and duties under the Distribution Agreements and the Ancillary Agreementssegregated account in trust for Buyers, and (d) any moving and relocation costs incurred by Vialta or its Subsidiaries pay the same over to Buyers promptly upon receipt thereof without deduction. This Section 5.13 shall in all cases be limited to the New Premisesextent necessary not to result in a violation of applicable Law.

FAILURE TO OBTAIN CONSENT. IfNotwithstanding anything to the contrary contained in this Agreement, with respect the Assumption Agreement or the Xxxx of Sale, to the extent that the transfer to Buyer of any Leased PropertyAssumed Contract or Permit that is a Purchased Asset requires any governmental or third-party authorizations, at any time approvals, consents or waivers, and the Closing occurs without such authorization, approval, consent or waiver having been obtained, then neither this Agreement, the Assumption Agreement nor the Xxxx of Sale shall constitute a Lease Consent is formally and unconditionally refused in writingtransfer of such Assumed Contract or Permit, ESS Technology and Vialta or an attempt thereof. In the event that the Closing occurs without the transfer of such Assumed Contract, then, following the Closing, the parties shall commence good faith negotiations and use their commercially reasonable efforts efforts, and cooperate with each other, to resolve the impasse with the Landlord. Such reasonable efforts shall include: 6.1 If requested by the Landlordobtain promptly such authorizations, ESS Technology shall provide a guarantyapprovals, surety consents or other security (including, without limitation, a letter of credit) for the obligations of the tenant under the Relevant Lease. 6.2 If requested by the Landlord, ESS Technology or its Subsidiary shall accept an assignment of the Relevant Lease from Vialta or its Subsidiary and concurrently sublease the Relevant Lease back to Vialta or its Subsidiary, upon terms and conditions reasonably acceptable to the partieswaivers; provided, however, that Vialta's duties neither Seller nor Buyer shall be required to pay any consideration for any such authorization, approval, consent or waiver. Pending such authorization, approval, consent or waiver, the parties shall cooperate with each other in any mutually agreeable, reasonable and lawful arrangements (to the extent any such arrangements are feasible) designed to provide to Buyer the benefits of such Assumed Contract or Permit, that Buyer would have obtained had such Assumed Contract or Permit been transferred to Buyer at the Closing. To the extent that Buyer is provided the benefits pursuant to this Section 2.13 of any such Assumed Contract, Buyer shall perform, for the benefit of Seller, the obligations of Seller thereunder and any related Liabilities that, but for the lack of an authorization, approval, consent or waiver in connection with the assignment of such Assumed Contract to Buyer, would have become Liabilities of Buyer by virtue of Section 2.3(a). Once authorization, approval, consent or waiver for the transfer of any such Assumed Contract or Permit not transferred at the Closing is obtained, Seller shall transfer any such Assumed Contract or Permit to Buyer and Buyer shall assume obligations under such sublease Assumed Contracts in accordance with Section 2.3(a). To the extent that any such Assumed Contract or Permit cannot be transferred following the Closing pursuant to this Section 2.13, then Buyer and Seller shall be cooperate reasonably in an effort to find and enter into mutually agreeable arrangements (iincluding subleasing, sublicensing or subcontracting), if feasible, to provide the parties the economic (taking into account Tax costs and benefits) no greater than ESS Technology's under and operational equivalent, to the Relevant Lease extent permitted, of obtaining such authorization, approval, consent or waiver and (ii) consistent with the fair market terms provided for comparable subleases for comparable properties in the vicinity performance by Buyer of the Leased Property. 6.3 If the Landlord will not agree to the alternatives obligations thereunder. Seller shall hold in Sections 6.1 or 6.2, (i) Vialta shall have the right to enter into a new and separate lease for other space in the geographic area of the Leased Property ("NEW PREMISES"), (ii) Vialta and ESS Technology shall negotiate with the Landlord for a termination of the Relevant Lease, and (iii) ESS Technology shall be responsible trust for, and shall indemnify, defend and hold harmless Vialta and its Subsidiaries frompay to Buyer promptly upon receipt thereof, all costsincome, expenses, damages proceeds and liabilities as a consequence other monies received by Seller in respect of (a) Buyer’s performance of any such Assumed Contract in connection with the negotiation of and early termination of the Relevant Lease, (b) any failure of Vialta or its Subsidiaries to promptly vacate the Leased Property, (c) any enforcement or forfeiture action threatened or prosecuted by Landlord with respect to an alleged or actual breach of the Relevant Lease on the basis of Vialta's failure to obtain a Lease Consent or any other matter arising out of Vialta's rights and duties arrangements under the Distribution Agreements and the Ancillary Agreements, and (d) any moving and relocation costs incurred by Vialta or its Subsidiaries this Section 2.13. This Section 2.13 shall in all cases be limited to the New Premisesextent necessary not to result in a violation of applicable law.

FAILURE TO OBTAIN CONSENT. If, with respect to any Leased Property, at any time a Lease Consent is formally and unconditionally refused in writing, ESS Technology and Vialta shall commence good faith negotiations and use commercially reasonable efforts to resolve the impasse with the Landlord. Such reasonable efforts shall include: 6.1 If requested by the Landlord, ESS Technology shall provide a guaranty, surety or other security (including, without limitation, a letter of credit) for the obligations of the tenant under the Relevant Lease. 6.2 If requested by the Landlord, ESS Technology or its Subsidiary shall accept an assignment of the Relevant Lease from Vialta or its Subsidiary and concurrently sublease the Relevant Lease back to Vialta or its Subsidiary, upon terms and conditions reasonably acceptable Notwithstanding anything to the partiescontrary contained in this Agreement or any other Transaction Agreement, to the extent that the transfer to Buyer of any Assumed Contract or Permit that is an Acquired Asset requires any Governmental Authority or third-party authorizations, approvals, consents or waivers, and the Closing occurs without such authorization, approval, consent or waiver having been obtained, then neither this Agreement nor any other Transaction Agreement shall constitute a transfer of such Assumed Contract or Permit, or an attempt thereof. In the event that the Closing occurs without the transfer of such Assumed Contract or Permit, then, following the Closing, the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly such authorizations, approvals, consents or waivers; provided, however, that, except as otherwise expressly provided herein or as otherwise expressly set forth in any Assumed Contract, the Concentra Entities, on the one hand, and Coventry and Buyer, on the other, shall not be required to pay any consideration for any such authorization, approval, consent or waiver. Pending such authorization, approval, consent or waiver, the Parties shall cooperate with each other in any mutually agreeable, reasonable and lawful arrangements (to the extent any such arrangements are feasible) designed to provide to Buyer the benefits of such Assumed Contract or Permit, that Vialta's duties Buyer would have obtained had such Assumed Contract or Permit been transferred to Buyer at the Closing. To the extent that Buyer is provided the benefits pursuant to this Section 7.7 of any such Assumed Contract or Permit, Buyer shall perform, for the benefit of Concentra and its Subsidiaries, the obligations of Concentra and its Subsidiaries thereunder and shall be responsible for any related Liabilities that, but for the lack of an authorization, approval, consent or waiver in connection with the assignment of such Assumed Contract or Permit to Buyer, would have become Assumed Liabilities of Buyer by virtue of Section 2.4. Once authorization, approval, consent or waiver for the transfer of any such Assumed Contract or Permit not transferred at the Closing is obtained, Concentra shall transfer (or cause an Affiliate to transfer) any such Assumed Contract or Permit to Buyer and Buyer shall assume obligations under such sublease Assumed Contracts in accordance with Section 2.4. To the extent that any such Assumed Contract or Permit cannot be transferred following the Closing pursuant to this Section 7.7, then the Parties shall be cooperate reasonably in an effort to find and enter into mutually agreeable arrangements (i) no greater than ESS Technology's under including subleasing, sublicensing or subcontracting), if feasible, to provide the Relevant Lease Parties the economic and (ii) consistent with operational equivalent, to the fair market terms provided for comparable subleases for comparable properties in extent permitted, of obtaining such authorization, approval, consent or waiver and the vicinity performance by Buyer of the Leased Property. 6.3 If the Landlord will not agree to the alternatives obligations thereunder. Concentra and its Subsidiaries shall hold in Sections 6.1 or 6.2, (i) Vialta shall have the right to enter into a new and separate lease for other space in the geographic area of the Leased Property ("NEW PREMISES"), (ii) Vialta and ESS Technology shall negotiate with the Landlord for a termination of the Relevant Lease, and (iii) ESS Technology shall be responsible trust for, and shall indemnifypay to Buyer promptly upon receipt thereof, defend all income, proceeds and hold harmless Vialta other monies received by Concentra and its Subsidiaries from, in respect of Buyer’s performance of any such Assumed Contract in connection with the arrangements under this Section 7.7. This Section 7.7 shall in all costs, expenses, damages and liabilities as a consequence of (a) the negotiation of and early termination of the Relevant Lease, (b) any failure of Vialta or its Subsidiaries to promptly vacate the Leased Property, (c) any enforcement or forfeiture action threatened or prosecuted by Landlord with respect to an alleged or actual breach of the Relevant Lease on the basis of Vialta's failure to obtain a Lease Consent or any other matter arising out of Vialta's rights and duties under the Distribution Agreements and the Ancillary Agreements, and (d) any moving and relocation costs incurred by Vialta or its Subsidiaries cases be limited to the New Premisesextent necessary so as not to result in a violation of applicable law.