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Common use of Non-Assignable Contracts Clause in Contracts

Non-Assignable Contracts. In the case of any contract or agreement to which a Seller is a party and that by its terms or by virtue of its subject matter is not assignable without the consent of a third party (collectively, the "Non-Assignable Contracts"), such Seller will use its reasonable best efforts to obtain, prior to the Closing, any written consents necessary to convey to Buyer the benefit thereof. Notwithstanding any other provisions of this Agreement, in the event that any third party to a Non-Assignable Contract has not consented to an assignment thereof to Buyer for any reason, then Buyer shall have absolutely no liability or obligation to Sellers, such third party or any other party with respect to such Non-Assignable Contract and such Non-Assignable Contract shall be deemed not to be an Asset or an Assigned Contract pursuant to the terms of this Agreement; and, if any Non-Assignable Contract is not assigned by Buyer for any reason, and Buyer considers in its sole judgment that such Non-Assignable Contract is material to the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with the other party in any reasonable arrangement necessary or desirable to provide Buyer the benefits of such Non-Assignable Contract.

Appears in 1 contract

Samples: Asset Purchase Agreement (Diversified Corporate Resources Inc)

Non-Assignable Contracts. In (a) To the case of extent that any contract Seller Contract or agreement to which a any Seller is a party and that by its terms or by virtue of its subject matter Consent is not assignable capable of being assigned under Section 365 of the U.S. Bankruptcy Code (or, if inapplicable, pursuant to other applicable Laws or the terms of such Contract or Consent) to the Purchaser or a Designated Purchaser at the Closing without the consent Consent of the issuer thereof or the other party thereto or any Third Party (including a third party Government Entity) (collectively, the "Non-Assignable Contracts"), this Agreement will not constitute an assignment thereof, or an attempted assignment, unless and until any such Seller Consent is obtained, including any Consents obtained following Closing; provided, however, that the Sellers will use its their reasonable best efforts to obtaincooperate with the Purchaser in any reasonable arrangement to provide the Purchaser the same interest, benefits and rights under any such Non-Assignable Contracts as the applicable Seller had immediately prior to the Closing, any written consents necessary to convey to Buyer the benefit thereof. Notwithstanding any other provisions of this Agreementincluding, in the event that any third party case of Sellers Contracts involving the sale or provision of Products or Services by a Seller to a Non-Assignable Contract has not consented customer, using their reasonable best efforts to an assignment thereof to Buyer for any reason, then Buyer shall have absolutely no liability enter into one or obligation to Sellersmore mutually agreed reasonable Subcontract Agreements. As between the Sellers and the Purchaser (or the relevant Designated Purchaser), such third party or any other party with respect to such Non-Non- Assignable Contract and such Non-Assignable Contract Contracts shall be deemed not to be an Asset assigned and the Purchaser (or an Assigned Contract pursuant the relevant Designated Purchaser) shall perform all obligations and covenants thereunder. Notwithstanding the foregoing sentences, (w) nothing in this Section 5.13 shall require any Seller to the terms of this Agreement; andrenew, if modify or amend any Non-Assignable Contract is not assigned by Buyer for once it has expired, (x) any reasonefforts required of the Sellers pursuant to this paragraph shall be strictly on an interim basis and in no event required after ninety (90) days from the Closing Date, and Buyer considers in its sole judgment that such Non-Assignable Contract is material to (y) the business to be conducted by Buyer Sellers shall have the right, any time after the ninety- (90-) day anniversary of the Closing Date (as defined in Section 3.1) thenDate, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and exercise any right to terminate any Non-Assignable Contract has not been assigned Contract. The Purchaser or the Designated Purchaser, as applicable, shall reimburse the relevant Seller and indemnify and hold each Seller harmless from and against all Liabilities, incurred or asserted, as a result of any actions taken pursuant to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with the other party in any reasonable arrangement necessary or desirable to provide Buyer the benefits of such Non-Assignable Contractthis Section 5.

Appears in 1 contract

Samples: Asset Sale Agreement

Non-Assignable Contracts. In Anything in this Agreement to the case of any contract or contrary notwithstanding, this Agreement will not constitute an agreement to which a Seller is a party and that by its terms assign any Contract or by virtue of its subject matter is not assignable Permit or any claim or right or any benefit arising thereunder or resulting therefrom if any attempted assignment thereof, without the consent of the applicable counterparty thereto or a third party Governmental Authority, would constitute a default thereof or adversely affect the rights of any Seller or the Stockholder thereunder (collectively, the "Non-Assignable Contracts"). In the event such consent is not obtained or if an attempted assignment of the Non-Assignable Contracts would be ineffective or adversely affect the rights of any Seller or the Stockholder thereunder, such Seller will use its reasonable best efforts to obtain, prior to (i) for ninety (90) days after the Closing, Sellers and the Stockholder shall use commercially reasonable efforts to cooperate with Buyer to obtain any written consents necessary consent or authorization which may be required to convey transfer or assign the Non- Assignable Contracts to Buyer or to remove or eliminate any impediment preventing the transfer or assignment of the Non- Assignable Contracts to Buyer, (ii) Sellers and the Stockholder shall use commercially reasonable efforts to cooperate with Buyer in any arrangement designed to provide to Buyer the benefit thereof. Notwithstanding any other provisions of this Agreement, in the event that any third party to a Non-Assignable Contract has Contracts, (iii) Sellers shall not consented transfer or assign the Non-Assignable Contracts to an assignment thereof to any Person other than Buyer or Buyer’s assigns, and (iv) Buyer will be responsible for any reason, then Buyer shall have absolutely no liability or obligation to Sellers, such third party or any other party with respect all obligations relating to such Non-Assignable Contract and such Non-Assignable Contract shall be deemed not Contracts arising or occurring on or after the Closing Date as if they had been transferred or assigned to be an Asset or an Assigned Contract pursuant to Buyer in accordance with the terms of this Agreement; and. Upon the request of Buyer, if Sellers shall use commercially reasonable efforts to enforce, for the account, at the expense and on behalf of Buyer, any rights of Sellers arising under or in connection with any Non-Assignable Contract is not assigned by Buyer for Contracts. Nothing contained in this Section 3.4 shall require Sellers or the Stockholder nor any reason, and Buyer considers in its sole judgment that such Non-Assignable Contract is material of their respective Affiliates to the business pay any money or other consideration or grant forbearances to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with the other third party in connection with any reasonable arrangement necessary Assumed Contracts or desirable to provide Buyer the benefits of such Non-Assignable ContractPermits.

Appears in 1 contract

Samples: Asset Purchase Agreement (Spectrum Control Inc)

Non-Assignable Contracts. In Anything in this Agreement to the case of any contract or contrary notwithstanding, this Agreement shall not constitute an agreement to which assign any Assigned Contract if an attempted assignment thereof, without consent of a Seller is Third Party thereto that has not been received, would constitute a party breach or other contravention thereof or in any way adversely affect the rights of Deverra or Coeptis thereunder (each, a “Non-Assignable Contract”). Xxxxxxx shall, at Xxxxxxx’s sole cost and that by its terms or by virtue of its subject matter is not assignable without expense, obtain the consent of a third party (collectively, the "Non-Assignable Contracts"), such Seller will use its reasonable best efforts other parties to obtain, prior to the Closing, any written consents necessary to convey to Buyer the benefit thereof. Notwithstanding any other provisions of this Agreement, in the event that any third party to a Non-Assignable Contract has not consented to an assignment thereof to Buyer for any reason, then Buyer shall have absolutely no liability or obligation to Sellers, such third party or any other party with respect to such Non-Assignable Contract for the assignment thereof to Coeptis. Unless and until such consent is obtained, or if an attempted assignment thereof would be ineffective or would materially adversely affect the rights of Deverra thereunder so that Coeptis would not in fact receive all rights under such Non-Assignable Contract, then, notwithstanding anything to the contrary in this Agreement, (a) this Agreement and the related instruments of transfer shall not constitute an assignment or transfer of the Non-Assignable Contract, and (i) Deverra shall use its Commercially Reasonable Efforts to obtain such consent as soon as possible after the Closing Date and (ii) Coeptis shall cooperate, to the extent commercially reasonable, with Deverra in its efforts to obtain such consent; and (b) at Coeptis’ election prior to Closing, (i) the Non-Assignable Contract shall not constitute a Purchased Asset and Coeptis shall have no obligation with respect to any such Non-Assignable Contract or any liability with respect thereto or (ii) Deverra shall be deemed not use its Commercially Reasonable Efforts to be an Asset or an Assigned Contract pursuant to obtain for Coeptis substantially all of the terms of this Agreement; and, if any Non-Assignable Contract is not assigned by Buyer for any reason, and Buyer considers in its sole judgment that such Non-Assignable Contract is material to the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with the other party in any reasonable arrangement necessary or desirable to provide Buyer the benefits practical benefit of such Non-Assignable Contract, including by (i) entering into appropriate and reasonable alternative arrangements on terms mutually and reasonably agreeable to Xxxxxxx and Coeptis and (ii) subject to the consent and control of Coeptis, enforcement of any and all rights of Deverra against the Third Party thereto arising out of the breach or cancellation thereof by such Third Party or otherwise. Nothing contained in this Section 3.2.3 shall be deemed to limit or modify the representations and warranties of Deverra contained in Section 4 of this Agreement or limit Coeptis’ rights to make claims for breaches of or inaccuracies in such representations or warranties pursuant to Section 6 of this Agreement.

Appears in 1 contract

Samples: Asset Purchase Agreement (Coeptis Therapeutics Holdings, Inc.)

Non-Assignable Contracts. In (i) Notwithstanding anything in this Agreement to the case contrary, this Agreement shall not constitute an agreement to assign or otherwise transfer any Contract (including any portion of any contract Mixed-Use Contract pursuant to Section 10(a)) or agreement to which a Seller is a party and that by its terms Lease or by virtue of its subject matter is not assignable any claim, right or benefit arising thereunder or resulting therefrom, if an attempted transfer or assignment thereof, directly or indirectly, without the consent consent, waiver or approval of a any third party thereto, would constitute a breach or other contravention thereof, be ineffective with respect to either party thereto (collectivelyincluding by the exercise of any termination right thereunder) or violate any applicable Law or any such Contract or Lease referred to in this Section 10(b)(i), the "or otherwise are subject to a counterparty termination right as a result of such assignment or transfer (each, a “Non-Assignable Contracts"Contract”), in each such Seller will use its reasonable best efforts to obtaincase, prior to the Closingextent the applicable consent, waiver or approval is not obtained. (ii) With respect to any written consents necessary to convey to Buyer the benefit thereof. Notwithstanding any other provisions of this Agreement, in the event that any third party to a Non-Assignable Contract has not consented Contract, and any claim, right or benefit arising thereunder or resulting therefrom, Seller and OpCo Purchaser or PropCo Purchaser, as applicable, will use their commercially reasonable efforts to an assignment thereof to Buyer for any reasonobtain as expeditiously as possible after the date hereof the written consent, then Buyer shall have absolutely no liability waiver or obligation to Sellers, such third approval of the other party or any other party with respect parties to such Non-Assignable Contract (A) for the assignment or, if required, novation thereof to OpCo Purchaser, the applicable Acquired Company or PropCo Purchaser (or PropCo Purchaser’s designee), as applicable, or (B) otherwise to the extent required to effect the transfer or, alternatively, written confirmation from such parties mutually satisfactory in form and substance to Seller and OpCo Purchaser or PropCo Purchaser, as applicable, that such consent, waiver or approval is not required. In furtherance of the foregoing, as soon as reasonably practicable (but in any event no later than sixty (60) days) following the date hereof, Seller or an Affiliate thereof shall deliver to the other party or parties to any such Non-Assignable Contract documentation seeking the written consent, waiver, assignment, novation or approval of such other party or parties thereto to, or waiver of such party or parties in respect of, the transfer and assignment or novation of all of (or the applicable portion of) Seller’s or its Affiliate’s claims, rights, benefits and Liabilities thereunder to OpCo Purchaser, the applicable Acquired Company or PropCo Purchaser (or PropCo Purchaser’s designee), as applicable. In no event, however, shall Seller, the Purchasers or their respective Affiliates be obligated to pay any money to any Person or to offer or grant other financial or other accommodations to any Person in connection with obtaining any consent, waiver, confirmation, assignment, novation or approval with respect to any Non-Assignable Contract; provided, however, that Seller shall be deemed not liable for any fees and expenses that are payable with respect to be an Asset or an Assigned Contract pursuant to the terms of this Agreement; and, if any Non-Assignable Contract is not assigned by Buyer for as a result of the termination of such Contract in connection with the consummation of the transactions contemplated in this Agreement, the Real Estate Purchase Agreement or the Ancillary Agreements (and all of such fees and expenses shall constitute OpCo Excluded Liabilities). The failure to obtain any reasonconsent, and Buyer considers in its sole judgment that such Non-Assignable Contract is material waiver, confirmation, assignment, novation or approval with respect to the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been to be assigned to Buyer OpCo Purchaser (but, for the avoidance of doubt, not including any reason then either Contract to be assigned to PropCo Purchaser), shall not (ai) Buyer and Sellers shall negotiate constitute a failure to satisfy any condition set forth in good faith Section 12 or (ii) relieve OpCo Purchaser from its obligation to adjust consummate the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with transactions contemplated by this Agreement or any of the other party in any reasonable arrangement necessary or desirable to provide Buyer the benefits of such Non-Assignable ContractAncillary Agreements.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Las Vegas Sands Corp)

Non-Assignable Contracts. In The Seller shall, during the case remaining term of any contract or agreement to which a Seller is a party and that by its terms or by virtue of its subject matter is not assignable without the consent of a third party (collectively, the "Non-Assignable Contracts"), such Seller will use its reasonable best efforts to obtain, prior to the Closing, any written consents necessary to convey to Buyer the benefit thereof. Notwithstanding any other provisions of this Agreement, in the event that any third party to a each Non-Assignable Contract has (i.e., Assigned Contracts that require third-party consents for assignment that have not consented been obtained by the Seller prior to an assignment thereof or as of the Closing, and as are listed in Schedule 5.01), use commercially reasonable efforts to Buyer for any reason(a) obtain the consent of the third parties required thereunder, then Buyer shall have absolutely no liability or obligation to Sellers, such third party or any other party with respect to (b) make the benefit of such Non-Assignable Contract available to the Buyer so long as the Buyer fully cooperates with the Seller and promptly reimburses the Seller for all payments made by the Seller (with the prior written approval of the Buyer) in connection therewith and (c) enforce, at the request of the Buyer and at the sole expense and for the account of the Buyer, any right of the Seller arising from such Non-Assignable Contract shall be deemed not against the other party or parties thereto (including the right to be an Asset elect or an Assigned Contract pursuant to the terms of this Agreement; and, if terminate any Non-Assignable Contract is not assigned by Buyer for any reason, and Buyer considers in its sole judgment that such Non-Assignable Contract is in accordance with the terms thereof). The Seller shall not take any action or suffer any omission that could limit, restrict or terminate in any material respect the benefits to the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with the other party in any reasonable arrangement necessary or desirable to provide Buyer the benefits of such Non-Assignable ContractContract unless, in good faith and after consultation with and prior written notice to the Buyer, the Seller is (a) ordered to do so by a Governmental Authority or body of competent jurisdiction or (b) otherwise required to do so by Law; provided, however, that if any such order is appealable, the Seller shall, at the Buyer’s sole cost and expense, take such reasonable actions as are requested by the Buyer to file and pursue such appeal and to obtain a stay of such order. Nothing in this Agreement or the Assignment and Assumption Agreement shall constitute a sale, assignment, transfer or conveyance to, or assumption by, the Buyer of the Non-Assignable Contracts. With respect to any such Non-Assignable Contract as to which the necessary approval or consent for the assignment or transfer to the Buyer is obtained following the Closing, the Seller shall transfer such Non-Assignable Contract to the Buyer by execution and delivery of an instrument of conveyance reasonably satisfactory to the Buyer within five (5) Business Days following receipt of such approval or consent. Following the Closing, Buyer shall directly pay, or at the option of Seller, reimburse Seller, in advance, for all payments made by Seller in connection with any Non-Assignable Contracts.

Appears in 1 contract

Samples: Asset Purchase Agreement (Janover Inc.)

Non-Assignable Contracts. In If any rights, benefits or remedies (in this section 2.3 collectively called the case "Rights") under any of any contract or agreement to which a Seller is a party the Contracts and that by its terms or by virtue of its subject matter is Commitments listed in Schedule 2.3 - Specified Contracts and Commitments are not assignable by the Vendor to the Purchaser without the consent of a third the other party thereto (collectivelyin this section 2.3 called the "Third Party") and such consent is not obtained, then, unless the Purchaser exercises its rights under subsection 9.1(c) hereof, or unless the Vendor exercises its rights under subsection 9.2(d) hereof, the "Non-Assignable Contracts")following covenants and agreements shall apply in respect of such Contracts and Commitments until the end of the period commencing as at the Time of Closing and ending on the earlier of the expiry or other termination of each such Contract and Commitment or December 31, 1997 (unless the parties mutually agree otherwise in respect of any such Seller Contract and Commitment): (a) the Vendor will use its reasonable best efforts to obtain, prior to hold the Closing, any written consents necessary to convey to Buyer Rights for the benefit thereof. Notwithstanding any other provisions of this Agreementthe Purchaser; (b) the Vendor will, at the request and expense and under the direction of the Purchaser, in the event that any third party to a Non-Assignable Contract has not consented to an assignment thereof to Buyer for any reasonname of the Vendor or otherwise as the Purchaser shall specify, then Buyer shall have absolutely no liability or obligation to Sellerstake all such actions and do all such things as shall, such third party or any other party with respect to such Non-Assignable Contract and such Non-Assignable Contract shall in the opinion of the Purchaser, be deemed not to be an Asset or an Assigned Contract pursuant to the terms of this Agreement; and, if any Non-Assignable Contract is not assigned by Buyer for any reason, and Buyer considers in its sole judgment that such Non-Assignable Contract is material to the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with the other party in any reasonable arrangement necessary or desirable in order that the obligations of the Vendor under such assumed Contracts and Commitments may be performed in a manner such that the value of the Rights shall be preserved and shall enure to provide Buyer the benefits benefit of the Purchaser and such that all moneys receivable under the assumed Contracts and Commitments may be received by the Purchaser; (c) the Vendor will promptly pay over to the Purchaser all such moneys collected by the Vendor in respect of such Non-Assignable Contractassumed Contracts and Commitments; (d) to the extent permitted by the Third Party and provided, in the Purchaser's opinion, it would not be prejudicial to the Purchaser's rights to do so, the Purchaser will perform the obligations under such assumed Contracts and Commitments on behalf of the Vendor, and will indemnify the Vendor against all liabilities, costs and expenses (including reasonable costs of the defence thereof) incurred by the Vendor in performing such obligations; and (e) the Purchaser will continue to use all reasonable commercial efforts following the Time of Closing to obtain the consent of the Third Party to the assignment to the Purchaser of each such Contract and Commitment and, upon each such consent to assignment having been obtained, such Contract and Commitment shall be automatically assigned to the Purchaser.

Appears in 1 contract

Samples: Asset Purchase Agreement (Auto Graphics Inc)

Non-Assignable Contracts. In To the case of extent that any contract or agreement to which a Seller is a party and that by its terms or by virtue of its subject matter Customer Contract is not assignable or transferable without the consent or waiver of a the other party thereto or any third party (collectivelyincluding, the but not limited to, any Governmental or Regulatory Authority) (a "Non-Assignable Contractsassignable Contract"), or if such assignment or transfer or attempted assignment or transfer would constitute a breach thereof or a violation of any Law or Order, this Agreement shall not constitute an assignment or transfer, or an attempted assignment or transfer thereof until such consent or waiver has been obtained, and the following provisions shall be applicable: 1.2.1. Seller will shall use its best efforts, and Purchaser shall reasonably cooperate therewith, to obtain the consents and waivers referred to in Section 1.2. To the extent that any consent or waiver referred to in Section 1.2 is not obtained by Seller, Seller shall (A) provide to Purchaser at Seller's expense the benefits of any such Non-assignable Contract, (B) cooperate in any reasonable best efforts and lawful arrangement requested by Purchaser designed to obtainprovide such benefits to Purchaser; and (C) at the request of Purchaser, prior enforce for the account of Purchaser at Seller's expense any right of Seller arising from any such Non-assignable Contract against such other party or parties thereto (including the right to elect to terminate in accordance with the terms thereof on the advice of Purchaser). 1.2.2. To the extent that Purchaser is provided the benefits pursuant to this Section 1.2 of any such Non-assignable Contract, Purchaser shall perform for the benefit of the other party or parties thereto, the obligations of Seller thereunder or in connection therewith, but only to the Closingextent that (i) such performance would not result in any default thereunder or in connection therewith and (ii) such obligations would have been Assumed Obligations, any written consents necessary to convey to Buyer but for the benefit non-assignability or non-transferability thereof. 1.2.3. Notwithstanding any other The provisions of this Agreement, in the event that any third party to a Non-Assignable Contract has Section 1.2 shall not consented to an assignment thereof to Buyer for any reason, then Buyer shall have absolutely no liability or obligation to Sellers, such third party or any other party with respect to such Non-Assignable Contract and such Non-Assignable Contract shall be deemed not to be an Asset or an Assigned Contract affect Seller's indemnification obligations pursuant to the terms of this Agreement; and, if any Non-Assignable Contract is not assigned by Buyer for any reason, and Buyer considers in its sole judgment that such Non-Assignable Contract is material to the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with the other party in any reasonable arrangement necessary or desirable to provide Buyer the benefits of such Non-Assignable Contract8.

Appears in 1 contract

Samples: Asset Purchase Agreement (Mai Systems Corp)

Non-Assignable Contracts. In the case This Agreement and any document ------------------------ delivered hereunder shall not constitute an assignment or an attempted assignment by SELLER of any contract or agreement right contemplated to which a Seller is a party and that by its terms or by virtue of its subject matter be assigned to BUYER hereunder: (a) Which is not assignable by SELLER without the consent of a third party if such consent has not been obtained and such assignment or attempted assignment would constitute a breach thereof; or (collectively, b) If the "Non-Assignable Contracts"), such Seller will remedies for the enforcement or any other particular provisions thereof available to SELLER would not pass to BUYER. SELLER shall use its reasonable best all efforts to obtainobtain such consents of third parties as may be necessary for the assignment of such right by SELLER. To the extent that such right of SELLER is not assignable or where consents to the assignment thereof cannot be obtained as herein provided, prior to SELLER shall, at the Closing, any written consents necessary assign to convey to Buyer BUYER the full benefit thereof. Notwithstanding any other provisions of this Agreement, in the event that any third party to a Non-Assignable Contract has not consented to an assignment thereof to Buyer for any reason, then Buyer shall have absolutely no liability or obligation to Sellers, such third party or any other party with respect to such Non-Assignable Contract and such Non-Assignable Contract (which shall be deemed not to be an Asset or an Assigned Contract pursuant to the terms of this Agreement; Assets) and, if any Non-Assignable Contract is not assigned by Buyer for any reasonat BUYER's option, either (i) grant to BUYER an irrevocable power of attorney to perform SELLER's covenants and Buyer considers obligations under such rights in its sole judgment that such Non-Assignable Contract is material to respect of the business to be conducted by Buyer period after the Closing Date Date, and to enforce SELLER's rights thereunder in the name of SELLER but for the benefit of BUYER, or (ii) continue to perform its covenants and obligations under such rights and SELLER shall take or cause to be taken such action in its name or otherwise as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation BUYER may require so as to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith provide BUYER with the benefits thereof and to effect collection of money or other party consideration to become due and payable under such items and SELLER shall promptly pay over to BUYER money received by SELLER in any reasonable arrangement necessary or desirable to provide Buyer respect of all of the benefits of such Non-Assignable Contractforegoing items.

Appears in 1 contract

Samples: Asset Purchase Agreement (Inergy L P)

Non-Assignable Contracts. In The Seller shall, during the case remaining term of any contract or agreement each Non-Assignable Contract, use commercially reasonable efforts to which a Seller is a party and that by its terms or by virtue of its subject matter is not assignable without (a) obtain the consent of a the third party parties required thereunder, (collectively, the "Non-Assignable Contracts"), such Seller will use its reasonable best efforts to obtain, prior to the Closing, any written consents necessary to convey to Buyer b) make the benefit thereof. Notwithstanding any other provisions of this Agreement, in the event that any third party to a Non-Assignable Contract has not consented to an assignment thereof to Buyer for any reason, then Buyer shall have absolutely no liability or obligation to Sellers, such third party or any other party with respect to such Non-Assignable Contract available to the Purchaser so long as the Purchaser fully cooperates with the Seller and promptly reimburses the Seller for all payments made by the Seller (with the prior written approval of the Purchaser) in connection therewith and (c) enforce, at the request of the Purchaser and at the sole expense and for the account of the Purchaser, any right of the Seller arising from such Non-Assignable Contract shall be deemed not against the other party or parties thereto (including the right to be an Asset elect or an Assigned Contract pursuant to the terms of this Agreement; and, if terminate any Non-Assignable Contract is not assigned by Buyer for any reason, and Buyer considers in its sole judgment that such Non-Assignable Contract is in accordance with the terms thereof). The Seller shall not take any action or suffer any omission that could limit, restrict or terminate in any material respect the benefits to the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with the other party in any reasonable arrangement necessary or desirable to provide Buyer the benefits Purchaser of such Non-Assignable ContractContract unless, in good faith and after consultation with and prior written notice to the Purchaser, the Seller is (a) ordered to do so by a Governmental Body of competent jurisdiction or (b) otherwise required to do so by Law; provided, however, that if any such order is appealable, the Seller shall, at the Purchaser’s sole cost and expense, take such reasonable actions as are requested by the Purchaser to file and pursue such appeal and to obtain a stay of such order. Nothing in this Agreement or the Assumption Agreement shall constitute a sale, assignment, transfer or conveyance to, or assumption by, the Purchaser of the Non-Assignable Contracts. With respect to any such Non-Assignable Contract as to which the necessary approval or consent for the assignment or transfer to the Purchaser is obtained following the Closing, the Seller shall transfer such Non-Assignable Contract to the Purchaser by execution and delivery of an instrument of conveyance reasonably satisfactory to the Purchaser within five (5) Business Days following receipt of such approval or consent. Following the Closing, Purchaser shall directly pay, or at the option of Seller, reimburse Seller, in advance, for all payments made by Seller or Sole Stockholder in connection with any Non-Assignable Contracts.

Appears in 1 contract

Samples: Asset Purchase Agreement (Weyland Tech, Inc.)

Non-Assignable Contracts. In i. Notwithstanding anything in this Agreement to the case contrary, this Agreement shall not constitute an agreement to assign or otherwise transfer any Contract (including any portion of any contract Mixed-Use Contract pursuant to Section 10(a)) or agreement to which a Seller is a party and that by its terms Lease or by virtue of its subject matter is not assignable any claim, right or benefit arising thereunder or resulting therefrom, if an attempted transfer or assignment thereof, directly or indirectly, without the consent consent, waiver or approval of a any third party thereto, would constitute a breach or other contravention thereof, be ineffective with respect to either party thereto (collectivelyincluding by the exercise of any termination right thereunder) or violate any applicable Law or any such Contract or Lease referred to in this Section 10(b)(i), the "or otherwise are subject to a counterparty termination right as a result of such assignment or transfer (each, a “Non-Assignable Contracts"Contract”), in each such Seller will use its reasonable best efforts to obtaincase, prior to the Closingextent the applicable consent, waiver or approval is not obtained. ii. With respect to any written consents necessary to convey to Buyer the benefit thereof. Notwithstanding any other provisions of this Agreement, in the event that any third party to a Non-Assignable Contract has not consented Contract, and any claim, right or benefit arising thereunder or resulting therefrom, Seller and OpCo Purchaser or PropCo Purchaser, as applicable, will use their commercially reasonable efforts to an assignment thereof to Buyer for any reasonobtain as expeditiously as possible after the date hereof the written consent, then Buyer shall have absolutely no liability waiver or obligation to Sellers, such third approval of the other party or any other party with respect parties to such Non-Assignable Contract (A) for the assignment or, if required, novation thereof to OpCo Purchaser, the applicable Acquired Company or PropCo Purchaser (or PropCo Purchaser’s designee), as applicable, or (B) otherwise to the extent required to effect the transfer or, alternatively, written confirmation from such parties mutually satisfactory in form and substance to Seller and OpCo Purchaser or PropCo Purchaser, as applicable, that such consent, waiver or approval is not required. In furtherance of the foregoing, as soon as reasonably practicable (but in any event no later than sixty (60) days) following the date hereof, Seller or an Affiliate thereof shall deliver to the other party or parties to any such Non-Assignable Contract documentation seeking the written consent, waiver, assignment, novation or approval of such other party or parties thereto to, or waiver of such party or parties in respect of, the transfer and assignment or novation of all of (or the applicable portion of) Seller’s or its Affiliate’s claims, rights, benefits and Liabilities thereunder to OpCo Purchaser, the applicable Acquired Company or PropCo Purchaser (or PropCo Purchaser’s designee), as applicable. In no event, however, shall Seller, the Purchasers or their respective Affiliates be obligated to pay any money to any Person or to offer or grant other financial or other accommodations to any Person in connection with obtaining any consent, waiver, confirmation, assignment, novation or approval with respect to any Non-Assignable Contract; provided, however, that Seller shall be deemed not liable for any fees and expenses that are payable with respect to be an Asset or an Assigned Contract pursuant to the terms of this Agreement; and, if any Non-Assignable Contract is not assigned by Buyer for as a result of the termination of such Contract in connection with the consummation of the transactions contemplated in this Agreement, the Real Estate Purchase Agreement or the Ancillary Agreements (and all of such fees and expenses shall constitute OpCo Excluded Liabilities). The failure to obtain any reasonconsent, and Buyer considers in its sole judgment that such Non-Assignable Contract is material waiver, confirmation, assignment, novation or approval with respect to the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been to be assigned to Buyer OpCo Purchaser (but, for the avoidance of doubt, not including any reason then either Contract to be assigned to PropCo Purchaser), shall not (ai) Buyer and Sellers shall negotiate constitute a failure to satisfy any condition set forth in good faith Section 12 or (ii) relieve OpCo Purchaser from its obligation to adjust consummate the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with transactions contemplated by this Agreement or any of the other party in any reasonable arrangement necessary or desirable to provide Buyer the benefits of such Non-Assignable ContractAncillary Agreements.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Vici Properties Inc.)

Non-Assignable Contracts. In the case Neither this Agreement nor any closing document shall constitute an assignment or an attempted assignment of any contract or agreement Non-Assignable Contract (as defined below). Seller shall use commercially reasonable efforts to obtain all consents required for the assignment to Buyer of the Non-Assignable Contracts to the extent they are included in the Purchased Assets To the extent that any Assumed Agreement for which a Seller assignment to Buyer is a party and that by its terms or by virtue of its subject matter provided herein is not assignable without the consent of a third another party (collectively, the "Non-Assignable Contracts"), and such Seller will use its reasonable best efforts to obtain, consent has not been obtained prior to the Closing, any written consents necessary to convey to Buyer (i) the benefit thereof. Notwithstanding any other provisions of this Agreement, in the event that any third party to asset (and its related liabilities) will not be considered a Non-Assignable Contract has not consented to an assignment thereof to Buyer for any reason, then Buyer shall have absolutely no liability or obligation to Sellers, such third party or any other party with respect to such Non-Assignable Contract and such Non-Assignable Contract shall be deemed not to be an Purchased Asset or an Assigned Contract pursuant to Assumed Liability for the terms purposes of this AgreementAgreement unless and until such consent has been obtained; and, if any Non-Assignable Contract is not assigned by Buyer for any reason, (ii) Seller shall continue to use its commercially reasonable efforts to obtain such approval; and Buyer considers in its sole judgment that (iii) pending such Non-Assignable Contract is material to the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers approval Seller shall cooperate in good faith with the other party Buyer in any mutually agreeable, reasonable and lawful arrangement necessary or desirable designed to provide Buyer with the benefits economic and operational equivalent of the use of such asset and its related liabilities. As used herein the term “Non-Assignable Contract” means any Assumed Agreement to be assigned hereunder for which: (a) an assignment or attempted assignment of which would constitute a breach thereof without the consent of a third party and such consent has not been obtained; (b) in respect of which the remedies for the enforcement thereof available to Seller would not pass to Buyer; or (c) an assignment of which would contravene any applicable law; provided, however, that with respect to clause (a), upon execution of consent to assignment such Contract will no longer be a “Non-Assignable Contract”.

Appears in 1 contract

Samples: Asset Purchase Agreement (Banks.com, Inc.)

Non-Assignable Contracts. In (a) Notwithstanding anything herein to the case contrary, if any of any contract or agreement to which a Seller is a party and that by its terms or by virtue of its subject matter is the Business Contracts are not assignable or transferable (each, a “Non-Assignable Contract”) without the consent of of, or waiver by, a third party (collectivelyeach, an “Assignment Consent”), either as a result of the "provisions thereof or applicable Laws, and any of such Assignment Consents are not obtained by Seller on or prior to the Closing Date other than any Required Consents (unless waived by Buyer), then (i) the Closing shall proceed and Buyer shall pay the full Closing Date Purchase Price at Closing, without the assignment of such contract(s), (ii) the failure to obtain such consent(s) and the failure to assign such contract(s) shall not constitute a breach of this Agreement by Seller, (iii) Buyer and Seller shall use commercially reasonable efforts for a period of nine (9) months following the Closing Date (or, if applicable, such longer period specified in Section 2.8) to obtain such Assignment Consents as soon as reasonably practicable after the Closing Date and thereafter assign to Buyer such Non-Assignable Contracts (provided that such efforts shall not require Seller to make any payment or financial or other accommodations or grants to any third party (other than as mutually agreed in writing by the Parties)), and (iv) this Agreement and the related instruments of transfer shall not constitute an assignment or transfer of such Non-Assignable Contracts"), and Buyer shall not assume Seller’s rights or obligations under such Non-Assignable Contracts (and such Non-Assignable Contracts shall not be included in the Assets) until, with respect to each Non-Assignable Contract, such Seller will use its reasonable best efforts to obtain, prior to the Closing, any written consents necessary to convey to Buyer the benefit thereof. Notwithstanding any other provisions of this Agreement, in the event that any third party to time if and when such Assignment Consent is obtained (at which time such Business Contract shall no longer be a Non-Assignable Contract has not consented to an assignment thereof to hereunder). (b) The Parties will reasonably cooperate in any alternative lawful arrangement under which Buyer for any reasonshall, then Buyer shall effective as of the Closing, (A) have absolutely no liability or obligation to Sellers, such third party or any other party with respect to the benefit under such Non-Assignable Contract and such Non-Assignable Contract shall be deemed not to be an Asset or an Assigned Contract pursuant to the terms of this Agreement; and, Contracts as if any Non-Assignable Contract is not assigned by Buyer for any reasonthey had been assigned, and Buyer considers in its sole judgment that such Non-Assignable Contract is material to (B) bear the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with the other party in any reasonable arrangement necessary or desirable to provide Buyer the benefits Liabilities of such Non-Assignable ContractContracts as if they had been assumed by Buyer, in each case until such Assignment Consent is obtained, and the Parties shall execute and deliver such documents and other papers and take such further actions as may be reasonably required to effectuate the foregoing.

Appears in 1 contract

Samples: Asset Purchase Agreement (Molina Healthcare Inc)

Non-Assignable Contracts. (a) To the extent that any Assigned Agreement is not capable of being assigned to Purchaser at the Closing without the Consent of any other party thereto or any Person, or if such assignment or attempted assignment would constitute a breach thereof, or a violation of any applicable Law, this Agreement shall not constitute an assignment or an attempted assignment thereof, unless and until such Consent has been obtained. (b) In the case of event that any contract or agreement Consent referred to which a Seller is a party and that by its terms or by virtue of its subject matter is in Section 2.6(a) has not assignable without the consent of a third party (collectively, the "Non-Assignable Contracts"), such Seller will use its reasonable best efforts to obtain, been obtained prior to the Closing, at Seller’s sole cost and expense, Seller shall use its commercially reasonable efforts, and Purchaser and Parent shall cooperate with Seller, to obtain each and every such Consent and to resolve the impracticalities of assignment referred to in Section 2.6(a) after the Closing. (c) To the extent that the Consents referred to in Section 2.6(a) have not been obtained prior to the Closing, until the impracticalities of assignment referred to in Section 2.6(a) hereof are resolved, Seller and the applicable Retained Subsidiary shall use their commercially reasonable efforts to (i) cooperate with Purchaser in any written consents necessary reasonable and lawful arrangement designed to convey provide Purchaser the benefits of any Assigned Agreement referred to Buyer in Section 2.6(a), and (ii) enforce, for the account and benefit of Purchaser, any and all rights of Seller and the applicable Retained Subsidiary arising from the Assigned Agreements referred to in Section 2.6(a) against all other parties thereto (including the right to elect to terminate in accordance with the terms thereof on the advice of Purchaser). To the extent that Purchaser is provided the benefits pursuant to this Section 2.6(c) of any Assigned Agreement, Purchaser shall perform, on behalf of Seller and the applicable Retained Subsidiary, for the benefit thereof. Notwithstanding any of all other provisions parties thereto, the obligations of this Agreement, Seller and the applicable Retained Subsidiary thereunder or in connection therewith (and in the event that any third party to a Non-Assignable Contract has not consented to an assignment thereof to Buyer for action by Purchaser results in any reason, then Buyer shall have absolutely no liability material default thereunder or obligation to Sellers, such third party or any other party with respect to such Non-Assignable Contract and such Non-Assignable Contract shall be deemed not to be an Asset or an Assigned Contract pursuant to the terms of this Agreement; and, if any Non-Assignable Contract is not assigned by Buyer for any reasonin connection therewith, and Buyer considers any such material default results in its sole judgment that the termination of such Non-Assignable Contract is material Assigned Agreement, Purchaser shall no longer be entitled to the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with the other party in any reasonable arrangement necessary or desirable to provide Buyer receive the benefits of such Non-Assignable ContractAssigned Agreement). Any failure by Purchaser to perform the obligations of Seller or the applicable Retained Subsidiary under any such Assigned Agreement or in connection therewith shall constitute a breach by Purchaser of its covenants under this Section 2.6(c). Nothing contained in this Section 2.6 shall constitute a waiver of, or impair, Purchaser’s rights under Section 8.1 or ARTICLE IX.

Appears in 1 contract

Samples: Asset Purchase Agreement (Gentek Inc)

Non-Assignable Contracts. In the case of any contract or agreement This Agreement shall not be deemed to which a Seller is a party and that by its terms or by virtue of its subject matter is not assignable without the consent of a third party (collectively, the "Non-Assignable Contracts"), such Seller will use its reasonable best efforts constitute an undertaking to obtain, prior to the Closing, any written consents necessary to convey to Buyer the benefit thereof. Notwithstanding any other provisions of this Agreement, in the event that any third party to assign a Non-Assignable Contract if such consent or approval has not consented been given as of the Closing Date. Purchaser shall, for a period of twelve (12) months after the Closing Date or, if shorter, during the remaining term of each Non-Assignable Contract, use its Commercially Reasonable Efforts to, and Seller shall use Commercially Reasonable Efforts at Purchaser’s request to an assignment thereof cooperate with Purchaser to: (a) obtain the consent of the third parties required thereunder to Buyer assign such Non-Assignable Contract to Purchaser; (b) to the extent permitted by Law, make the benefit of such Non-Assignable Contract available to Purchaser so long as Purchaser cooperates with Seller and promptly reimburses Seller for all payments made by Seller (with the prior approval of Purchaser) in connection therewith; and (c) enforce, at the request of Purchaser, and at the sole expense and for the account of Purchaser, any reason, then Buyer right of Seller arising under such Non-Assignable Contract against the other party or parties thereto (including the right to terminate any such Non-Assignable Contract in accordance with the terms thereof). Seller shall have absolutely no liability or obligation to SellersPurchaser if Seller is unable to obtain any consent or approval. Purchaser shall pay, such third party or perform and discharge fully the liabilities and obligations of Seller under any other party with respect to such Non-Assignable Contract from and after the Closing with respect to the period that Purchaser receives the benefit of such Non-Assignable Contract. Except as set forth in Section 9.10, Seller shall not take any action or suffer any omission that limits, restricts or terminates in any material respect the benefits to Purchaser of such Non-Assignable Contract unless, in good faith and after consultation with and prior written notice to Purchaser, Seller is: (i) ordered to do so by a Governmental Entity of competent jurisdiction; or (ii) otherwise required to do so by Law; provided, however, that if any such order is appealable, Seller shall take such reasonable actions as are requested by Purchaser at the sole expense of Seller to file and pursue such appeal and to obtain a stay of such order. With respect to any such Non-Assignable Contract as to which the necessary approval or consent for the assignment or transfer to Purchaser is obtained following the Closing, Seller shall transfer such Non-Assignable Contract to Purchaser by execution and delivery of an instrument of conveyance reasonably satisfactory to Purchaser within five (5) Business Days following receipt of such approval or consent, and Purchaser shall assume and agree to pay, perform and discharge when due the liabilities and obligations under such Non-Assignable Contract in the same manner and to the same extent as described in Section 2.4(b)(i) (and such Non-Assignable Contract shall will then be deemed not to be considered an Asset or an Assigned Assumed Contract pursuant to the terms for all purposes of this Agreement; and, if any Non-Assignable Contract is not assigned by Buyer for any reason, and Buyer considers in its sole judgment that Agreement after such Non-Assignable Contract is material to the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with the other party in any reasonable arrangement necessary or desirable to provide Buyer the benefits of such Non-Assignable Contractdate).

Appears in 1 contract

Samples: Asset Purchase Agreement (C H Robinson Worldwide Inc)

Non-Assignable Contracts. In (a) To the case of extent that any contract Assigned Contract or agreement to which a any Seller is a party and that by its terms or by virtue of its subject matter Consent is not assignable capable of being assigned under Section 365 of the U.S. Bankruptcy Code (or, if inapplicable, pursuant to other applicable Laws or the terms of such Contract or Consent) to the Purchaser or a Designated Purchaser at the Closing (i) without the consent Consent of the issuer thereof or the other party thereto or any Third Party (including a third party Government Entity), and such Consent cannot be obtained pursuant to Section 2.1.7 or (ii) whether or not Consent is required, without Sellers’ and their Affiliates’ compromising any right, asset or benefit or expending any amount or incurring any Liability or providing any other consideration other than as provided in Section 2.1.7 (collectively, the "Non-Assignable Contracts"), this Agreement will not constitute an assignment thereof, or an attempted assignment, unless and until any such Seller Consent is obtained; provided, however, that the Sellers will use its their reasonable best efforts to obtain(i) cooperate with the Purchaser in connection with any commercially reasonable arrangement to provide the Purchaser the same interest, benefits and rights under any such Non-Assignable Contracts as the applicable Seller had immediately prior to the Closing, including entering into one or more mutually agreed commercially reasonable Subcontract Agreements, and (ii) facilitate Purchaser’s negotiation with the other party to each Non-Assignable Contract that is a license of Intellectual Property to provide the Purchaser the same interest, benefits and rights under any written consents necessary such Non-Assignable Contracts as the applicable Seller had immediately prior to convey the Closing (including paying Cure Costs in order to Buyer obtain such Consent). If, and only for so long as, the benefit thereofarrangements described in clause (i) of the immediately preceding sentence are made such that Purchaser has obtained the same interest, benefits and rights under any such Non-Assignable Contracts, then, as between the Sellers and the Purchaser (or the relevant Designated Purchaser), such Non-Assignable Contracts shall be deemed to be assigned and the Purchaser (or the relevant Designated Purchaser) shall perform all obligations and covenants thereunder. Notwithstanding the foregoing sentences, (w) nothing in this Section 5.13 shall require any other provisions of this AgreementSeller to renew, in modify or amend any Non-Assignable Contract once it has expired. The Parties acknowledge that the event fact that any third party to Contract constitutes a Non-Assignable Contract has by itself shall not consented (i) constitute a breach of any covenant hereunder, (ii) except as otherwise provided in Section 8.3(c), entitle Purchaser to an assignment thereof to Buyer for terminate this Agreement or (iii) result in any reason, then Buyer shall have absolutely no liability or obligation to Sellers, such third party or any other party with respect to such reduction of the Purchase Price payable hereunder. Any Non-Assignable Contract and such Non-Assignable Contract shall be deemed not to be an Asset or an Assigned Contract assigned pursuant to the terms of this Agreement; andSection 5.13 shall, if when assigned, constitute an Assigned Contract hereunder from and after such date. (b) For the purposes of this Agreement (including Section 5.13(a) and all representations and warranties of the Sellers contained herein), the relevant Sellers shall be deemed to have obtained all required Consents in respect of the assignment of any Assumed and Assigned Contract if, and to the extent that, pursuant to the U.S. Sale Order or any separate order of the U.S. Bankruptcy Court approving and authorizing the assumption and assignment of the Assumed and Assigned Contracts, the Sellers are authorized to assume and assign to the Purchaser or a Designated Purchasers such Seller Contract pursuant to Section 365 of the U.S. Bankruptcy Code and any applicable Cure Cost has been satisfied as provided in Section 2.1.7. (c) If, after the Closing, the Purchaser or the relevant Designated Purchaser receives a purchase order on account of any Non-Assignable Contract that is not assigned by Buyer for any reasona contract between a Seller and a customer of such Seller (each, a “Non-Assignable Customer Contract” and Buyer considers in its sole judgment the customer counterparty thereto a “Non-Assignable Customer Counterparty”), Purchaser or the relevant Designated Purchaser shall request that such Non-Assignable Contract is material Customer Counterparty consent in writing to the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with the other party in any reasonable arrangement necessary or desirable to provide Buyer the benefits assignment of such Non-Assignable ContractCustomer Contract to Purchaser or the relevant Designated Purchaser. For the period in which such consent is not forthcoming (the “Non-Assignable Period”), Purchaser or the relevant Designated Purchaser shall process such purchase order and Seller shall provide the Purchaser or the relevant Designated Purchaser with the interest, benefits and rights under such Non-Assignable Customer Contract in accordance with Section 5.13(a); provided, however, that Seller’s obligation to provide Purchaser or the relevant Designated Purchaser with the interest, benefits and rights under such Non-Assignable Customer Contract will terminate upon the earliest of (i) the effective date of such consent, (ii) the effective date of any direct agreement between Purchaser (or the relevant Designated Purchaser) and such Non-Assignable Customer Counterparty or (iii) in accordance with Section 5.13(a); provided further, however, that Purchaser and the relevant Designated Purchaser agree to indemnify, defend and hold Sellers and each Seller’s respective directors, officers and personnel (collectively, the “Non-Assignable Customer Contracts Indemnitees”) harmless from and against any and all losses, costs, damages, expenses and liabilities whatsoever (including reasonable legal fees) which may be suffered or incurred by any Non-Assignable Customer Contracts Indemnitee arising out of claims made by a Non-Assignable Customer Counterparty relating to Seller’s providing Purchaser and/or the relevant Designated Purchaser with the interests, benefits and rights under the relevant Non-Assignable Customer Contract during the Non-Assignable Period.

Appears in 1 contract

Samples: Asset Sale Agreement (Nortel Networks Corp)

Non-Assignable Contracts. In the case 3.8.1 This Agreement shall not constitute an assignment or an attempted assignment of any contract or agreement Contract, to which a Seller is a party and the extent that by its terms or by virtue of its subject matter is not assignable without such assignment requires the consent of a third party that has not been obtained or the assignment thereof is otherwise contrary to applicable law (collectively, the "each a “Non-Assignable Contract”). All material Non-Assignable Contracts are listed in Schedule “7.4”. The Vendor agrees to assign any Contracts to the Purchaser when such assignment is permitted and as the Purchaser may from time to time direct. The Vendor shall use commercially reasonable efforts to obtain all consents required for the assignment to the Purchaser of the Contracts"). The Vendor shall not, however, be obliged to make any payments to such third parties in addition to those required to be made thereunder in order to obtain such consents, unless the Purchaser reimburses the Vendor for such payments at the time such payments are made and the Vendor shall not be required to commence any legal proceeding to obtain such consent. 3.8.2 To the extent permitted by applicable law, if any of the Non-Assignable Contracts are not assignable by the terms thereof or where consents to the assignment thereof cannot be obtained on or before the Closing Date, such Seller will use its reasonable best efforts to obtain, prior to Non-Assignable Contracts shall be held by the Closing, any written consents necessary to convey to Buyer Vendor in trust for the benefit thereof. Notwithstanding any other provisions of this Agreement, Purchaser and the covenants and obligations thereunder shall be performed by the Purchaser in the event that any third party to name of the Vendor and all benefits and obligations existing thereunder shall be for the account of the Purchaser. If a Non-Assignable Contract has is not consented validly assigned to an assignment thereof to Buyer for any reason, then Buyer shall have absolutely no liability or obligation to Sellersthe Purchaser within six months after the Closing Date, such third party or any other party Non-Assignable Contract shall be an Excluded Asset and all obligations of the Vendor to the Purchaser with respect to such Non-Assignable Contract and such Non-Assignable Contract shall be deemed not to be an Asset or an Assigned Contract pursuant to the terms of this Agreement; and, if any Non-Assignable Contract is not assigned by Buyer for any reason, and Buyer considers in its sole judgment that such Non-Assignable Contract is material to the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with the other party in any reasonable arrangement necessary or desirable to provide Buyer the benefits of such Non-Assignable Contractterminate.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Maxim Mortgage Corp/)

Non-Assignable Contracts. In the case (a) This Agreement and any document delivered hereunder shall not constitute an assignment or an attempted assignment of any contract Contract or agreement other right contemplated to which a Seller is a party and that be acquired by its terms or by virtue of its subject matter is the Purchaser hereunder and: (i) not assignable without the consent of a third party if such consent has not been obtained and such assignment or attempted assignment would constitute a breach thereof; or (collectivelyii) in respect of which the remedies for the enforcement thereof available to the Vendor would not pass to the Purchaser. (b) Schedule 2.3(a) contains a list of those consents of third parties as may be necessary for the assignment of such Contracts or other rights necessary for the operation of the Purchased Business (the “Consents”) and the Vendor shall use commercially reasonable efforts to obtain the Consents prior to Closing. The Vendor shall as a condition of Closing obtain those Consents set out on Schedule 2.3(b) (the “Required Consents”). Subject to the Purchaser’s right to terminate this Agreement if the closing condition to obtain the Required Consents set forth in Section 7.1(c) is not satisfied, if any Consents are not obtained, to the extent any of the foregoing may not be assigned to the Purchaser by reason of the absence of any such Consent after such efforts, the "Non-Assignable Contracts"), Vendor shall not be required to assign such Seller will use its reasonable best efforts Contract or other right and the Purchaser shall not be required to obtain, assume any Obligations arising under such Contract or other right. If any Consent is not obtained prior to the Closing, the Vendor and the Purchaser shall cooperate (at their own expense) in any written consents necessary lawful and reasonable arrangement reasonably proposed by the Purchaser, under which the Purchaser shall obtain the economic Claims, rights and benefits under the asset, Claim or right with respect to convey to Buyer which the benefit thereof. Notwithstanding any other provisions of Consent has not been obtained in accordance with this Agreement; provided that such arrangement does not and will not constitute a breach by the Vendor of any of its obligations to third parties. Such reasonable arrangement may include (i) the subcontracting, in sublicensing or subleasing to the event that Purchaser of any third party and all rights of the Vendor against the other Party to a Non-Assignable Contract has not consented to an assignment thereof to Buyer for any reason, then Buyer shall have absolutely no liability or obligation to Sellers, such third party agreement arising out of a breach or any cancellation thereof by the other party with respect Party, and (ii) the enforcement by the Vendor of such rights. To the extent the Purchaser is able to receive the economic Claims, rights and benefits under such Non-Assignable Contract and such Non-Assignable Contract asset, the Purchaser shall be deemed not to be an Asset or an Assigned Contract pursuant to responsible for the terms of this Agreement; andObligations, if any Non-Assignable Contract is not assigned by Buyer for any reasonany, and Buyer considers in its sole judgment that arising under such Non-Assignable Contract is material to the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either (a) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with the other party in any reasonable arrangement necessary or desirable to provide Buyer the benefits of such Non-Assignable Contractasset.

Appears in 1 contract

Samples: Asset Purchase Agreement (Vishay Precision Group, Inc.)

Non-Assignable Contracts. In To the case extent that any Third Party Consents, other than the Material Consents, have not been obtained by Seller as of the Closing for any contract or agreement to which a reason, Seller is a party and that by its terms or by virtue shall, during the remaining term of its subject matter is not assignable without such Contract (the consent of a third party (collectively, the "Non-Assignable Contracts"), such Seller will use its reasonable best all commercially available efforts to obtain(a) obtain the consent of the applicable third party or parties thereto, prior to the Closing, any written consents necessary to convey to Buyer (b) make the benefit thereof. Notwithstanding any other provisions of this Agreement, in the event that any third party to a such Non-Assignable Contract has not consented Contracts available to an assignment thereof to Buyer, and (c) enforce at the request of Buyer and at the expense and for the account of Buyer, any reason, then Buyer shall have absolutely no liability or obligation to Sellers, rights of Seller arising from such third Non-Assignable Contracts against the other party or parties thereto (including the right to elect to terminate any other party with respect to such Non-Assignable Contract in accordance with the terms thereof). Anything contained herein to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Non-Assignable Contract or any other claim, right, contract, license, lease, commitment, sales order, or purchase order if an attempted assignment thereof without the consent of the other party thereto would constitute a breach thereof or in any material way affect the rights of Seller thereunder, unless such consent is obtained. Seller will not take any action or suffer any omission that would limit, restrict or terminate in any material respect the benefits to Buyer of such Non-Assignable Contracts unless, in good faith and after consultation with and prior written notice to Buyer, Seller is ordered orally or in writing to do so by a governmental authority of competent jurisdiction or Seller is otherwise required to do so by Law; provided, however, that if any such order is appealable, Seller will, at the expense and for the account of Buyer, take such actions as are requested by Buyer to file and pursue such appeal and to obtain a stay of such order. With respect to any Non- Assignable Contract as to which the necessary approval or consent for the assignment or transfer to Buyer is obtained following the Closing, Seller shall transfer such Non-Assignable Contract shall be deemed not to be an Asset or an Assigned Contract pursuant to the terms of this Agreement; and, if any Non-Assignable Contract is not assigned by Buyer for any reason, and Buyer considers in its sole judgment that such Non-Assignable Contract is material to the business to be conducted by Buyer after the Closing Date (as defined in Section 3.1) then, at Buyer's option, Buyer shall have no obligation to consummate its purchase hereunder. In the event that Buyer consummates its purchase hereunder and any Non-Assignable Contract has not been assigned to Buyer for any reason then either by execution and delivery of an instrument of assignment reasonably satisfactory to Buyer within three (a3) Buyer and Sellers shall negotiate in good faith to adjust the Purchase Price based on such event and/or (b) Buyer and Sellers shall cooperate in good faith with the other party in any reasonable arrangement necessary or desirable to provide Buyer the benefits business days following receipt of such Non-Assignable Contractapproval or consent.

Appears in 1 contract

Samples: Asset Purchase Agreement