Common use of Non-Assignment of Certain Contracts Clause in Contracts

Non-Assignment of Certain Contracts. Notwithstanding anything to the contrary in this Agreement, to the extent that the assignment hereunder of any Assumed Contract shall require the consent of any third party, neither this Agreement nor any action taken pursuant to its provisions shall constitute an assignment or an agreement to assign if such assignment or agreement to assign would constitute a breach of such Assumed Contract or result in the loss or material diminution thereof, provided, however, that Sellers shall, at the request of the applicable Buyer, use commercially reasonable efforts to obtain the consent of the other party to such Assumed Contract to an assignment thereof in favor of the applicable Buyer; further provided, however, that if any Assumed Contract requires consent for assignment in favor of such Buyer and such consent is not obtained at or prior to Closing, the applicable Seller shall, to the extent contractually permitted, enter into an operating agreement with the applicable Buyer affording such Buyer the rights, benefits and obligations under such Assumed Contract as if such consent to assignment had been obtained (each, an “Operating Agreement”). In the event that the consent to assign such Assumed Contract is obtained, such Assumed Contract thereupon shall be reasonably promptly assigned from the applicable Seller to the applicable Buyer. Notwithstanding the foregoing, subject to Section 1.7, if such accommodation to the applicable Seller under an Operating Agreement is not contractually permitted, Sellers shall not have any obligations to provide Buyers with the rights, benefits and obligations under such Assumed Contract following the Closing. Notwithstanding anything in this Agreement to the contrary, in no event shall Sellers be obligated to pay any fees, commissions or other compensation to obtain the consent of a third party for the assignment hereunder of any Assumed Contract.

Non-Assignment of Certain Contracts. Notwithstanding anything any provision to the contrary contained herein, Seller may, but shall not be obligated to, assign to Buyer any contract, lease, permit or other instrument which is a Purchased Asset but which restricts or prohibits the transfer or assignment thereof or which provides that it may not be transferred or assigned without the consent of another Person and for which the appropriate consent to the transfer and assignment thereof is not obtained, but in this Agreementany such event, Seller shall use reasonable efforts to obtain such assignments and otherwise cooperate with Buyer in any reasonable arrangement designed to provide the benefits thereof to Buyer. If such consent, approval, waiver, authorization, notice or novation is not obtained, then, to the extent that permitted by applicable Law, such nonassignable Purchased Asset shall be held, as of and from the assignment hereunder Closing, by Seller or its Affiliate for the exclusive benefit of any Assumed Contract shall require Buyer and its Affiliates, and all the consent of any third partyeconomic (taking into account all burdens to Seller and its Affiliates), neither this Agreement nor any action taken pursuant to its provisions shall constitute an assignment or an agreement to assign if such assignment or agreement to assign would constitute a breach operational and other benefits of such Assumed Contract or result in the loss or material diminution thereof, provided, however, that Sellers shall, at the request of the applicable Buyer, use commercially reasonable efforts to obtain the consent of the other party to such Assumed Contract to an assignment thereof in favor of the applicable Buyer; further provided, however, that if any Assumed Contract requires consent for assignment in favor of such Buyer and such consent is not obtained at or prior to Closing, the applicable Seller shallnonassignable Purchased Asset, to the extent contractually permitted, enter into an operating agreement with the applicable Buyer affording such Buyer the rights, benefits shall be held and obligations under such Assumed Contract treated as if such consent to assignment consent, approval, waiver, authorization, notice or novation, as the case may be, had been obtained (each, an “Operating Agreement”)obtained. In the event that the consent Without limitation of and subject to assign such Assumed Contract is obtained, such Assumed Contract thereupon shall be reasonably promptly assigned from the applicable Seller to the applicable Buyer. Notwithstanding the foregoing, subject to Section 1.7at Buyer’s request, Sellers shall, or shall cause its applicable Affiliate to: (i) cooperate, in all reasonable respects, in any lawful and commercially reasonable arrangement proposed by Buyer under which Buyer and its Affiliates would obtain the economic, operational and other benefits thereunder and assume any related economic burden (including the amount of any related Tax costs imposed on Buyer or any of its Affiliates) thereunder; (ii) enforce for the benefit of Buyer and its Affiliates and as directed by Xxxxx, Seller’s or its Affiliate’s rights under such nonassignable Purchased Asset as if such accommodation nonassignable Purchased Asset had been sold, conveyed, assigned and delivered to Buyer or its applicable designee, including in the name of Seller or its applicable Seller under an Operating Agreement is not contractually permittedAffiliate to such nonassignable Purchased Asset or otherwise as Buyer shall specify, Sellers shall not have any obligations including the right to provide Buyers terminate in accordance with the rightsterms thereof; and (iii) permit Buyer to practice, benefits exercise and enforce any rights arising with respect thereto. Buyer shall assume the related economic burden imposed on Seller or its applicable Affiliate (including the amount of any related Tax costs imposed on Seller or its Affiliates) with respect to such nonassignable Purchased Asset and Buyer shall, as agent or subcontractor for Seller or its Affiliate pay, perform and discharge fully as and when required the liabilities and obligations under of Seller or such Assumed Contract following Affiliate with respect to such nonassignable Purchased Asset from and after the Closing. Notwithstanding anything in this Agreement Seller or its applicable Affiliate to the contraryrights of such nonassignable Purchased Asset will promptly pay to Buyer or its applicable designee all income, in no event shall Sellers be obligated proceeds and other monies received by such Seller or Affiliate from third parties to pay the extent related to Buyer’s or its Affiliates’ intended rights under such nonassignable Purchased Asset as contemplated by this Section 5.3. Without limiting the generality of any feesprovision elsewhere herein contained, commissions the non-assignability and non-transferability of, and the failure of any Seller to assign and transfer, any of the foregoing (or other compensation the assignment and transfer by such Seller thereof, despite the prohibition or restriction thereof or the failure to obtain the appropriate consent or to fulfill the conditions thereto) shall not alter or in any manner affect its status as a Purchased Asset. It is the intention of a third party the parties that the “seconding” arrangements contemplated by this Section 5.3 shall be utilized only when there is no reasonable alternative to such arrangement for Buyer, even if such Seller fails to assign any such contract, lease or other instrument. Nothing contained in any transfer document required to be executed by any Seller in connection with the assignment hereunder transfer of any Assumed Contractcontract with a governmental agency or instrumentality shall alter or in any manner affect the status of such contract as a Purchased Asset.

Non-Assignment of Certain Contracts. Notwithstanding anything to the contrary in this Agreement, to the extent that the assignment hereunder of any Assumed Contract of the Purchased Assets shall require the consent of any third partyother party (or in the event that any of the same shall be nonassignable), neither this Agreement nor any action taken pursuant to its provisions shall constitute an assignment or an agreement to assign if such assignment or agreement to assign attempted assignment would constitute a breach of such Assumed Contract thereof or result in the loss or material diminution thereof, ; provided, however, that Sellers shallin each such case, at the request of the applicable Buyer, Seller shall use commercially reasonable its best efforts to obtain the consent of such other party to an assignment to Sub. To the extent that any consents necessary to assign, transfer, sublease or sublicense any of the Purchased Assets are not obtained, Seller shall, commencing on the Closing Date and continuing for the duration of each such Purchased Asset, use reasonable efforts to (i) provide to Sub the benefits of such Purchased Asset not assigned, transferred or subleased due to Seller's failure or inability to obtain such consent or waiver, (ii) cooperate with Purchaser or Sub to reach a reasonable and lawful arrangement designed to provide such benefits to Sub during such period and (iii) enforce at the request of Purchaser or Sub, or allow Purchaser or Sub to enforce (and, solely for such purpose, Seller hereby constitutes and appoints Purchaser or Sub as its true and lawful attorney-in-fact until revoked in a writing delivered by Seller to Purchaser or Sub), any rights of Seller under any such Purchased Asset against the issuer thereof or the other party or parties thereto (including the right to elect to terminate such of the foregoing in accordance with the terms thereof upon the request of Purchaser or Sub). Purchaser and Sub shall provide such assistance as may be reasonably requested by Seller in connection with Seller's performance of its obligations under this Section 2.6. At the end of each such period, Seller shall have no further duties or obligations under this Section 2.6 with respect to such Assumed Contract Purchased Asset and the failure or inability to an assignment thereof in favor obtain any necessary consent or waiver with respect thereto shall not be a breach of the applicable Buyer; further provided, however, that if any Assumed Contract requires consent for assignment in favor of such Buyer and such consent is not obtained at or prior to Closing, the applicable this Agreement so long as Seller shall, to the extent contractually permitted, enter into an operating agreement with the applicable Buyer affording such Buyer the rights, benefits and has carried out its obligations under such Assumed Contract as if such consent to assignment had been obtained (each, an “Operating Agreement”). In the event that the consent to assign such Assumed Contract is obtained, such Assumed Contract thereupon shall be reasonably promptly assigned from the applicable Seller to the applicable Buyer. Notwithstanding the foregoing, subject to this Section 1.7, if such accommodation to the applicable Seller under an Operating Agreement is not contractually permitted, Sellers shall not have any obligations to provide Buyers with the rights, benefits and obligations under such Assumed Contract following the Closing. Notwithstanding anything in this Agreement to the contrary, in no event shall Sellers be obligated to pay any fees, commissions or other compensation to obtain the consent of a third party for the assignment hereunder of any Assumed Contract2.6.

Non-Assignment of Certain Contracts. Notwithstanding anything any other provision of this Agreement to the contrary in this Agreementcontrary, to the extent that the assignment hereunder of any Assumed Contract shall require the consent of any third party, neither this Agreement nor any action taken pursuant to its provisions shall not constitute an assignment or an agreement to assign if such or transfer and shall not cause the assignment or agreement to assign would constitute a breach transfer of such any Acquired Asset (including any Assumed Contract or result in the loss or material diminution Contract) if: (a) an attempted assignment thereof, providedwithout the approval, howeverauthorization or Consent of, that Sellers shallor granting or issuance of any license or permit by, at the request any third party thereto (each such action, a “Necessary Consent”), is not permissible under applicable provisions of the applicable BuyerBankruptcy Code; or (b) the Bankruptcy Court shall not have entered an Order authorizing assumption and assignment without regard to such Necessary Consent. In such event, the Seller and the Buyer will use their commercially reasonable efforts to obtain the consent Necessary Consents with respect to any such Acquired Asset or any claim or right or any benefit arising thereunder for the assignment thereof to the Buyer as the Buyer may reasonably request. If such Necessary Consent is not obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of the other party to Seller thereunder so that the Buyer would not in fact receive all such Assumed Contract to an assignment thereof in favor of the applicable Buyer; further provided, however, that if any Assumed Contract requires consent for assignment in favor of such Buyer and such consent is not obtained at or prior to Closingrights, the applicable Seller shall, and the Buyer will cooperate in a mutually agreeable arrangement to the extent contractually permittedfeasible and at no expense to either Party (other than minor and incidental expenses) under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, enter into an operating agreement including subcontracting, sub-licensing, or sub-leasing to the Buyer, or under which the Seller would enforce for the benefit of the Buyer with the applicable Buyer affording such Buyer assuming the rights, benefits Seller’s Liabilities and obligations under such Assumed Contract as if such consent to assignment had been obtained (each, an “Operating Agreement”). In any and all rights of the event that the consent to assign such Assumed Contract is obtained, such Assumed Contract thereupon shall be reasonably promptly assigned from the applicable Seller to the applicable Buyer. Notwithstanding the foregoing, subject to Section 1.7, if such accommodation to the applicable Seller under an Operating Agreement is not contractually permitted, Sellers shall not have any obligations to provide Buyers with the rights, benefits and obligations under such Assumed Contract following the Closing. Notwithstanding anything in this Agreement to the contrary, in no event shall Sellers be obligated to pay any fees, commissions or other compensation to obtain the consent of against a third party for the assignment hereunder of any Assumed Contractthereto.

Non-Assignment of Certain Contracts. Notwithstanding anything to the contrary in this Agreement, to the extent that the assignment hereunder of any Assumed Contract shall require the consent of any third party, neither this Agreement nor any action taken pursuant to its provisions shall constitute an assignment or an agreement to assign if such assignment or agreement to assign would constitute a breach of such Assumed Contract or result in the loss or material diminution thereof, provided, however, that Sellers Seller shall, at the request of the applicable Buyer, use commercially reasonable efforts to obtain the consent of the other party to such Assumed Contract to an assignment thereof in favor of the applicable Buyer; further provided, however, that if any Assumed Contract requires consent for assignment in favor of such Buyer and such consent is not obtained at or prior to Closingobtained, the applicable Seller shall, to the extent requested by Buyer and contractually permitted, use commercially reasonable efforts to enter into an operating agreement with the applicable Buyer affording such Buyer the rights, benefits and obligations under such Assumed Contract as if such consent to assignment had been obtained (each, an “Operating Agreement”). In the event that the consent to assign any such Assumed Contract is obtained, such Assumed Contract thereupon shall be reasonably promptly immediately assigned from the applicable Seller to the applicable Buyer. Notwithstanding the foregoing, subject to Section 1.7, if such accommodation to the applicable Seller under an Operating Agreement is not contractually permitted, Sellers Seller shall not have any obligations to provide Buyers Buyer or WSI with the rights, benefits and or obligations under such Assumed Contract following the Closing. Notwithstanding anything in this Agreement to the contrary, in no event shall Sellers Seller be obligated to pay any fees, commissions or other compensation to obtain the consent of a third party for the assignment hereunder of any Assumed Contract, and in no event shall Seller be liable for any losses or Liabilities which are the result of any failure to obtain, or any decision by any party hereto not to obtain, any consent of a third party to the assignment or subcontracting of any Contract which is included, or intended to be included, among the Assets.

Non-Assignment of Certain Contracts. Seller shall use good faith reasonable efforts to obtain the written consent of each counterparty to each Assigned Contract that has not been obtained as of the Closing Date (each a “Lacking Third Party Consent”) to the assignment of such Assigned Contract; provided, however, that Seller shall not agree to any amendment or waiver of any of the relevant rights or obligations of any party under any of the relevant Contracts without the prior written approval of Buyer. {*} Notwithstanding anything contained in this Agreement to the contrary, the failure of Seller {*}. Notwithstanding anything to the contrary in this Agreement, to the extent that the assignment hereunder of any Assumed Contract shall {*} to Buyer would require the consent of any third partyThird Party (each, a “Consent”) that has not been obtained by Seller prior to the Closing Date, neither this Agreement Agreement, nor any action taken pursuant to its provisions under any of the foregoing shall constitute an assignment or an agreement to assign such contract if such assignment or agreement to assign this would constitute a breach of the relevant Assigned Contract. If any such Assumed Consent shall not be obtained or if any attempted assignment or transfer would be ineffective or would impair Buyer’s rights under or in respect of any such Contract or result so that Buyer would not, in effect, acquire the loss or material diminution thereofbenefit of any such Contract, providedSeller shall reasonably cooperate with Buyer to extend to Buyer the benefits of such Contract in a contractually permissible way. {*} = Certain confidential information contained in this document, howevermarked by brackets, that Sellers shall, at has been omitted and filed separately with the request Securities and Exchange Commission pursuant to Rule 24b-2 of the applicable BuyerSecurities Exchange Act of 1934, use commercially reasonable efforts to obtain the consent of the other party to such Assumed Contract to an assignment thereof in favor of the applicable Buyer; further provided, however, that if any Assumed Contract requires consent for assignment in favor of such Buyer and such consent is not obtained at or prior to Closing, the applicable Seller shall, to the extent contractually permitted, enter into an operating agreement with the applicable Buyer affording such Buyer the rights, benefits and obligations under such Assumed Contract as if such consent to assignment had been obtained (each, an “Operating Agreement”). In the event that the consent to assign such Assumed Contract is obtained, such Assumed Contract thereupon shall be reasonably promptly assigned from the applicable Seller to the applicable Buyer. Notwithstanding the foregoing, subject to Section 1.7, if such accommodation to the applicable Seller under an Operating Agreement is not contractually permitted, Sellers shall not have any obligations to provide Buyers with the rights, benefits and obligations under such Assumed Contract following the Closing. Notwithstanding anything in this Agreement to the contrary, in no event shall Sellers be obligated to pay any fees, commissions or other compensation to obtain the consent of a third party for the assignment hereunder of any Assumed Contractamended.