Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12. (b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.07, Buyer, Recruiter and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Samples: Asset Purchase Agreement (Recruiter.com Group, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.5, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver Consent of a Person who is not a party to this Agreement Party or an Affiliate of a party to this Agreement Party (including any Governmental Authority), and such consent, authorization, approval or waiver shall Consent has not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VIIVII (including the conditions that Seller deliver to Buyer each Assignment and Assumption of Lease, each Landlord Estoppel and each notice required to be given and Consent required to be obtained by Seller in connection with the execution and delivery of the Transaction Documents and the consummation of the Transactions), the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereofsuch Consent not having been obtained. Following the Closing, Seller, Buyer and Recruiter the Parties shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consentConsent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and the Assumed Liabilities after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefortherefor other than as expressly provided for under any applicable Contract. After the Closing and until such Consent is obtained, or if any attempted sale, assignment, transfer, conveyance or delivery would be ineffective or would impair Buyer’s rights under the relevant Purchased Asset such that Buyer would not in effect acquire the benefit of all such rights, Seller, to the extent permitted by applicable Law and such Purchased Asset, shall act as Buyer’s agent in order to obtain for Buyer the benefits under such Purchased Asset and cooperate with Buyer in any other reasonable arrangement designed to provide such benefits to Buyer and Buyer, to the extent permitted by applicable Law and such Purchased Asset, shall pay, perform and discharge the Liabilities incurred by Seller in obtaining such benefits. Once such consent, authorization, approval, waiver, release, substitution or amendment Consent is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment Consent relates for no additional consideration. Applicable sales, transfer and other similar Transfer Taxes in connection with such sale, assignment, transfer, conveyance or license delivery shall be paid by equally apportioned between Seller and Buyer and Recruiter in accordance with Section 6.123.4.
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.07, Buyer, Recruiter and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject nothing in this Agreement nor the consummation of the Transactions contemplated hereby shall be construed as an attempt or agreement to the provisions of this Section 2.07, to the extent that the sale, assignmentsell, transfer, conveyance assign, convey or deliverydeliver any Acquired Asset to Buyers (provided that this Section 2.5(a) shall not affect whether any asset, property or right shall be deemed to be an Acquired Asset or Assumed Liability for any other purpose under this Agreement), or attempted salefor Buyers to assume any Assumed Liability, assignmentin each case which is not transferable or non-assignable, transferas applicable, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require without the consent, authorization, approval consent or waiver of a Person who is not a third party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), in each case unless and until such consent, authorization, approval consent or waiver shall not have been obtained prior to the Closing(collectively, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof“Non-Assignable Assets”); provided, however, that, subject to the satisfaction or waiver of the conditions contained set forth in ARTICLE VIISection 4.3, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Buyer and Recruiter shall use commercially reasonable efforts.
(b) Seller shall, and shall cooperate with each othercause its Subsidiaries to, use their commercially reasonable efforts to obtain any such required consent, authorization, approval or waiverobtain, or to cause to be obtained, all consents, approvals and waivers required from a third party in connection with any releaseMaterial Non-Assignable Asset on terms that will ensure that Buyers and their Affiliates maintain and preserve the rights and benefits under the Material Non-Assignable Assets following the consummation of the Transactions that were enjoyed by Seller, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing its Affiliates as of the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Datedate hereof; provided, howeverthat, that neither Seller nor Buyer any Subsidiary thereof shall be required to pay any amounts or provide other consideration therefor. Once in connection with obtaining any such consent, authorizationapproval or waiver in connection with a Material Non-Assignable Asset. To the extent permitted by applicable Law, approvalin the event any such consent, waiverapproval or waiver cannot be obtained prior to Closing, releasethen from and after the Closing until such consent, substitution approval or amendment waiver shall have been obtained (or earlier termination or expiration of the applicable Contract), (i) Seller (x) with respect to each Non-Assignable Asset (other than the Specified Contract, if the Specified Contract is a Non-Assignable Asset), shall use commercially reasonable efforts to, and (y) with respect to the Specified Contract (if the Specified Contract is a Non-Assignable Asset), shall, in the case of clause (x) and clause (y), provide Buyer with the benefits under each Non-Assignable Asset as if such Non-Assignable Asset had been assigned to Buyer (including by means of any licensing, operating, subcontracting, sublicensing or subleasing arrangement and by paying over to Buyer any money or other consideration contemplated under Section 8.10(a)), (ii) Seller shall (and shall cause its Subsidiaries to) use commercially reasonable efforts to maintain good relations with any obligee or other counterparty in connection with such Non-Assignable Asset, (iii) Buyer (x) with respect to each Non-Assignable Asset (other than the Specified Contract, if the Specified Contract is a Non-Assignable Asset), shall use commercially reasonable efforts to, and (y) with respect to the Specified Contract (if the Specified Contract is a Non-Assignable Asset), shall, in the case of clause (x) and clause (y), pay, perform or otherwise discharge (in accordance with the respective terms and subject to the respective conditions thereof, and in the name of Seller) all of the covenants and obligations of Seller incurred with respect to such Non-Assignable Asset or any Transferred Contract under which Seller or its Subsidiaries have not been discharged fully from its or their obligations thereunder and (iv) Buyers and Seller shall mutually cooperate to provide any other alternative arrangements as may be reasonably required to implement the purposes of this Agreement and the other Transaction Agreements; provided, in each case, that neither Seller nor any Subsidiary thereof shall be required to incur any out-of-pocket costs. If and when such consent, approval or waiver is obtained, Seller shall, and shall cause its Subsidiaries to, sell, transfer, assign, transfer, convey and deliver such Non-Assignable Assets to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates Buyers for no additional consideration. Applicable salesNotwithstanding the foregoing, transfer and other similar Taxes in connection with such salerespect to any Non-Assignable Asset that is a Contract relating to Software, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12.
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing obligations of each Party pursuant to this Section 2.07, Buyer, Recruiter and Seller 2.5 shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to in no event extend beyond the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as one year anniversary of the Closing Date.
(c) In furtherance of, and without limiting or conditioning any of the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shallrights, as agent or subcontractor for Seller to payremedies, perform and discharge fully the liabilities liabilities, and obligations pursuant to this Agreement, including the other provisions of Seller thereunder from and after this Section 2.5, prior to the Closing Date. To the extent permitted under applicable Law, Seller each Party shall, at Buyer’s expenseand shall cause its Subsidiaries to, hold cooperate in trust for good faith to more fully document, in a form reasonably satisfactory to Seller and pay to Buyer promptly upon receipt thereofParent, such Purchased Asset and all incomethe undertakings set forth in Section 2.5(b)(iii)(y) of this Agreement, proceeds and other monies received by Seller including reasonably cooperating with the counterparty to the extent related Specified Contract to such Purchased Asset in connection with amend the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assetsexisting Specified Contract. Notwithstanding anything herein the foregoing sentence, the failure of the Parties (or their Subsidiaries) to the contraryreach such an agreement shall not impair, modify, delay, amend, or constitute a waiver of any of the provisions of this Agreement or the enforceability thereof, including the other provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.072.5.
Appears in 1 contract
Samples: Asset Purchase Agreement (Greenbrier Companies Inc)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and but subject to the provisions of this Section 2.077.8(a) and Section 7.12, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset or Assumed Liability would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver Consent of a Person who is not a party to this Agreement Party or an Affiliate of a party to this Agreement Party (including any Governmental Authority), and such consent, authorization, approval or waiver Consent shall not have been obtained prior to the ClosingClosing Date (such Purchased Assets and Assumed Liabilities, the “Restricted Items”), this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the ClosingClosing Date, Seller, the Seller Companies and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, Consent or any release, substitution or amendment required with respect to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or each Restricted Item, including with respect to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing DateNon-Assignable Shared Contracts; provided, however, that neither this Section 7.8(a) shall not be deemed to require the Seller nor Companies or Buyer shall be required to pay any material consideration therefortherefor or institute any Action. Once such consent, authorization, approval, waiver, Consent or any release, substitution or amendment is obtained, the applicable Seller Company shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset Restricted Item to which such consent, authorization, approval, waiver, Consent or any release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12.
(b) To the extent that any Purchased Asset or Assumed Liability Restricted Item cannot be transferred to or assumed by Buyer following the Closing Date pursuant to this Section 2.077.8(a), Buyer, Recruiter Parent and Seller Buyer shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting, or through the TSA) to provide to the parties under which (i) Buyer will obtain the economic rights and benefits and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability Restricted Item to Buyer as of the Closing Date; and (ii) Buyer shall assume the performance by Buyer obligations, including the economic burden, equivalent to the transfer of such Restricted Item and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for the applicable Seller to Company, pay, perform and discharge fully the liabilities and obligations Liabilities of such Seller Company thereunder arising from and after the Closing Date, including completing the work or providing the goods and services contemplated thereunder, and bearing all Taxes with respect thereto or arising therefrom. To Buyer shall promptly reimburse the extent permitted under applicable Law, reasonable out of pocket costs and expenses of such Seller shall, at Buyer’s expense, hold in trust for Company and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent their Affiliates related to such Purchased Asset in connection compliance with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.7.8
Appears in 1 contract
Samples: Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.071.9, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer Purchaser of any Purchased Acquired Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VIIArticle II, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Buyer Seller and Recruiter Purchaser shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Assumed Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter Purchaser shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer Purchaser shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer Purchaser the relevant Purchased Acquired Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.127.4.
(b) To the extent that any Purchased Acquired Asset or and/or Assumed Liability cannot be transferred to Buyer Purchaser following the Closing pursuant to this Section 2.071.9, Buyer, Recruiter Purchaser and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Acquired Asset or and/or Assumed Liability to Buyer Purchaser as of the Closing and the performance by Buyer and Recruiter Purchaser of its obligations with respect thereto. Buyer Purchaser shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s Purchaser's expense, hold in trust for and pay to Buyer Purchaser promptly upon receipt thereof, such Purchased Acquired Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Acquired Asset in connection with the arrangements under this Section 2.071.9. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Acquired Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.08, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the consummation of the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the consummation of the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once If and when such consent, authorization, approval, waiver, release, substitution approval or amendment waiver is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution approval or amendment waiver relates for no additional considerationconsideration and Buyer shall, without payment of any consideration therefor, assume from and after the date of such assignment the obligations thereunder (but only the obligations of Seller thereunder arising exclusively from, and accruing exclusively with respect to, the period after the date of such assignment (other than obligations thereunder arising as a result of the breach thereof at or prior to such assignment) and only to the extent that such obligations would have constituted Assumed Liabilities if such assignment had occurred on the Closing Date). Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.126.06.
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.08, Buyer, Recruiter and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties Buyer with the economic and, to the extent permitted under applicable Law, operational equivalent benefits of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect theretoClosing. Buyer shall, as agent or subcontractor for Seller Seller, to paythe extent permitted under applicable Law (but only to the extent Buyer shall receive the benefits thereunder pursuant to the prior sentence), perform and discharge fully assume the liabilities and obligations Liabilities of Seller thereunder from and after the date such benefits are provided to it (other than obligations thereunder arising as a result of the breach thereof at or prior the Closing and only to the extent that such obligations would have constituted Assumed Liabilities if such assignment had occurred on the Closing Date) but only for so long as such benefits are provided to it. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and shall pay to Buyer promptly upon receipt thereof, such Purchased Asset and thereof all income, proceeds and other monies received by Seller Seller, or any claim or right or any benefit arising thereunder to the extent that Buyer would be entitled thereto pursuant hereto, to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.072.08.
Appears in 1 contract
Non-Assignable Assets. (a) 2.8.1 Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.8, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer Purchaser of any Purchased Company Asset would result in a violation of applicable Lawlaw, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental AuthorityEntity), and such consent, authorization, approval or waiver shall not have been obtained prior to the ClosingClosing after the commercially reasonable effort by Company to obtain such consent, authorization, approval or waiver, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, that the Closing shall occur notwithstanding the foregoing without any adjustment to the Initial Purchase Price or other consideration on account thereof. Following the Closing, Seller, Buyer Company and Recruiter Purchaser shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts contracts or other liabilities that constitute Assumed Liabilities Obligations or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter Purchaser shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller Company nor Buyer Shareholder nor Purchaser shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller Company shall sell, assign, transfer, convey and deliver to Buyer Purchaser the relevant Purchased Company Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer transfer, and other similar Taxes in connection with such sale, assignment, transfer, conveyance conveyance, or license shall be paid by Buyer and Recruiter in accordance with Section 6.126.9.
(b) 2.8.2 To the extent that any Purchased Company Asset or and/or Assumed Liability Obligation cannot be transferred to Buyer Purchaser following the Closing pursuant to this Section 2.072.8, Buyer, Recruiter Purchaser and Seller Company shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Lawlaw, operational equivalent of the transfer of such Purchased Company Asset or and/or Assumed Liability Obligation to Buyer Purchaser as of the Closing and the performance by Buyer and Recruiter Purchaser of its obligations with respect thereto. Buyer Purchaser shall, as agent or subcontractor for Seller to Company pay, perform and discharge fully the liabilities and obligations of Seller Company thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller Company shall, at BuyerPurchaser’s expense, hold in trust for and pay to Buyer Purchaser promptly upon receipt thereof, such Purchased Company Asset and all income, proceeds and other monies received by Seller Company to the extent related to such Purchased Company Asset in connection with the arrangements under this Section 2.072.8. Seller Company shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Company Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Samples: Asset Purchase Agreement (Interpace Biosciences, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.9, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the ClosingClosing despite the efforts of the Parties pursuant to Section 10.2 hereof, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VIIArticle XI, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereofforegoing. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable best efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Assumed Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing DateLiabilities; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter Seller in accordance with Section 6.12Article XI.
(b) To the extent that any Purchased Asset or and/or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.9, Buyer, Recruiter Buyer and Seller shall use commercially reasonable best efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter Xxxxx of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.072.9. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. In the case Seller is unable to provide the Buyer the economic and operational equivalent of the transfer of such Purchased Asset as contemplated by this Section 2.9(b), then Seller shall reimburse Buyer for its reasonable cost of replacing such Purchased Asset. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 2.9 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.0710.1.
Appears in 1 contract
Samples: Asset Purchase Agreement (Eastern Bankshares, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.5, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall has not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VIISellers’ compliance with this Section 2.5, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, SellerSellers and Buyer shall use, Buyer each at its own cost and Recruiter shall use expense, commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller Sellers nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller Sellers shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Transfer Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.125.2(a) of this Agreement.
(b) To the extent that any Purchased Asset or and/or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.5, BuyerBuyer and Sellers shall use, Recruiter each at its own cost and Seller shall use expense, commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, Sellers shall hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller Sellers to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets2.5. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 2.5 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Samples: Asset Purchase Agreement (Avadel Pharmaceuticals PLC)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.9, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE Article VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, each of the Sellers and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller none of the Sellers nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller Sellers shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12.
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.9, Buyer, Recruiter Buyer and each Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability Liability, as the case may be, to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for each Seller to pay, perform and discharge fully the liabilities and obligations of each such Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, each Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by such Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.072.9. Each Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 2.9 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.076.7.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.10, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to the Buyer of any Purchased Acquired Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement Party or an Affiliate of a party to this Agreement Party (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VIISection 6, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereofPrice. Following the Closing, Seller, Buyer the Seller and Recruiter the Stockholders shall use commercially reasonable efforts, and shall cooperate with each other, Commercially Reasonable Efforts to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, the Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither the Seller nor the Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, the Seller shall sell, assign, transfer, convey and deliver to the Buyer the relevant Purchased Acquired Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by the Buyer and Recruiter the Seller in accordance with Section 6.1211.14.
(b) To the extent that any Purchased Acquired Asset or and/or Assumed Liability cannot be transferred to the Buyer following the Closing pursuant to this Section 2.072.10, Buyer, Recruiter the Buyer and the Seller shall use commercially reasonable efforts Commercially Reasonable Efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties Parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Acquired Asset or and/or Assumed Liability to the Buyer as of the Closing and the performance by the Buyer and Recruiter of its obligations with respect thereto. The Buyer shall, as agent or subcontractor for Seller to the Seller, pay, perform and discharge fully the liabilities and obligations of the Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, the Seller shall, at Buyer’s expense, shall hold in trust for and pay to the Buyer promptly upon receipt thereof, such Purchased Acquired Asset and all income, proceeds and other monies received by the Seller to the extent related to such Purchased Acquired Asset in connection with the arrangements under this Section 2.072.10. The Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Acquired Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Samples: Asset Purchase Agreement (Edgewater Technology Inc/De/)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.07, to the extent that the Agreement shall not constitute a sale, assignment, transfer, conveyance assignment or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer transfer of any Purchased Asset would result in a violation of if such sale, assignment or transfer: (i) violates applicable Law, ; or would require (ii) requires the consent, authorization, approval consent or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval consent or waiver shall has not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. .
(b) Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval consent or waiver, or any release, substitution or amendment required to novate all liabilities and obligations Liabilities under any and all Assigned Contracts or other liabilities Liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations Liabilities from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey assign and deliver transfer to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance assignment or license transfer shall be paid by Buyer and Recruiter in accordance with Section 6.125.04.
(bc) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.071.06, Buyer, Recruiter Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect theretoClosing. Buyer shall, as agent or subcontractor for Seller to Seller, pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller from and after the Closing Date, to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.071.05. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Samples: Asset Purchase Agreement (Agro Capital Management Corp.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.07, to the extent that the Agreement shall not constitute a sale, assignment, transfer, conveyance assignment or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer transfer of any Purchased Asset would result in a violation of if such sale, assignment or transfer: (i) violates applicable Law, ; or would require (ii) requires the consent, authorization, approval consent or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval consent or waiver shall has not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. .
(b) Following the Closing, Seller, the Selling Parties and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval consent or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities assumed Liabilities, if any, or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations Liabilities from and after the Closing Date; provided, however, that neither Seller no Selling Party nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller the Selling Parties shall sell, assign, transfer, convey assign and deliver transfer to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance assignment or license transfer shall be paid by Buyer and Recruiter in accordance with Section 6.125.2.
(bc) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.071.7, Buyer, Recruiter the Selling Parties and Seller Buyer shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing sublicensing, or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing DateClosing. To the extent permitted under applicable Law, Seller the Selling Parties shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller any Selling Party from and after the Closing Date, to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.071.7. Seller The Selling Parties shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Samples: Asset Purchase Agreement (Predictive Oncology Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.10, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement Party or an Affiliate of a party to this Agreement Party (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Sellers and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities liabilities, obligations, rights and obligations benefits under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or other assets that constitute Purchased Assets or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Dateand shall have the benefit of all such Purchased Assets after the Closing; provided, however, that neither Seller Sellers nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller Sellers shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.126.9.
(b) To the extent that any Purchased Asset or and/or Assumed Liability cannot be transferred to Buyer at or following the Closing pursuant to this Section 2.072.10, Buyer, Recruiter Buyer and Seller Sellers shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or and/or Assumed Liability to Buyer as of the Closing and the exercise by Buyer of its rights and the NYC#: 148660.21 performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to Sellers pay, perform and discharge fully the liabilities and obligations of Seller Sellers thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller Sellers shall, at Buyer’s expense, (i) hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller Sellers to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.072.10 and (ii) if requested by Buyer, enforce all rights of Sellers against the other party to such Purchased Asset. Seller Sellers shall be permitted to set off against such amounts all direct reasonably and properly incurred out-of-pocket costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of .
(c) Nothing in this Section 2.07 2.10, including any arrangement for Buyer to be provided with any of the benefits of such Purchased Asset, shall not apply constitute a waiver of Buyer’s right to any consent insist on the conditions to Closing set forth in Section 3.2 being satisfied in their entirety or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07a waiver of Buyer’s right to seek indemnification pursuant to ARTICLE VIII.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.08, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver Consent of a Person who is not neither a party to this Agreement or nor an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver Consent shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE Article VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, Consent or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiverConsent, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiverConsent, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.126.11.
(b) To Until such Consents, releases, substitutions or amendments are obtained, or to the extent that any Purchased Asset or and/or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.08, Buyer, Recruiter Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and), to the extent permitted under by applicable Law, intended to both (i) provide Buyer with the economic and operational equivalent benefit of the transfer of any such Purchased Asset or Assumed Liability Assets and (ii) cause Buyer to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder with respect to such Purchased Assets and Assumed Liabilities from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, shall hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.072.08. To the extent and for so long as Buyer obtains the benefit of any Purchased Asset pursuant to this Section 2.08(b), Buyer shall indemnify and hold Seller harmless from and against all Losses incurred by or asserted against Seller as a result of Seller’s direct or indirect ownership, management or operation of any such Purchased Asset. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 2.08 shall not apply to any consent or approval Consent required under any antitrust, competition or trade regulation Law, which consent or approval Consent shall be governed by Section 6.07.
(c) From the Closing Date until the date on which a Purchased Asset that is not sold, assigned, transferred, conveyed and delivered to Buyer at Closing is transferred to Buyer, in each case, in accordance with this Section 2.08:
(i) Buyer shall promptly notify Seller in writing of any notice or other communication from any Governmental Authority relating to such Purchased Asset, including, without limitation, any notices of default, cure notices or negative performance ratings;
(ii) Buyer shall promptly provide Seller a copy of any notice or other communication referenced in clause (i) above;
(iii) each Party, promptly after the receipt of any notice of default, cure notice or negative performance rating relating to such Purchased Asset, shall (A) consult and cooperate with the other Party, in all reasonable respects, in connection with (1) any communication and/or negotiations with the relevant Governmental Authority regarding such notice of default, cure notice or negative performance rating and (2) the development and implementation of the plan to remedy the actual or potential breach, default or performance issue relating to such notice of default, cure notice or negative performance rating, (B) make available to the other Party all records relating to such notice of default, cure notice or negative performance rating and (C) furnish, without expense, to the other Party, management employees of the such Party as may be reasonably necessary for any of the foregoing; and
(iv) with respect to the Government Contracts, Seller shall have the right to (A) review all books and records in Buyer’s possession relating to any audit conducted by a Government Authority that recommends a downward adjustment to the contract price, or disallowance of any cost incurred, of such Government Contract, (B) respond to any findings of a Governmental Authority during an audit that recommends a downward adjustment to the contract price, or disallowance of any cost incurred, of such Government Contract, (C) submit a claim to the contracting officer disputing any such downward adjustment to the contract price of such Government Contract, (D) file an appeal under such Government Contract’s disputes clause and under the Contract Disputes Act from any final decision of the contracting officer for such Government Contract relating to a downward adjustment to the contract price thereof and (E) meet with Buyer’s management employees as may be reasonably necessary for any of the foregoing.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable LawLaw (with the exception of federal laws relating to marijuana as a controlled substance), or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including excluding any Governmental State or Denver Licensing Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE Article VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each otherother understanding that time is of the essence, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.126.10.
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.07, Buyer, Recruiter Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) ), to the extent permitted under applicable Law, to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.076.06.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary Nothing in this Agreement, and subject Agreement nor the consummation of the Transactions shall be construed as an attempt or agreement to the provisions of this Section 2.07, to the extent that the sale, assignmentsell, transfer, conveyance assign, convey or deliverydeliver any asset, property or attempted sale, assignment, transfer, conveyance or delivery, right to Buyer of (provided, that this Section 1.4(a) shall not affect whether any Purchased asset, property or right shall be deemed to be an Acquired Asset would result in a violation of for any other purpose under this Agreement) which by its terms or by applicable LawLegal Requirement is not transferable or assignable, or would require as applicable, without the consent, authorization, approval consent or waiver of a third Person who or is not cancelable by a party to this Agreement third Person in the event of such a transfer or an Affiliate assignment without the consent or waiver of a party to this Agreement such third Person (including any Governmental Authoritycollectively, “Non-Assignable Assets”), in each case unless and until such consent, authorization, approval consent or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereofobtained. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall reasonably cooperate with each other, to obtain any such required consent, authorization, approval consent or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once ; provided further, that, subject to the foregoing, such consent, authorization, approval, waiver, release, substitution or amendment is obtained, cooperation by Seller shall sellinclude, assignwithout limitation, transfer, convey promptly (but in any event within five (5) business days after the Closing) delivering written notice to the Taxi & Limousine Commission of New York City (the “TLC”) (x) informing the TLC that Seller has transferred certain of its advertising business and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes assets in connection with the transactions contemplated hereby and (y) identifying all medallions/“SHLs” that hold permits related to such sale, assignment, transfer, conveyance or license shall be paid by transferred advertising business and assets based on the list that Buyer and Recruiter in accordance with Section 6.12made available to Seller prior to the Closing.
(b) To the extent permitted by applicable Legal Requirement, in the event that any Purchased Asset written consents or Assumed Liability waivers to the assignment thereof cannot be transferred to Buyer following the Closing pursuant to this Section 2.07, Buyer, Recruiter and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide obtained prior to the parties the economic andClosing, to the extent permitted under applicable Lawsuch Non-Assignable Assets shall be held, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date, by Seller in trust for Buyer, and all of Seller’s benefits thereunder (excluding, for the avoidance of doubt, Seller’s benefits thereunder relating to Accounts Receivable) shall be for Buyer’s account. To the extent permitted under applicable Law, Seller shallshall take or cause to be taken, at Buyer’s expense, hold such actions in trust for and pay its name or otherwise as Buyer may reasonably request so as to provide Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with benefits of the retention and maintenance of such Purchased Non-Assignable Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.09, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party Party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller shall, at Seller’s expense, Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each otherBuyer, to obtain any such required consent, authorization, approval or waiver, or any release, novation, substitution or amendment required for the assignment to novate all liabilities and obligations under any and all Buyer of the Assigned Contracts or other liabilities that constitute with respect to the assumption by Buyer of the Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing DateLiabilities; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefortherefor unless so agreed by the Parties or provided in the applicable Contract. Once such consent, authorization, approval, waiver, release, substitution substitution, novation, or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution substitution, novation, or amendment relates for no additional consideration. Applicable sales, transfer transfer, and other similar Taxes in connection with such sale, assignment, transfer, conveyance conveyance, or license shall be paid by Buyer and Recruiter Seller in accordance with Section 6.126.06.
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.09, Buyerand in any event if such transfer has not occurred on or prior to the date that is 120 days following the Closing Date, Recruiter Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties Parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and Closing. To the performance by Buyer and Recruiter of its obligations with respect thereto. extent permitted under applicable Law, Buyer shall, as agent or subcontractor for Seller to Seller, pay, perform perform, and discharge fully the liabilities and obligations of Seller thereunder such Assumed Liabilities from and after the Closing Date, provided, however, that Seller shall, promptly (and in any event within ten (10) business days or such longer period as is required by such Assigned Contract) upon written request by Buyer, terminate any Assigned Contract or engagement giving rise to any such Assumed Liability in accordance with its terms to be effective as of the date requested by Buyer (or such later date as is required by the applicable Assigned Contract). To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, shall hold in trust for and pay to Buyer promptly upon receipt thereof, any such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.072.09. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.7, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE Article VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following For a period of six (6) months after the Closing, Sellerat Buyer’s request, Buyer and Recruiter shall use commercially reasonable efforts, and Seller shall cooperate with each other, Buyer to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all material Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12.
(b) To the extent that any material Purchased Asset or and/or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.7, Buyer, Recruiter Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, shall hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets2.7. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 2.7 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.076.4.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.9, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Transferred Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, Article VII the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Sellers and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller Sellers nor Buyer shall be required to pay any consideration or incur any unreasonable expense therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller Sellers shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Transferred Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12Buyer.
(b) To the extent that any Purchased Transferred Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.9, Buyer, Recruiter Buyer and Seller Sellers shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Transferred Asset or and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to Sellers pay, perform and discharge fully the liabilities and obligations of Seller Sellers thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller Sellers shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Transferred Asset and all income, proceeds and other monies received by Seller Sellers to the extent related to such Purchased Transferred Asset in connection with the arrangements under this Section 2.072.9. Seller Sellers shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Transferred Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.071.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Lawlaw, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VIIArticle VI, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or transfer the same to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing DateBuyer; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, approval waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, approval waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.125.03.
(b) To the extent that any Purchased Asset or and/or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.071.07, Buyeron the condition that Seller shall not be required to pay any cost or consideration therefor, Recruiter Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s 's expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.071.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Samples: Asset Purchase Agreement (Select-Tv Solutions, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE Article VII, if Buyer, at its sole option, waives the condition in Section 7.01(c), the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing DateEffective Time; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor, unless the agreement being assigned requires payment of a de minimis review fee or similar fee, in which case, Seller shall be responsible for such payment. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter Seller in accordance with Section 6.126.14.
(b) To the extent that any material asset of Seller utilized in connection with the Business on a non-exclusive basis, including a Contract that is not an Assigned Contract (a "Shared Contract"), or any Purchased Asset or and/or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.07, Buyer, Recruiter Buyer and Seller shall provide, pursuant to the Transition Services Agreement or Section 6.17, or use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide provide, to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Shared Contract or Purchased Asset or and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto; provided that Buyer acknowledges that certain human resources, travel, corporate development, commercial banking, legal, accounting, finance, vendor management, insurance and tax-related functions provided to the Business by the Seller will be taken over by Buyer at the Closing. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing DateEffective Time. To the extent permitted under applicable Law, Seller shall, at Buyer’s 's expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Shared Contract or Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Shared Contract or Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07. Following the Closing, Seller and Buyer shall use commercially reasonable efforts, and shall cooperate with each other, to obtain the agreement of the counterparties to any Shared Contracts to enter into new, separate Shared Contracts relating to the services of the respective businesses of Buyer and Seller.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Customers Bancorp, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.08 and without limiting the provisions of Section 7.01(g), to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer Purchaser of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement and the closing of the transactions contemplated hereby shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE Article VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the ClosingClosing and except for customer contracts (other than bundled Contracts that relate to both the Business and Seller’s EAS or other businesses (“Bundled Contracts”)) or vendor contracts of the Business, Seller, Buyer Seller and Recruiter Purchaser shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiverwaiver that is material to the Business, or any release, substitution or amendment required to novate all liabilities and obligations under any and all material Assigned Contracts, Bundled Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter the applicable Purchaser shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, the applicable Seller shall sell, assign, transfer, convey and deliver to Buyer the applicable Purchaser the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.126.13.
(b) To the extent that any Purchased Asset or and/or Assumed Liability cannot be transferred to Buyer Purchaser following the Closing pursuant to this Section 2.072.08(a), Buyer, Recruiter Purchaser and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or and/or Assumed Liability to Buyer the applicable Purchaser as of the Closing and the performance by Buyer and Recruiter the applicable Purchaser of its obligations with respect thereto. Buyer The applicable Purchaser shall, as agent or subcontractor for the applicable Seller to pay, perform and discharge fully the liabilities and obligations of the applicable Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, the applicable Seller shall, at Buyerthe applicable Purchaser’s expense, hold in trust for and pay to Buyer the applicable Purchaser promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.072.08. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 2.08 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.076.06.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.09, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including including, without limitation, any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE Article VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates relates, for no additional consideration, shall automatically assign, transfer, convey and deliver to Buyer. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12.
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.09, Buyer, Recruiter Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.072.09. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 2.09 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Samples: Asset Purchase Agreement (Recruiter.com Group, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Buyer and Recruiter at its expense, shall use commercially its reasonable efforts, and shall cooperate with each other, best efforts to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Datewaiver as promptly as possible; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once If any such consent, authorization, approval, waiver, release, substitution approval or amendment is obtained, Seller waiver shall sell, assign, transfer, convey and deliver to Buyer not be obtained or if any attempted assignment would be ineffective or would impair Buyer’s rights under the relevant Purchased Asset in question so that Buyer would not in effect acquire the benefit of all such rights, Seller, to which the maximum extent permitted by Law and the Purchased Asset, shall act after the Closing as Buyer’s agent in order to obtain for it the benefits thereunder and shall cooperate, to the maximum extent permitted by Law and the Purchased Asset, with Buyer in any other reasonable arrangement designed to provide such benefits to Buyer; provided, that Buyer shall undertake to pay or satisfy the corresponding Liabilities for the enjoyment of such benefit to the extent Buyer would have been responsible therefor hereunder if such consent, authorization, approval, waiver, release, substitution approval or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12waiver had been obtained.
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.07, Buyer, Recruiter and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.08, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate a Subsidiary of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereofof such Purchased Asset; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Closing Purchase Price on account thereof. Following the Closing, SellerSeller and Buyer shall, Buyer and Recruiter Seller shall cause its Subsidiaries to, use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations Liabilities under any and all Assigned Contracts or other liabilities Liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing DateLiabilities; provided, however, that neither Seller (nor any of its Subsidiaries) nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller or its applicable Subsidiary shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.126.05.
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.08, Buyer, Recruiter Buyer and Seller shall use commercially reasonable efforts efforts, and Seller shall cause its Subsidiaries to use their commercially reasonable efforts, to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to (or its applicable Subsidiary), pay, perform and discharge fully the liabilities and obligations Liabilities of Seller thereunder from and after the Closing Date(or its applicable Subsidiary) thereunder. To the extent permitted under applicable Law, Seller shall, at Buyer’s 's expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.072.08. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Non-Assignable Assets. (a) 7.6.1 Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.07Section, to the extent that the sale, assignment, transfer, conveyance conveyance, or delivery, or attempted sale, assignment, transfer, conveyance conveyance, or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval approval, or waiver of a Person (including any Governmental Authority) who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority)Agreement, and such consent, authorization, approval approval, or waiver shall has not have been obtained prior to by the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance conveyance, or delivery, or an attempted sale, assignment, transfer, conveyance conveyance, or delivery, thereofof such Asset; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, that the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereofPrice. Following the Closing, Seller, Sellers and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval approval, or waiver, or any release, substitution substitution, or amendment required to novate all liabilities and obligations Liabilities under any and all Assigned Contracts or other liabilities Liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations Liabilities from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution substitution, or amendment is obtained, the applicable Seller shall sell, assign, transfer, convey convey, and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution substitution, or amendment relates for no additional consideration. Applicable sales, transfer transfer, and other similar Taxes in connection with such sale, assignment, transfer, conveyance conveyance, or license shall be paid by Buyer and Recruiter in accordance with Section 6.12Sellers.
(b) 7.6.2 To the extent that any Purchased Asset or and/or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.07Section, Buyer, Recruiter Buyer and Seller Sellers shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing sublicensing, or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to Sellers pay, perform perform, and discharge fully the liabilities and obligations Liabilities of Seller Sellers thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller Notwithstanding anything to the extent related to such Purchased Asset contrary in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contraryAgreement, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition competition, or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.08, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE Article VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Sellers and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller Sellers nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller Sellers shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12.
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.08, Buyer, Recruiter Buyer and Seller Sellers shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to Sellers pay, perform and discharge fully the liabilities and obligations of Seller Sellers thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller Sellers shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller Sellers to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.072.08. Seller Sellers shall be permitted to set off against such amounts all reasonable direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 2.08 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Samples: Asset Purchase Agreement (Esports Entertainment Group, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.5, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained herein, including those conditions set forth in ARTICLE VIISection 5 hereof (it being understood that unless Buyer waives such conditions in writing then the Closing shall not occur), the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable best efforts, and shall cooperate with each other, other to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities Purchased Assets or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations benefit from the Purchased Assets from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter the parties in accordance with Section 6.12.
(b) the terms herein. To the extent that any Purchased Asset or and/or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.5, BuyerBuyer and Seller, Recruiter to the maximum extent permitted by Law, shall, and Seller shall use commercially reasonable efforts to cause its Affiliates to, enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, and to the extent (i) permitted under applicable LawLaw and (ii) not prohibited by the Purchased Asset, operational equivalent of the transfer of such Purchased Asset or and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shallTo the extent such an arrangement cannot be entered into, as agent or subcontractor for Seller shall (a) use commercially reasonable best efforts to pay, perform and discharge fully the liabilities and obligations enforce any rights of Seller thereunder arising from such Purchased Asset (including, without limitation, a right of termination) and after the Closing Date. (b) indemnify and hold harmless each Buyer Indemnified Party from any and all damages incurred or suffered by a Buyer Indemnified Party resulting from, arising out of or related to such arrangement not being obtained.. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, shall hold in trust for and give/pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.072.5.
Appears in 1 contract
Samples: Asset Purchase Agreement
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.8, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, that the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following For a period of one year after the Closing, at Seller’s expense, Buyer and Recruiter shall use commercially reasonable efforts, and Seller shall cooperate with each other, Buyer to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all material Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such all liabilities and obligations obligations, and shall enjoy the benefit of all rights, arising thereunder, from and after the Closing Date; provided. Notwithstanding the foregoing, however, Buyer agrees and acknowledges that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtainedof the consents listed on Schedule 4.3, Seller shall sellonly be obligated to obtain the Required Consents. Furthermore, assignas promptly as possible after the Closing, transferwith respect to the Material Contracts set forth on Schedule 2.8 (the “Master Leases”), convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter Seller shall cooperate to take any actions reasonably necessary to effect the transfer of the leases of particular equipment under the Master Lease, while not transferring the Master Lease itself. If such transfers are not effected within six months of Closing, Seller shall have no further obligations with respect to the leases of the particular equipment subject to the Master Leases and may terminate such leases in accordance with Section 6.12its discretion.
(b) To the extent that any material Purchased Asset or and/or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.8, Buyer, Recruiter Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at BuyerSeller’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.072.8. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to If any of the contrary Purchased Contracts or other Purchased Assets are not assignable or transferable in this Agreementconnection with the Transactions (each, a “Non-Assignable Asset”) without the Consent of, or waiver by, a third party, (each, an “Assignment Consent”), either as a result of the provisions thereof or applicable Laws, and subject to any of such Assignment Consents are not obtained by the provisions of this Section 2.07, to the extent that the sale, assignment, transfer, conveyance Sellers on or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement and the related instruments of transfer shall not constitute a salean assignment or transfer of such Non-Assignable Assets, assignment, transfer, conveyance and the Purchaser shall not assume the Sellers’ rights or deliveryobligations under such Non-Assignable Asset (and such Non-Assignable Asset shall not be included in the Purchased Assets until such Assignment Consent is obtained) until such time as the applicable Assignment Consent of, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VIIby, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Dateapplicable third party is obtained; provided, however, that neither the foregoing shall not limit or affect any of the representations and warranties of the Company contained in Article 5 of the other covenants and agreements of the Sellers hereunder.
(b) In any such case, without limiting Section 8.13, each of the Company and the Purchaser shall, and the Company shall cause the other Sellers to, use reasonable best efforts to obtain, as soon as practicable, such Assignment Consent. Each of the Company and the Purchaser acknowledges and agrees that, prior to any Seller nor Buyer or Purchaser seeking any such Assignment Consent, the Company shall consult with the Purchaser or Purchaser shall consult with the Company, as applicable, with respect to any proposed written notice and/or consent request and generally develop with each other a mutually agreeable communications plan regarding the procurement of such Assignment Consents and that all communications (written or oral) with third parties in connection with the procurement of such Assignment Consents shall be required to pay consistent with the foregoing. Upon receipt of any consideration therefor. Once such consentAssignment Consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller the applicable Sellers shall promptly sell, assign, transfer, convey and deliver to Buyer the relevant such Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates the Purchaser for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12.
(bc) To Until such Assignment Consents shall have been obtained, each of the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following Company and Purchaser shall, and the Closing pursuant to this Section 2.07Company shall cause the other Sellers to, Buyer, Recruiter and Seller shall use commercially reasonable best efforts to enter into such arrangements (such as subleasingeffect a mutually-agreeable alternate arrangement, sublicensing in the form of a subcontract, sublease, or subcontracting) to provide to other arrangement, which results in the parties Purchaser receiving the economic andbenefits of, performing the obligations under, and bearing the costs, Liabilities and other obligations with respect to, each Non-Assignable Asset to the extent permitted under by applicable Law. In connection therewith, operational equivalent of (i) the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer Company shall, as agent or subcontractor for Seller and shall cause the other Sellers to, promptly remit to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and Purchaser when received all income, proceeds and other monies received by Seller Sellers or any of its Affiliates in respect of any such Non-Assignable Asset or any claim or right or any benefit arising thereunder or resulting therefrom and (ii) (A) the Purchaser shall bear, and indemnify the Sellers for, all the costs (including Tax costs), Liabilities, burdens and other Liabilities incurred with respect to any such Non-Assignable Asset to the extent related that Purchaser receives the corresponding benefits of or with respect to such Non-Assignable Asset and (B) the Purchaser shall promptly reimburse the Company and/or the Sellers for any such costs (including Tax costs), Liabilities and other obligations in respect of any such Non-Assignable Asset. Without limiting the foregoing, if a Purchased Asset in connection with Contract (or rights thereunder) cannot be assigned to Purchaser, then, upon Purchaser’s reasonable request and at Purchaser’s direction and expense, the arrangements under this Section 2.07. Seller Company shall, and shall cause the other Sellers to, enforce such agreements, covenants and obligations for the benefit of Purchasers to the maximum extent permitted by applicable Laws until such time as the applicable Purchased Contract can be permitted assigned to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased AssetsPurchaser. Notwithstanding anything herein in this Agreement to the contrary, the provisions of nothing in this Section 2.07 2.5 shall require Sellers or their respective Representatives to take any action that would constitute a breach or other contravention of the rights of any Person(s), be ineffective under, or contravene, applicable Law or any Non-Assignable Asset or Purchased Contract that cannot apply be assigned to Purchaser.
(d) Notwithstanding anything in this Agreement to the contrary (including this Section 2.5), none Purchaser, Parent, the Sellers or any consent of their respective Affiliates or approval Representatives shall have any obligation to make any payments or other concession or incur any Liability, or commence or participate in any Action, to obtain any Consents of, or waivers by, third parties or effect the arrangements contemplated by this Section 2.5.
(e) For income Tax purposes, the Parties shall treat any transfer set forth in this Section 2.5 as having occurred at the Closing, except to the extent otherwise required under any antitrust, competition or trade regulation by Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.09, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE Article VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, the Seller Parties and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date and solely benefit from the Assigned Contracts from and after the Closing Date; provided, however, that neither the Seller Parties nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, the Seller Parties shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter the parties in accordance with Section 6.126.08.
(b) To the extent that any Purchased Asset or and/or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.09, Buyer, Recruiter Buyer and the Seller Parties shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. To the extent permitted under applicable Law, Buyer shall, as agent or subcontractor for the Seller to Parties pay, perform and discharge fully the liabilities and obligations of the Seller Parties thereunder from and after the Closing Date. To the extent permitted under applicable Law, the Seller Parties shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by the Seller Parties to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.072.09. Seller Each party shall be permitted permitted, as applicable, to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to Assets and all direct costs associated with the contrarypayment, performance and discharge of the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07liabilities and obligations.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.07, to the extent that the sale, assignment, transfer, conveyance or Asset Purchase Agreement 7/15/13 delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset or Assigned Contract would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any leases or Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not still constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereofall other assets and assigned contracts. Following the Closing, Seller, Buyer and Recruiter Parties shall use commercially reasonable best efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required the consent relating to novate all liabilities and obligations under any and all each Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing DateContract as quickly as practicable; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment consent for the assignment and assumption is obtained, Seller shall sell, promptly assign, transfer, convey and deliver such to Buyer, and Buyer shall assume the obligations assigned to Buyer from and after the relevant Purchased Asset date of assignment to which such consent, authorization, approval, waiver, release, substitution or amendment relates for Buyer (all at no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12cost to Buyer).
(b) To Without limiting the extent that generality of the foregoing, if any Purchased Asset Assigned Contract is not able to be assigned or Assumed Liability canif Seller is not be transferred able to obtain any required consent to the assignment of an Assigned Contract at Closing, Buyer following shall (i) assume and perform the Closing pursuant to this Section 2.07, Buyer, Recruiter obligations of Seller under the Assigned Contracts and (ii) Buyer shall receive all of the economic and other benefits under such Assigned Contracts. Buyer and Seller shall take such actions as may be required, including executing subcontracts, subleases, or other agreements, to carry out the intent of this Section 2.7; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Buyer shall use commercially all reasonable efforts to enter into invoice third parties for services rendered without the assistance of Seller. If necessary, Buyer shall perform under such arrangements (such contracts as subleasing, sublicensing or subcontracting) a subcontractor to provide to Seller using the parties same terms as the economic and, to between the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing Seller and the performance by Buyer and Recruiter of its obligations with respect theretoapplicable third party. Buyer shall, as agent or subcontractor shall indemnify and hold Seller harmless for Seller to pay, perform any and discharge fully all claims and causes of action arising from the liabilities and obligations performance of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, work under such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07contracts. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with create an escrow account for the retention and maintenance deposit of any proceeds of such Purchased Assetswork for the sole benefit of Buyer. Notwithstanding anything herein Buyer shall pay for the costs of such escrow. The intent of the parties is to allow Buyer to perform on the contrary, Assigned Contracts during the provisions process of obtaining assignment from third parties and the parties agree to fully cooperate with each other in this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07process.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.11, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorizationauthorization or approval (or waiver of such requirement) for the valid sale, approval assignment, transfer, conveyance or waiver, or any release, substitution or amendment required delivery of the Purchased Assets which are subject to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or the provisions of this Section 2.11 to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing DateBuyer; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution approval or amendment waiver is obtained, Seller shall sellbe deemed to have sold, assignassigned, transfertransferred, convey conveyed and deliver delivered to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution approval or amendment waiver relates for no additional considerationconsideration hereunder. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.126.9.
(b) To the extent that any Purchased Asset or and/or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.11, Buyer, Recruiter Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties Parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto, including, without limitation, by providing to Buyer, to the fullest extent practicable, the claims, rights and benefits of any such Purchased Assets. In furtherance of the foregoing, to the extent permitted under applicable Law, (i) Buyer shall, as agent or subcontractor for Seller to Seller, pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, and (ii) Seller shall, at BuyerSeller’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets2.11. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 2.11 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.076.5.
Appears in 1 contract
Samples: Asset and Equity Purchase Agreement (Asure Software Inc)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or Assigned Contract would require the consent, authorization, approval or waiver of a Person person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority)Agreement, and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not still constitute a sale, assignment, transfer, conveyance or delivery, of all other assets and assigned contracts. Notwithstanding anything to the contrary in this Agreement to the extent the sale, assignment, transfer, conveyance or an delivery, or attempted sale, assignment, transfer, conveyance or delivery, thereof; providedto Buyer of any Purchased Asset or Assigned Contract would result in a violation of applicable law or require the consent of a governmental authority and such consent, howeverauthorization, that, subject to the satisfaction approval or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment not have been obtained prior to the Purchase Price on account thereof. Following the Closing, Sellerthis Agreement shall constitute a sale, Buyer assignment, transfer, conveyance or delivery, of all other assets and Recruiter assigned contracts. In such event the sale, assignment, transfer, conveyance or delivery shall be automatically effectual on such consent. Parties shall use commercially reasonable best efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required the consent relating to novate all liabilities and obligations under any and all each Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing DateContract as quickly as practicable; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment consent for the assignment and assumption is obtained, Seller shall sell, promptly assign, transfer, convey and deliver such to Buyer, and Buyer shall assume the obligations assigned to Buyer from and after the relevant Purchased Asset date of assignment to which such consent, authorization, approval, waiver, release, substitution or amendment relates for Buyer (all at no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12.cost to Buyer); and
(b) To Without limiting the extent that generality of the foregoing, if any Purchased Asset Assigned Contract is not able to be assigned, or Assumed Liability canif Seller is not be transferred able to obtain any required consent to the assignment of an Assigned Contract at Closing, Buyer following shall (i) assume and perform the Closing pursuant to this Section 2.07obligations of Seller under the Assigned Contracts, Buyer, Recruiter and (ii) receive all of the economic and other benefits under such Assigned Contracts. Buyer and Seller shall take such actions as may be required, including executing subcontracts, subleases, or other agreements, to carry out the intent of this Section 2.7; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Buyer shall use commercially all reasonable efforts to enter into invoice third parties for services rendered without the assistance of Seller. If necessary, Buyer shall perform under such arrangements (such contracts as subleasing, sublicensing or subcontracting) a subcontractor to provide to Seller using the parties same terms as between the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing Seller and the performance by Buyer and Recruiter of its obligations with respect theretoapplicable third party. Buyer shall, as agent or subcontractor shall indemnify and hold Seller harmless for Seller to pay, perform any and discharge fully all claims and causes of action arising from the liabilities and obligations performance of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, work under such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07contracts. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated create an escrow account (with Buyer’s lender) for the retention and maintenance deposit of any proceeds of such Purchased Assetswork for the sole benefit of Buyer. Notwithstanding anything herein Buyer shall pay for the costs of such escrow. The intent of the parties is to allow Buyer to perform on the contrary, Assigned Contracts during the provisions process of obtaining assignment from third parties and the parties agree to fully cooperate with each other in this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07process.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset or Assigned Contract would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any leases or Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not still constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereofall other assets and assigned contracts. Following the Closing, Seller, Buyer and Recruiter Parties shall use commercially reasonable best efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required the consent relating to novate all liabilities and obligations under any and all each Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing DateContract as quickly as practicable; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment consent for the assignment and assumption is obtained, Seller shall sell, promptly assign, transfer, convey and deliver such to Buyer, and Buyer shall assume the obligations assigned to Buyer from and after the relevant Purchased Asset date of assignment to which such consent, authorization, approval, waiver, release, substitution or amendment relates for Buyer (all at no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12cost to Buyer).
(b) To Without limiting the extent that generality of the foregoing, if any Purchased Asset Assigned Contract is not able to be assigned or Assumed Liability canif Seller is not be transferred able to obtain any required consent to the assignment of an Assigned Contract at Closing, Buyer following shall (i) assume and perform the Closing pursuant to this Section 2.07, Buyer, Recruiter obligations of Seller under the Assigned Contracts and (ii) Buyer shall receive all of the economic and other benefits under such Assigned Contracts. Buyer and Seller shall take such actions as may be required, including executing subcontracts, subleases, or other agreements, to carry out the intent of this Section 2.7; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Buyer shall use commercially all reasonable efforts to enter into invoice third parties for services rendered without the assistance of Seller. If necessary, Buyer shall perform under such arrangements (such contracts as subleasing, sublicensing or subcontracting) a subcontractor to provide to Seller using the parties same terms as the economic and, to between the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing Seller and the performance by Buyer and Recruiter of its obligations with respect theretoapplicable third party. Buyer shall, as agent or subcontractor shall indemnify and hold Seller harmless for Seller to pay, perform any and discharge fully all claims and causes of action arising from the liabilities and obligations performance of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, work under such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07contracts. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with create an escrow account for the retention and maintenance deposit of any proceeds of such Purchased Assetswork for the sole benefit of Buyer. Notwithstanding anything herein Buyer shall pay for the costs of such escrow. The intent of the parties is to allow Buyer to perform on the contrary, Assigned Contracts during the provisions process of obtaining assignment from third parties and the parties agree to fully cooperate with each other in this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07process.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.09, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset or Assumed Liability would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Sellers and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities transfer such Purchased Assets and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing DateBuyer; provided, however, that neither Seller Sellers nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution substitute or amendment is obtained, Seller Sellers shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset and/or Assumed Liability to which such consent, authorization, approval, waiver, release, substitution substitute or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by one-half by Sellers and one-half by Buyer and Recruiter in accordance with Section 6.126.11.
(b) To the extent that any Purchased Asset or and/or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.072.09 and from the Closing until such Purchased Asset and/or Assumed Liability is so transferred, Buyer, Recruiter Buyer and Seller Sellers shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer benefit of such Purchased Asset or and/or Assumed Liability to Buyer as of the Closing and, to the extent and for such time as Buyer receives such benefits, the performance by Buyer and Recruiter of its obligations the corresponding Assumed Liability with respect thereto. To the extent, and for such time as Buyer receives such benefits, Buyer shall, as agent or subcontractor for Seller to Sellers pay, perform and discharge fully the liabilities and obligations of Seller thereunder corresponding Assumed Liability with respect thereto from and after the Closing Date. To the extent permitted under applicable Law, Seller shallfollowing the Closing, at Buyer’s expense, Sellers (i) shall hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds proceeds, economic benefit and other monies received by Seller to the extent Sellers related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted 2.09 and (ii) authorize Buyer to set off against such amounts all direct reasonably and properly incurred costs associated act on their behalf as attorney-in-fact with the retention and maintenance of such Purchased Assetsrespect thereto. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 2.09 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.076.06.
(c) Prior to the Closing, the Lawn and Garden Entities and Buyer shall use their commercially reasonable efforts to work together (and, if necessary and desirable, to work with the third parties to all Intellectual Property Related to the Business but not used exclusively in the Business (the “Non-Exclusive Intellectual Property Assets”) and any Assigned Contract under which one of the Lawn and Garden Entities and at least one other division or Affiliate of a Seller purchases or sells goods or services on a joint basis from or to any third party and all licenses and sublicenses (the “Shared Contracts”) in an effort to (i) divide, modify or replicate (in whole or in part) the respective rights and obligations under and in respect of the Shared Contracts on terms that maintain or reduce the costs to the Business as owned by Buyer as compared to the costs to the Business as owned by Sellers (“Cost Neutral Basis”) and (ii) if practicable, novate the respective rights and obligations under and in respect of the Shared Contracts, such that, effective as of the Closing, (A) Buyer is the beneficiary of the post-Closing rights and is responsible for the post-Closing obligations related to that portion of the Shared Contract included in the Assigned Contracts (the “Business Portion”) (so that, subsequent to the Closing, neither Sellers nor any of its Affiliates shall have post-Closing rights or post-Closing obligations with respect to the Business Portion of the Shared Contract) and (B) Sellers or the applicable Affiliate of Sellers is the beneficiary of the rights and is responsible for the obligations related to each Shared Contract other than the Business Portion (the “Non-Business Portion”) (so that, subsequent to the Closing, Buyer shall have no rights or obligations with respect to each Non Business Portion of the Shared Contract). If the parties are not able to enter into an arrangement to formally divide, modify or replicate one or more of the Shared Contracts prior to the Closing as contemplated by the previous sentence, then such contract shall be deemed not to be an Assigned Contract for purposes of this Agreement and, from and after the Closing, (i) Buyer shall be entitled to the benefits of the Business Portion of any such Shared Contract accruing after the Closing Date to the extent that Sellers or the applicable Affiliate of Sellers may provide such benefits in a manner not in violation of the terms of such Shared Contract and (ii) if Sellers or an Affiliate of Sellers provides such benefits to Buyer, Buyer shall perform at its sole expense the obligations of Sellers or such Affiliate to be performed after the Closing under the Business Portion of such Shared Contract. Nothing stated in this Section 2.09(c) shall modify in any respect the conditions set forth in Section 7.02. For purposes of this Section 2.09(c) only, “commercially reasonable efforts” shall include (i) a written request and recommendation in favor of such transfer to the landlord, customer, or supplier that is the other party to such Shared Contract or Assigned Contract, (ii) the provision to Buyer of all information and records available to Sellers or Sellers’ Affiliates relating to landlords, customers, or suppliers, as the case may be, with respect to such portion of such Shared Contract or Assigned Contract, (iii) the provision to Buyer of available landlord, customer, or supplier decision maker(s) with respect to such portion of such Shared Contract or Assigned Contract, (iv) if Buyer so requests, in accordance with reasonable commercial practice, the organization at mutually agreeable times of joint visits of Buyer with such landlords, customers, or suppliers, and (v) prior to the Closing, Sellers’ and Sellers’ Affiliates’ assistance and cooperation in negotiation a separate agreement on a Cost Neutral Basis with the other party to such Shared Contract or Assigned Contract if deemed appropriate by Buyer.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.074.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset or SpinCo Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VIIArticle IX, if Buyer, at its sole option, waives the condition in Section 9.01(c), the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price Merger Consideration on account thereof. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned SpinCo Contracts or other liabilities that constitute Assumed SpinCo Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing DateEffective Time; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor, unless the agreement being assigned requires payment of a de minimis review fee or similar fee, in which case, Seller shall be responsible for such payment. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased SpinCo Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter Seller in accordance with Section 6.128.15.
(b) To the extent that any Purchased material asset of Seller utilized in connection with the Business on a non-exclusive basis, including a Contract that is not a SpinCo Contract (a "Shared Contract"), or any SpinCo Asset or Assumed and/or SpinCo Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.074.07, Buyer, Recruiter Buyer and Seller shall provide, pursuant to the Transition Services Agreement or Section 8.21, or use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide provide, to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Shared Contract or SpinCo Asset or Assumed and/or SpinCo Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto; provided that Buyer acknowledges that certain human resources, travel, corporate development, commercial banking, legal, accounting, finance, vendor management, insurance and tax-related functions provided to the Business by Seller will be taken over by Buyer at the Closing. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing DateEffective Time. To the extent permitted under applicable Law, Seller shall, at Buyer’s 's expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Shared Contract or SpinCo Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Shared Contract or SpinCo Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets4.07. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 4.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.078.
Appears in 1 contract
Samples: Purchase and Assumption Agreement and Plan of Merger (Customers Bancorp, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.071.06, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authoritygovernmental authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VIIArticle VI, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.125.07.
(b) To the extent that any Purchased Asset or Asset, Assigned Contract and/or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.07Section1.06, Buyer, Recruiter Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Asset, Assigned Contract, and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset or Assigned Contract and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset or Assigned Contract in connection with the arrangements under this Section 2.071.06. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased AssetsAssets and Assigned Contracts. Notwithstanding anything herein to (For the contraryavoidance of doubt, the provisions of this Section 2.07 shall not 1.06 will apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07in the event a governmental/municipal bid is non-assignable and the parties would cooperate such that Buyer would construct the vehicle as subcontractor for Seller.)
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Buyer and Recruiter shall use commercially reasonable efforts, and shall reasonably cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall shall, upon request of Buyer, sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12.
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.07, Buyer, Recruiter Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Samples: Asset Purchase Agreement (Recruiter.com Group, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to As between any third party or Governmental Entity on the contrary in this Agreementone hand, and subject to the provisions of this Section 2.07, to Seller on the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closingother hand, this Agreement shall not constitute a sale, an agreement to assign any Contract or any right thereunder if an attempted assignment, transfer, conveyance or deliverywithout the consent of, or an attempted saleother action by, assignmentsuch third party or Governmental Entity, transferwould constitute a violation of any applicable Law or a breach of or in any way adversely affect the rights of such third party, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VIIsuch Governmental Entity, the Closing shall occur notwithstanding Buyer or the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing DateSeller thereunder; provided, however, that neither if such consent is not obtained or such other action is not taken prior to the Closing then, as between the Seller nor Buyer shall be required and the Buyer, the Seller shall, to pay any consideration therefor. Once such consentthe extent reasonably practicable, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver (a) provide to the Buyer the relevant Purchased Asset to which such consentbenefits of the applicable Contract or other Asset, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12.
(b) To reasonably cooperate in any reasonable arrangement designed to provide such benefits to the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.07, Buyer, Recruiter and (c) enforce at the request and expense of the Buyer and for the account of the Buyer, any rights of the Seller arising from any such Contract or other Asset. The Buyer shall use commercially reasonable efforts to enter into perform the obligations under any such arrangements (such as subleasingContract, sublicensing or subcontracting) to provide to the parties the economic and, but only if and to the extent permitted under applicable Lawthat such obligations are Assumed Liabilities. For the avoidance of doubt, operational equivalent of nothing in this Section 2.11 shall obligate the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and or discharge fully any Excluded Liability. In addition, the liabilities and obligations parties will undertake commercially reasonable efforts to obtain the necessary consents of Seller thereunder from and all third-parties to the Assumed Contracts within six (6) months after the Closing Date. If any customer terminates the relevant Assumed Contract based on the failure to obtain a necessary consent, Seller shall satisfy any Liabilities arising from such Assumed Contract, including, without limitation, payment to Buyer for any inventory not purchased by a customer after termination of its Assumed Contract. If, however, any customer refuses to give its consent to the assignment of its Assumed Contract to Buyer, and such customer does not terminate the Assumed Contract within the 6-month period, then Seller may request permission from Buyer to terminate such Assumed Contract. Within ten (10) days of the date of Seller’s request to terminate, the Buyer may either reject or accept the request to terminate from Buyer. If Buyer fails to respond to Buyer’s request, then Buyer shall be deemed to have rejected the request. If Buyer accepts the request of Seller to terminate, then Seller shall terminate such Assumed Contract, and Seller shall satisfy any Liabilities arising from, or relating to, the terminated Assumed Contract including, without limitation, payment to Buyer for any inventory not purchased by a customer after termination of its Assumed Contract. If Buyer rejects the request of Seller to terminate, then Buyer will assume all Liabilities arising from, or relating to, the Assumed Contract. Any payments by a customer of the Acquired Business for inventory shall be retained by Buyer, unless Buyer has already made a reduction for such inventory pursuant to the Final Working Capital Adjustment, in which case, Seller shall retain such payments. To the extent permitted the failure to obtain any consent required for the assignment of any Assumed Contract causes a breach under applicable Lawsuch Assumed Contract, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, any Liability resulting from such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller breach shall be permitted to set off against an Excluded Liability (unless Buyer assumes the Liability under such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07Assumed Contract as described above).
Appears in 1 contract
Samples: Asset Purchase Agreement (Superior Uniform Group Inc)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.07II.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE 34ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12VI.11.
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.07, Buyer, Recruiter and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Samples: Asset Purchase Agreement
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.08, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or Assigned Contract that would require the a material consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party Party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the ClosingClosing despite Seller’s good faith and diligent effort to seek consents to such Contracts prior to Closing (“Non-Assignable Contract”), this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE Article VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities rights and obligations under any and all of the Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer shall solely have the benefit of and Recruiter shall be solely responsible for such liabilities rights and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer Party shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset Assigned Contract to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. From and after the Closing, Seller (on behalf of itself and its Affiliates) appoints Buyer as its attorney-in-fact to act in its name on its behalf, or in the name of the applicable Subsidiary, and on such Subsidiary’s behalf, with regard to each Non-Assignable Contract. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.126.09.
(b) Subject to the last sentence of this Section 2.08(b), to the extent that any Contract set forth in Section 2.08(b) of the Disclosure Schedules is a Non-Assignable Contract, from time to time, at Buyer’s request, Seller shall for a period commencing on the Closing Date and ending on the earlier of: (i) five (5) years following the Closing Date; (ii) the date on which such Non-Assignable Contract terminates by its terms or a new replacement Contract is obtained; and (iii) the date on which Buyer enters into an agreement with a Third Party to provide substantially the same services to Buyer as are provided to Seller under the Non-Assignable Contract (such earlier period, the “Intermediary Period”), act as an intermediary to provide Buyer the benefit of the terms of such Non-Assignable Contract (including, without limitation, purchasing on behalf of Buyer any raw materials or finished products to be supplied under such Non-Assignable Contract) with all costs and expenses incurred by Seller thereunder on behalf of Buyer being borne fully by Buyer. For clarity, Seller shall not charge Buyer for performing Seller’s obligation under this Section 2.08(b). To the extent that a Third Party consent is not obtained to any Purchased Asset Non-Assignable Contract prior to the Closing, then, during the Intermediary Period, Buyer shall use commercially reasonable efforts to negotiate in good faith directly with the Third Party to obtain a Contract in replacement of the Non-Assignable Contract.
(c) If the Contracts set forth in Section 2.08(c) of the Disclosure Schedules are assignable in part, or Assumed Liability cannot can otherwise be transferred bifurcated, in each case, without consent of the Third Party involved in such Contract, Seller shall assign to Buyer following in part, or bifurcate, the Contracts as they relate to the Product Portfolio. If the Contracts set forth in Section 2.08(c) of the Disclosure Schedules are not assignable without consent of the Third Party involved in such Contracts, Buyer and Seller shall cooperate in good faith to work with the applicable Third Party to bifurcate such non-assignable Contracts to the extent such Contracts relate to the Product Portfolio such that Buyer obtains its own Contract covering the subject matter contained therein as it relates specifically to the Product Portfolio. In the event that Buyer and Seller are unable to bifurcate the non-assignable Contracts set forth in Section 2.08(c) of the Disclosure Schedules on or before the Closing, then, during the Intermediary Period, Seller shall act as an intermediary to provide Buyer the benefit of the terms of such non-assignable Contract (including, without limitation, purchasing on behalf of Buyer any raw materials or finished products to be supplied under such non-assignable Contract) with all costs and expenses incurred by Seller thereunder on behalf of Buyer being borne fully by Buyer. For clarity, Seller shall not charge Buyer for performing Seller’s obligation under this Section 2.08(c). During the Intermediary Period, Buyer and Seller shall continue to cooperate to seek bifurcation of the non-assignable Contracts with the Third Party.
(d) If any Contract with any group purchasing organization, wholesaler, distributor, or specialty distributor is a Non-Assignable Contract (“Non-Assigned Wholesaler/Distributor Contract”), then Seller agrees that, to the extent permitted by Law and during the period that begins on the Closing pursuant Date and ends on the earliest of: (i) ninety (90) days after the Closing Date; (ii) the date on which all Non-Assigned Wholesaler/Distributor Contracts have been assigned to this Section 2.07Buyer; or (iii) the date on which Buyer has executed replacement Contracts with all group purchasing organization, wholesaler, distributor, or specialty distributor parties to all Non-Assigned Wholesaler/Distributor Contracts (the “Distribution Support Period”), Seller shall use its commercially reasonable efforts to (A) continue to administer and perform such Non-Assigned Wholesaler/Distributor Contract, and (B) permit the group purchasing organization, wholesaler, distributor, or specialty distributor party to such Non-Assigned Wholesaler/Distributor Contract to purchase Product from Seller and/or Buyer and resell such Product to eligible customers (the “Distribution Contract Support Services”).
(i) During the Distribution Support Period:
(A) All revenues received under any Non-Assigned Wholesaler/Distributor Contract shall belong to Buyer, Recruiter ;
(B) Buyer and Seller shall use commercially reasonable efforts efforts, and shall cooperate with each other, to either (1) obtain any required consent, authorization, approval, or waiver, or any release, substitution, or amendment required to assign any Non-Assigned Wholesaler/Distributor Contract to Buyer, or (2) if such assignment is not possible, enable Buyer to enter into a replacement Contract with the applicable group purchasing organization, wholesaler, distributor, or specialty distributor;
(C) Buyer and Seller shall take all appropriate and necessary actions, and sign such arrangements (such documents and authorizations as subleasing, sublicensing or subcontracting) to provide to the parties the economic andare reasonably necessary, to accomplish the extent permitted under applicable Lawactions described in this Section 2.08(d); and
(D) All chargebacks, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shallfees, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received amounts payable by Seller to the extent related to such Purchased Asset applicable group purchasing organization, wholesaler, distributor, or specialty distributor under the terms of any Non-Assigned Wholesaler/Distributor Contract incurred in connection with sales made after the arrangements under this Section 2.07. Closing are the financial responsibility of Buyer, and Buyer shall reimburse Seller shall be permitted to set off against for any such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed actually paid by Section 6.07Seller.
Appears in 1 contract
Samples: Asset Purchase Agreement (Spectrum Pharmaceuticals Inc)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, that the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.126.11.
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.07, Buyer, Recruiter and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.08, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or Assigned Contract would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VIIIII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price Transaction Consideration on account thereof. Following the Closing, Seller, Seller and Buyer and Recruiter shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required waiver in order for Seller to novate all liabilities and obligations under any and all effect an assignment of the Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration thereforContract. Once such consent, authorization, approval, waiver, release, substitution approval or amendment waiver is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset Assigned Contract to which such consent, authorization, approval, waiver, release, substitution approval or amendment waiver relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license which shall be paid by Buyer and Recruiter in accordance with Section 6.12considered the Closing Date for such Assigned Contract.
(b) To the extent that any Purchased Asset or Assumed Liability Assigned Contract cannot be transferred to Buyer at or following the Closing pursuant to in accordance with this Section 2.07Agreement, Buyer, Recruiter Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, and operational equivalent of the transfer of such Purchased Asset or Assumed Liability Assigned Contract to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Samples: Asset Purchase and Servicing Rights Agreement (Eagle Financial Services Inc)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and but subject to the provisions of this Section 2.077.8(a) and Section 7.13, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver Consent of a Person who is not a party to this Agreement Party or an Affiliate of a party to this Agreement Party (including any Governmental Authority), and such consent, authorization, approval or waiver Consent shall not have been obtained prior to the ClosingClosing Date, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the ClosingClosing Date, Seller, Sellers and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, Consent or any release, substitution or amendment required to novate all liabilities and obligations Liabilities under any and all Assigned Contracts Purchased Assets or other liabilities Liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations Liabilities from and after the Closing Date; provided, however, that neither Seller nor this Section 7.8(a) shall not be deemed to require Sellers or Buyer shall be required to pay any material consideration therefortherefor or institute any Action. Once such consent, authorization, approval, waiver, Consent or any release, substitution or amendment is obtained, the applicable Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, Consent or any release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12.
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to or assumed by Buyer following the Closing Date pursuant to this Section 2.072.1, Buyer, Recruiter Sellers and Seller Buyer shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting, or through the TSA) to provide to the parties Parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance Date or as reasonably requested by Buyer under which (i) Buyer would receive the rights and Recruiter benefits of its obligations ownership of such Purchased Assets, including the net profits from the operation or subsequent sale of such Purchased Assets, and including the right to manage and control such Purchased Assets and (ii) Sellers and their Affiliates would enforce for the benefit of Buyer against a third party associated with respect theretosuch Purchased Assets and Assumed Liabilities, claim, right or benefit. Buyer shall, as agent or subcontractor for Seller to Sellers, pay, perform and discharge fully the liabilities and obligations Liabilities of Seller Sellers thereunder from and after the Closing Date, including completing the work or providing the goods and services contemplated thereunder, and bearing all Taxes with respect thereto or arising therefrom. Buyer shall promptly reimburse the reasonable costs and expenses of Sellers and their Affiliates related to compliance with this Section 7.8(b). To the extent permitted under applicable Law, Seller Sellers shall, at Buyer’s sole expense, hold in trust for and pay to Buyer promptly (but in any event no later than ten (10) Business Days) upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller Sellers to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts 7.8(b), including all direct reasonably and properly incurred costs associated with cash received from customers of the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07EPSi Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary contained in this Agreement, and subject to the provisions of this Section 2.07, to the extent that if the sale, assignment, transfer, transfer or conveyance or delivery, or attempted sale, assignment, transfer, transfer or conveyance or delivery, to Buyer of any Purchased Asset would result Transferred Regulatory Documents or Transferred Contract (Transferred Contracts identified in Exhibit B as relating to the Business and to the business retained by Seller are referred to herein as a violation of applicable Law, “Mixed Contract”) is (i) prohibited by any Applicable Law or (ii) would require the consentany authorizations, authorizationapprovals, approval consents or waiver of waivers from a Person who is not a third party to this Agreement sell, assign, transfer or an Affiliate of a party to this Agreement (including any Governmental Authority), convey such Transferred Regulatory Documents or Transferred Contract and such consentauthorizations, authorizationapprovals, approval consents or waiver shall waivers have not have been obtained prior to the ClosingClosing Date (each, a “Non-Assignable Asset”), in either case, the Closing shall proceed, but the Closing shall not constitute the sale, assignment, transfer or conveyance of such Non-Assignable Asset, and this Agreement shall not constitute a sale, assignment, transfertransfer or conveyance of such Non-Assignable Asset unless and until such authorization, conveyance or deliveryapproval, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction consent or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereofis obtained. Following After the Closing, Seller, Buyer the Parties shall continue to use diligent efforts and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, without additional consideration, to obtain any such required consentauthorization, approval, consent or waiver as promptly as practicable. Once authorization, approval or waiverwaiver of or consent for the conveyance, assignment, transfer or delivery of any releasesuch Non-Assignable Asset not sold, substitution assigned, transferred or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after conveyed at the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, transfer or convey and deliver such Non-Assignable Asset to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for at no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12cost to Buyer.
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.07, Buyer, Recruiter and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.072.08, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset or Assigned Contract would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to transfer any such Purchased Assets and Assigned Contracts and novate all liabilities and obligations under any and all such Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor; provided further, that in the event that any required third party consent, authorization, approval or wavier for any Purchased Asset or Assigned Contract is not obtained, Seller shall cooperate with Buyer to seek to provide Buyer with the benefits of such underlying Purchased Asset or Assigned Contract at no additional cost to Buyer until the earlier of (i) the date such consent, authorization, approval, waiver, release, substitution or amendment is obtained; (ii) the term of the applicable Assigned Contract expires; or (iii) except as otherwise specified in the Transition Services Agreement, nine (9) months following the Closing, with Buyer being responsible for the performance of any of Seller’s obligations accruing thereunder from and after the Closing. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid borne equally by Seller and Buyer and Recruiter in accordance with Section 6.126.07(a).
(b) To the extent that any Purchased Asset or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.07, Buyer, Recruiter and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Seller, Seller and Buyer and Recruiter shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer and Recruiter shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be paid by Buyer and Recruiter in accordance with Section 6.12.
(b) To the extent that any Purchased Asset or and/or Assumed Liability cannot be transferred to Buyer following the Closing pursuant to this Section 2.07, Buyer, Recruiter Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer and Recruiter of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
