Common use of Non-Assignable Assets Clause in Contracts

Non-Assignable Assets. Notwithstanding anything to the contrary in this Agreement, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to OpCo of any Asset (i) would result in a violation of applicable law, (ii) cannot be effected due to any defect in the chain of title of such Asset (including the failure of Landmark to have marketable title to any Asset), or (iii) would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement, 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 10 and Article 11, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Landmark and OpCo shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver. To the extent that any Asset or Assumed Liability cannot be transferred to OpCo at the Closing or any transfer is later voided or diminished due to a cause of the type described in clauses (i), (ii) or (iii) of the first sentence of this Section 2.6, Landmark and OpCo shall use commercially reasonable efforts to enter into such arrangements to provide to the parties the economic and operational equivalent of the transfer of such Asset or Assumed Liability to OpCo as of the Closing and the performance by OpCo and Landmark of their respective obligations with respect thereto.

Non-Assignable Assets. Notwithstanding anything to the contrary in this Agreement, to To the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to OpCo Acquiror of any SUN Retail Asset (i) would result in a violation of applicable law, (ii) cannot be effected due to any defect in the chain of title of such SUN Retail Asset (including the failure of Landmark Contributor to have marketable title to any SUN Retail Asset), or (iii) would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement, 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 nothing in this Section 2.7 shall modify or effect the requirement of the satisfaction or waiver of the conditions contained in Article 10 and Article 11, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereofobligations of the Acquiror Parties to consummate the transactions contemplated by this Agreement set forth in Section 8.2. Following the Closing, Landmark Contributor and OpCo Acquiror shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver. To the extent that any SUN Retail Asset or Assumed Liability cannot be transferred to OpCo Acquiror at the Closing or any transfer is later voided or diminished due to a cause of the type described in clauses (i), (ii) or (iii) of the first sentence of this Section 2.62.7, Landmark Contributor and OpCo Acquiror shall use commercially reasonable efforts to enter into such arrangements to provide to the parties the economic and operational equivalent of the transfer of such SUN Retail Asset or Assumed Liability to OpCo Acquiror as of the Closing and the performance by OpCo Contributor and Landmark Acquiror of their respective obligations with respect thereto.

Non-Assignable Assets. Notwithstanding anything to the contrary in this Agreement, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to OpCo of any Asset (i) would result in a violation of applicable law, (ii) cannot be effected due to any defect in the chain of title of such Asset (including the failure of Landmark or Fund C or LD 8 to have marketable title to any Asset), or (iii) would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement, 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 10 and Article 11, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Landmark and OpCo shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver. To the extent that any Asset or Assumed Liability cannot be transferred to OpCo at the Closing or any transfer is later voided or diminished due to a cause of the type described in clauses (i), (ii) or (iii) of the first sentence of this Section 2.6, Landmark and OpCo shall use commercially reasonable efforts to enter into such arrangements to provide to the parties the economic and operational equivalent of the transfer of such Asset or Assumed Liability to OpCo as of the Closing and the performance by OpCo and Landmark of their respective obligations with respect thereto.this

Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.5, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to OpCo Buyer of any Purchased Asset (i) or Assumed Liability would result in a violation of applicable law, (ii) cannot be effected due to any defect in the chain of title of such Asset (including the failure of Landmark to have marketable title to any Asset)Law, or (iii) would require the consent, authorization, approval or waiver of a Person who is not a party to this AgreementAgreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall will not have been obtained prior to the ClosingClosing Date, then this Agreement shall will not be deemed to constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereofthereof (and for the sake of clarity, notwithstanding anything to the contrary in this Section 2.5, all such assets and Liabilities and obligations will be treated as Purchased Assets and Assumed Liabilities, respectively, for all other purposes of this Agreement); provided, however, that, subject to the satisfaction or waiver of the conditions contained in Article 10 and Article 11, that the Closing shall will occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereofand without giving rise to any rights of indemnification under Article 7 in favor of any of the Buyer’s Indemnified Parties in respect of any breach of this Agreement to the extent that such breach was caused only by the failure to obtain such consent, authorization, approval or waiver (and Section 7.2(e) will apply in such situation); provided that, for further clarity, any breach resulting from Seller’s failure to disclose in the Schedules the requirement to obtain any such consent, authorization, approval or waiver or the Seller’s failure to comply with its covenants in this Section 2.5 and in Sections 6.2 and 6.3 with respect to such consent, authorization, approval or waiver, shall in each case remain subject to the rights of indemnification under Article 7 in favor of any of the Buyer’s Indemnified Parties. Following the ClosingClosing Date, Landmark and OpCo shall Buyer will use commercially reasonable efforts, and shall cooperate with each other, efforts to obtain any such required consent, authorization, approval or waiver, and Buyer and Seller will cooperate with each other to obtain consents from the third parties that are described in Schedule 6.3; provided, however, that neither Seller nor Buyer will be required to pay any consideration therefor. Once such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Seller will then sell, assign, transfer, convey and deliver to Buyer the relevant Purchased Asset or Assumed Liability to which such consent, authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. Applicable Transfer Taxes in connection with such sale, assignment, transfer, conveyance or license will be paid by Buyer in accordance with Section 8.2, except to the extent applicable Transfer Taxes were already paid by the Buyer at the Closing Time. (b) To the extent that any Purchased Asset or and/or Assumed Liability has not or cannot be transferred to OpCo at Buyer on or following the Closing or any transfer is later voided or diminished due Date pursuant to a cause of the type described in clauses (i), (ii) or (iii) of the first sentence of this Section 2.62.5, Landmark Buyer and OpCo shall Seller will use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties Parties the economic and and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset or and/or Assumed Liability to OpCo as of Buyer from and after the Closing Date and the performance by OpCo and Landmark Buyer of their respective its obligations with respect theretothereto (and for the sake of clarity, notwithstanding anything to the contrary in this Section 2.5, all such assets and Liabilities and obligations will be treated as Purchased Assets and Assumed Liabilities, respectively, for all other purposes of this Agreement). Subject to applicable Law, Buyer will, as agent or subcontractor for Seller pay, perform and discharge fully the Liabilities and obligations of Seller thereunder from and after the Closing Date (and for the sake of clarity, notwithstanding anything to the contrary in this Section 2.5, all such assets and Liabilities and obligations will be treated as Purchased Assets and Assumed Liabilities, respectively, for all other purposes of this Agreement). To the extent permitted under applicable Law, Seller will, 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 2.5. Seller will be permitted to set off against such amounts all direct costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything in this Agreement to the contrary, the provisions of this Section 2.5 will not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval will be governed by Section 6.1(a)-(b).

Non-Assignable Assets. Notwithstanding anything to the contrary in this Agreement, to (a) To the extent that any Purchased Asset is not capable of being assigned under Section 365 of the saleBankruptcy Code (or, assignmentif inapplicable, transferpursuant to other applicable Laws or the terms of such Purchased Contract) to the Buyer at the Closing without the consent of the counterparty or any third party (including a Governmental Body), conveyance or deliveryand such consent cannot be obtained (collectively, or attempted salethe “Non-Assignable Assets”), assignment, transfer, conveyance or delivery, the Seller will use its reasonable commercial efforts to OpCo of any Asset (i) would result cooperate with the Buyer in a violation of applicable lawconnection with any commercially reasonable arrangement to provide the Buyer the same interest, (ii) cannot be effected due benefits and rights under or related to any defect in such Non-Assignable Assets as the chain of title of such Asset (including the failure of Landmark to have marketable title to any Asset), or (iii) would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement, and such consent, authorization, approval or waiver shall not have been obtained applicable Seller had immediately prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance including entering into one 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 10 and Article 11, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Landmark and OpCo shall use more mutually agreed commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver. To the extent that any Asset or Assumed Liability cannot be transferred to OpCo at the Closing or any transfer is later voided or diminished due to a cause of the type described in clauses (i)subcontract agreements, (ii) facilitate the Buyer’s negotiation with the other party to, or a third party for whom consent is required from, each Non-Assignable Asset, and (iii) enforce for the benefit of the first sentence Buyer any and all rights of the applicable Seller arising under or in connection with such Non-Assignable Asset against the other parties thereto and/or any other Person (including the right to elect to terminate in accordance with the terms thereof on the advice of the Buyer). Any Non-Assignable Asset shall, when assigned, constitute a Purchased Asset hereunder for all purposes from and after such date. (b) For the purposes of this Agreement (including Section 2.68.11(a)) and all representations and warranties of the Seller contained herein), Landmark the Seller shall be deemed to have obtained all required consents in respect of the assignment of any Purchased Asset if, and OpCo shall use commercially reasonable efforts to enter into such arrangements to provide to the parties extent that, pursuant to the economic Sale Order, the Seller is authorized to assume and operational equivalent assign to the Buyer such Purchased Asset pursuant to Section 365 of the transfer of such Asset or Assumed Liability to OpCo Bankruptcy Code and any applicable Cure Amount has been satisfied as of the Closing and the performance by OpCo and Landmark of their respective obligations with respect theretoprovided in Section 2.5.

Non-Assignable Assets. Notwithstanding anything to the contrary in this Agreement, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to OpCo of any Asset (i) would result in a violation of applicable law, (ii) cannot be effected due to any defect in the chain of title of such Asset (including the failure of Landmark or Fund G or LD 12 to have marketable title to any Asset), or (iii) would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement, 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 10 and Article 11, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Landmark and OpCo shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver. To Subject to Section 13.4, to the extent that any Asset or Assumed Liability cannot be transferred to OpCo at the Closing or any transfer is later voided or diminished due to a cause of the type described in clauses (i), (ii) or (iii) of the first sentence of this Section 2.62.5, Landmark and OpCo shall use commercially reasonable efforts to enter into such arrangements to provide to the parties the economic and operational equivalent of the transfer of such Asset or Assumed Liability to OpCo as of the Closing and the performance by OpCo and Landmark of their respective obligations with respect thereto.

Non-Assignable Assets. Notwithstanding anything to the contrary in this Agreement, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to OpCo of any Asset (i) would result in a violation of applicable law, (ii) cannot be effected due to any defect in the chain of title of such Asset (including the failure of Landmark Sellers to have marketable title to any Asset), or (iii) would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement, 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 10 and Article 11, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Landmark LD 13 and OpCo shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver. To Subject to Section 13.4, to the extent that any Asset or Assumed Liability cannot be transferred to OpCo at the Closing or any transfer is later voided or diminished due to a cause of the type described in clauses (i), (ii) or (iii) of the first sentence of this Section 2.62.5, Landmark LD 13 and OpCo shall use commercially reasonable efforts to enter into such arrangements to provide to the parties the economic and operational equivalent of the transfer of such Asset or Assumed Liability to OpCo as of the Closing and the performance by OpCo and Landmark LD 13 of their respective obligations with respect thereto.

Non-Assignable Assets. Notwithstanding anything to the contrary in this Agreement, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to OpCo of any Asset (i) would result in a violation of applicable law, (ii) cannot be effected due to any defect in the chain of title of such Asset (including the failure of Landmark or Fund F or LD 10 to have marketable title to any Asset), or (iii) would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement, 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 10 and Article 11, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Landmark and OpCo shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver. To the extent that any Asset or Assumed Liability cannot be transferred to OpCo at the Closing or any transfer is later voided or diminished due to a cause of the type described in clauses (i), (ii) or (iii) of the first sentence of this Section 2.6, Landmark and OpCo shall use commercially reasonable efforts to enter into such arrangements to provide to the parties the economic and operational equivalent of the transfer of such Asset or Assumed Liability to OpCo as of the Closing and the performance by OpCo and Landmark of their respective obligations with respect thereto.this

Non-Assignable Assets. (a) Notwithstanding anything any other provision of this Agreement to the contrary in this Agreement, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to OpCo of any Asset (i) would result in a violation of applicable law, (ii) cannot be effected due to any defect in the chain of title of such Asset (including the failure of Landmark to have marketable title to any Asset), or (iii) would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement, and such consent, authorization, approval or waiver shall not have been obtained prior to the Closingcontrary, this Agreement shall not constitute a an agreement to sell, transfer, assign, convey or deliver to any Buyer, any First Closing Transferred Asset, or any claim, right, benefit or obligation arising thereunder or resulting therefrom, or the assumption by any Buyer of any First Closing Assumed Liability, if such attempted sale, transfer, assignment, transferconveyance, conveyance delivery or deliveryassumption thereof, or an attempted saleagreement to do any of the foregoing, assignmentwithout the consent of a third party (including any Governmental Entity) (any such consent, transfera “Transfer Consent”), conveyance would constitute a breach or deliveryother contravention thereof or a violation of Law or would in any way materially and adversely affect the rights of the relevant Buyer (as assignee or transferee of the applicable Seller, thereof; providedor otherwise) thereto or thereunder. If any such Transfer Consent is required, howeverthe provisions of Section 5.12 shall apply. (b) For the avoidance of doubt, thatneither the failure to transfer any Transferred Asset or First Closing Assumed Liability in the circumstances set out in Section 2.12(a) nor any claim, subject right, or benefit arising thereunder or resulting therefrom to the satisfaction or waiver of the conditions contained relevant Buyer, shall result in Article 10 and Article 11, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following Price; provided that this is without prejudice to the Closing, Landmark and OpCo shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver. To the extent that any Asset or Assumed Liability cannot be transferred to OpCo at the Closing or any transfer is later voided or diminished due to a cause rights of the type described in clauses Buyer Parent and its Affiliates under this Agreement (iincluding pursuant to Section 10.2), (ii) or (iii) of the first sentence of this Section 2.6, Landmark and OpCo shall use commercially reasonable efforts to enter into such arrangements to provide to the parties the economic and operational equivalent of the transfer of such Asset or Assumed Liability to OpCo as of the Closing and the performance by OpCo and Landmark of their respective obligations with respect thereto.

Non-Assignable Assets. Notwithstanding anything to the contrary (a) Nothing in this Agreement, Agreement nor the consummation of the Transactions contemplated hereby shall be construed as an attempt or agreement to the extent that the sale, assignmentsell, transfer, conveyance assign, convey or deliverydeliver any Acquired Asset to Buyer or its designees (provided, that this Section 2.5(a) shall not affect whether any asset, property or attempted sale, assignment, transfer, conveyance or delivery, right shall be deemed to OpCo of be an Acquired Asset for any Asset (i) would result in a violation of applicable law, (ii) cannot be effected due to any defect in the chain of title of such Asset (including the failure of Landmark to have marketable title to any Assetother purpose under this Agreement), or for Buyer or its designees to assume any Assumed Liability, in each case which is not transferable or non-assignable, as applicable, without the consent or waiver of a third party (iiiincluding any Governmental Authority) would require or is cancellable by a third party in the event of such a transfer or assignment without the consent or waiver of such third party (including any Governmental Authority), in each case unless and until such consent or waiver shall have been obtained (collectively, “Non-Assignable Assets”). (b) To the extent permitted by applicable Law, until the earlier of (y) any required consent, authorization, approval or waiver of a Person who is not a party to this Agreementobtained, and such consent(z) the first anniversary of the Closing Date: (i) the Non-Assignable Assets subject thereto and affected thereby shall be held, authorization, approval or waiver shall not have been obtained prior to as of and from 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 by Seller in trust for the satisfaction or waiver benefit of the conditions contained in Article 10 and Article 11, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Landmark and OpCo shall use commercially reasonable effortsBuyer, and all benefits and obligations existing thereunder shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver. To the extent that any Asset or Assumed Liability cannot be transferred to OpCo at the Closing or any transfer is later voided or diminished due to a cause of the type described in clauses (ifor Buyer’s account(s), (ii) or Seller shall (iiiand shall cause its Affiliates to) of the first sentence of this Section 2.6, Landmark and OpCo shall use commercially reasonable efforts to enter into maintain good relations with any obligee or other counterparty in connection with such arrangements to provide Non-Assignable Asset, (iii) Buyer shall pay, perform or otherwise discharge (in accordance with the respective terms and subject to the parties respective conditions thereof, and in the economic and operational equivalent name of Seller or its applicable Affiliate) all of the transfer covenants and obligations of such Asset Seller or Assumed Liability to OpCo as of its applicable Affiliate incurred after the Closing and the performance by OpCo and Landmark of their respective obligations with respect thereto.to such Non-Assignable Asset,

Non-Assignable Assets. Notwithstanding anything to the contrary in this Agreement, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to OpCo of any Asset (i) would result in a violation of applicable law, (ii) cannot be effected due to any defect in the chain of title of such Asset (including the failure of Landmark Sellers to have marketable title to any Asset), or (iii) would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement, 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 10 and Article 11, the Closing shall occur notwithstanding the foregoing without any adjustment to the Purchase Price on account thereof. Following the Closing, Landmark LD 13 and OpCo shall use commercially reasonable efforts, and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver. To the extent that any Asset or Assumed Liability cannot be transferred to OpCo at the Closing or any transfer is later voided or diminished due to a cause of the type described in clauses (i), (ii) or (iii) of the first sentence of this Section 2.6, Landmark LD 13 and OpCo shall use commercially reasonable efforts to enter into such arrangements to provide to the parties the economic and operational equivalent of the transfer of such Asset or Assumed Liability to OpCo as of the Closing and the performance by OpCo and Landmark LD 13 of their respective obligations with respect thereto.