Common use of Procedures for Assets Not Transferable Clause in Contracts

Procedures for Assets Not Transferable. Notwithstanding anything to the contrary contained in this Agreement, to the extent that the sale, conveyance, transfer, assignment or delivery, or attempted sale, conveyance, transfer, assignment or delivery, to the Purchaser of any Transferred Asset is prohibited by applicable Law or would require any governmental or third-party authorizations, approvals, consents or waivers (collectively, the “Consents”), the Seller and the Purchaser shall use their commercially reasonable efforts to obtain such Consents prior to the Closing and, if any such Consents shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, conveyance, transfer, assignment or delivery thereof if any of the foregoing would constitute a breach of applicable Law or the rights of any third party; provided, however, that, notwithstanding the foregoing, the Closing shall occur on the terms and conditions set forth herein, including the Seller’s right to receive the Purchase Price in full pursuant to Section 3.1 hereof; provided, further, that the Seller shall not be relieved of its obligations to sell, and the Purchaser shall not be relieved of its obligations to purchase, acquire and assume any such Transferred Assets. Following the Closing, the parties shall use their commercially reasonable efforts, and cooperate with each other, to obtain promptly such Consents. Pending or in the absence of any such Consent, the parties shall use their commercially reasonable efforts to implement an alternative arrangement to permit the Purchaser to realize, receive and enjoy substantially similar rights and the full benefits of any such Transferred Asset as if such impediment to assignment or transfer did not exist. If any such Consent is obtained after the Closing, the Seller shall convey, transfer, assign and deliver the applicable Transferred Asset to the Purchaser.

Procedures for Assets Not Transferable. Notwithstanding anything To the extent that any Acquired Asset or Assumed Obligation to the contrary contained in be sold, conveyed, assigned, transferred, delivered or assumed to or by Purchaser pursuant to this Agreement, to or any claim, right, or benefit arising thereunder or resulting therefrom, is not capable of being sold, conveyed, assigned, transferred or delivered without the extent that approval, consent, or waiver of the issuer thereof or the other party thereto, or any Third Person (including a Governmental Authority), or if such sale, conveyance, transferassignment, assignment transfer or delivery, delivery or attempted sale, conveyance, transferassignment, assignment transfer or delivery, to the Purchaser delivery would constitute a breach or termination right thereof or a violation of any Transferred Asset is prohibited by applicable Law or would require any governmental or third-party authorizationsLaw, approvals, consents or waivers (collectively, the “Consents”), the Seller and the Purchaser shall use their commercially reasonable efforts to obtain such Consents prior to the Closing and, if any such Consents shall not have been obtained prior to the Closingexcept as expressly otherwise provided in this Agreement, this Agreement shall not constitute a sale, conveyance, transferassignment, assignment transfer or delivery thereof, or an attempted sale, conveyance, assignment, transfer or delivery thereof if any of the foregoing would constitute a breach of applicable Law absent such approvals, consents or the rights of any third party; provided, however, that, notwithstanding the foregoing, the Closing shall occur on the terms and conditions set forth herein, including the Seller’s right to receive the Purchase Price in full pursuant to Section 3.1 hereof; provided, further, that the Seller shall not be relieved of its obligations to sell, and the Purchaser shall not be relieved of its obligations to purchase, acquire and assume any such Transferred Assets. Following the Closing, the parties shall use their commercially reasonable efforts, and cooperate with each other, to obtain promptly such Consents. Pending or in the absence of any such Consent, the parties shall use their commercially reasonable efforts to implement an alternative arrangement to permit the Purchaser to realize, receive and enjoy substantially similar rights and the full benefits of any such Transferred Asset as if such impediment to assignment or transfer did not existwaivers. If any such Consent is obtained after approval, consent or waiver shall not be obtained, or if an attempted assignment of any such Acquired Asset or the Closingassumption of any Assumed Obligation by Purchaser would be ineffective so that Purchaser would not in fact receive all such Acquired Assets or assume all such Assumed Obligations pursuant to this Agreement, Seller and Purchaser shall cooperate in a mutually agreeable arrangement under which Purchaser would obtain the benefits and assume the obligations of such Acquired Assets and Assumed Obligations in accordance with this Agreement, including subcontracting, sub-licensing, or sub-leasing to Purchaser or under which Seller, at Purchaser's expense, would enforce for the benefit of Purchaser, any and all rights of Seller shall convey, transfer, assign and deliver the applicable Transferred Asset to the Purchaseragainst a Third Party thereto.

Procedures for Assets Not Transferable. Notwithstanding anything any other provision of this Agreement to the contrary contained in this Agreementcontrary, to the extent there are any Consents that have not yet been obtained (or otherwise are not in full force and effect) as of the saleClosing, conveyance, transfer, assignment with respect to any Contracts or delivery, Permits which comprise a portion of the Acquired Assets or attempted sale, conveyance, transfer, assignment any other property or delivery, right included in the Assumed Liabilities or the Acquired Assets as to the Purchaser of any Transferred Asset is prohibited by applicable Law which such Consents were not obtained (or would require any governmental or third-party authorizations, approvals, consents or waivers otherwise are not in full force and effect) (collectively, the “ConsentsRestricted Assets”), neither this Agreement nor the Seller Assignment and the Purchaser shall use their commercially reasonable efforts to obtain such Consents prior Assumption Agreement nor any other document related to the Closing and, if any such Consents consummation of the Acquisition shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, conveyance, transferassignment, assignment transfer or delivery thereof if any or an attempted sale, conveyance, assignment, transfer or delivery of the foregoing would constitute a breach Restricted Assets, or an assumption by Purchaser of applicable Law or the rights of any third party; provided, however, that, notwithstanding the foregoing, the Closing shall occur on the terms and conditions set forth herein, including the Seller’s right to receive the Purchase Price in full pursuant to Section 3.1 hereof; provided, further, that the Seller shall not be relieved of its obligations to sellthereunder, and the Purchaser shall not be relieved of its obligations to purchase, acquire and assume any such Transferred Assets. Following following the Closing, the parties shall use their commercially reasonable efforts, and cooperate with each other, to obtain promptly such Consentsthe Consent relating to each Restricted Assets as quickly as practicable. Pending or in the absence obtaining of such Consents relating to any such ConsentRestricted Asset, the parties shall use their commercially cooperate with each other in any reasonable efforts and lawful arrangements designed to implement an alternative arrangement provide to permit Purchaser the Purchaser to realize, receive and enjoy substantially similar rights and the full net benefits of use of the Restricted Asset for its term (or any right or benefit arising thereunder, including the enforcement for the benefit of Purchaser of any and all rights of Seller against a third party thereunder). Once a Consent for the sale, conveyance, assignment, transfer and delivery of a Restricted Asset is obtained, Seller shall promptly convey, assign, transfer and deliver such Transferred Restricted Asset as if to Purchaser, and Purchaser shall assume the obligations under such impediment Restricted Asset assigned to assignment or transfer did not exist. If any such Consent is obtained Purchaser from and after the Closing, the Seller shall convey, transfer, assign and deliver the applicable Transferred Asset date of assignment to the Purchaser.

Procedures for Assets Not Transferable. Notwithstanding anything Anything in this Agreement to the contrary contained in notwithstanding, this AgreementAgreement shall not constitute an agreement to assign any Contract or any claim or right or any benefit or obligation thereunder or resulting therefrom if an assignment thereof, without the Consent of a Third Party, would constitute a breach or violation thereof and if consent to such assignment is not obtained on or prior to the extent that Closing Date. If any Contracts or Permits included within the salePurchased Assets are not assignable or transferable to the Buyer without the Consent of any Governmental Authority or Third Party, conveyanceand such Consent has not been obtained prior to the Closing Date and the Closing occurs, transfer, this Agreement and the Assignment and Assumption Agreements shall not constitute an assignment or delivery, or attempted sale, conveyance, transfer, assignment or delivery, to the Purchaser of any Transferred Asset transfer thereof unless and until such Consent is prohibited by applicable Law or would require any governmental or third-party authorizations, approvals, consents or waivers (collectively, the “Consents”)obtained. In such case, the Seller and the Purchaser shall use their commercially reasonable efforts to obtain such Consents prior to Consent as soon as possible after the Closing and, if any such Consents shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, conveyance, transfer, assignment or delivery thereof if any of the foregoing would constitute a breach of applicable Law or the rights of any third partyDate; provided, however, that, notwithstanding the foregoing, the Closing shall occur on the terms and conditions set forth herein, including the Seller’s right to receive the Purchase Price in full pursuant to Section 3.1 hereof; provided, further, that the Seller shall not be relieved of its obligations required to sell, incur out-of-pocket expenses in connection therewith and the Purchaser Buyer shall not be relieved of its obligations to purchase, acquire and assume any such Transferred Assetscooperate with the Seller in that endeavor. Following the Closing, the parties The Seller shall use their commercially reasonable efforts, and cooperate with each other, to obtain promptly such Consents. Pending or in the absence of any such Consent, the parties shall use their commercially reasonable efforts to implement an alternative arrangement to permit provide the Purchaser to realize, receive and enjoy substantially similar rights and Buyer the full benefits benefit of any such Transferred Asset as if such impediment Contract or Permit and to assignment or transfer did not exist. If enforce, at the request of the Buyer September 9, 2004 (Wire) and for the account of the Buyer, any rights of the Seller arising from any such Consent is obtained after Contract or Permit, including the Closing, right to elect to terminate in accordance with the Seller shall convey, transfer, assign and deliver terms thereof upon the applicable Transferred Asset advice of the Buyer (to the Purchaserextent legally permissible) and shall cooperate in any commercially reasonable and lawful arrangement designed to provide such benefits to the Buyer. The costs of any such efforts in providing such benefits shall be for the Buyer's account and in no event shall the Seller's obligations to provide the benefit of any such Contract or Permit extend beyond the ninetieth (90th) day following the Closing Date.

Procedures for Assets Not Transferable. Notwithstanding anything to the contrary contained in this Agreement, to the extent that if the sale, conveyanceassignment, sublease, transfer, assignment conveyance or delivery, delivery or attempted sale, conveyancesublease, assignment, transfer, assignment conveyance or delivery, delivery to the Purchaser Buyer of any Transferred asset that would be a Purchased Asset or any claim or right or any benefit arising thereunder or resulting therefrom is prohibited by any applicable Law or would require any governmental or third-third party authorizationsConsents, approvals, consents or waivers (collectively, the “Consents”), the Seller and the Purchaser shall use their commercially reasonable efforts to obtain such Consents prior to the Closing and, if any such Consents shall not have been obtained prior to the ClosingClosing (“Non-Transferable Asset”), then (i) the Closing shall proceed without the sale, assignment, sublease, transfer, conveyance or delivery of such Non-Transferable Asset unless such failure causes a failure of any of the conditions to Closing set forth in Article VII, in which event the Closing shall proceed only if the failed condition is waived by the party or parties entitled to the benefit thereof and (ii) nothing in this Agreement shall not constitute a sale, conveyance, transfer, or be construed as an assignment or delivery thereof if transfer of, or an attempt or agreement to assign or transfer such Non-Transferable Asset to the Buyer. In order, however, to seek to provide the Buyer with the full realization and value of any Non-Transferable Assets described in the preceding sentence, (a) as soon as practicable after the Closing and until the 18 month anniversary of the foregoing would constitute a breach of applicable Law or Closing, the rights Seller and the Buyer shall cooperate and use Reasonable Efforts to obtain any remaining Consents necessary to the assignment of any third partysuch Non-Transferable Asset; provided, however, thatthat neither Party shall be required to make any payments (other than filing, notwithstanding recordation or similar fees which shall be shared equally by Seller and Buyer) or agree to any material undertakings in connection therewith. Pending such Consent, until the foregoing, the Closing shall occur on the terms and conditions set forth herein, including the Seller’s right to receive the Purchase Price in full pursuant to Section 3.1 hereof; provided, further, that the Seller shall not be relieved 18 month anniversary of its obligations to sell, and the Purchaser shall not be relieved of its obligations to purchase, acquire and assume any such Transferred Assets. Following the Closing, the parties Parties shall use their commercially reasonable efforts, and cooperate with each otherother in any mutually agreeable, reasonable and lawful arrangements designed to obtain promptly provide to Buyer the benefits of use of such ConsentsNon-Transferable Asset and to Seller or its Affiliates the benefits, including any indemnities, that they would have obtained had the Non-Transferable Asset been conveyed to Buyer at the Closing. Pending Once Consent for the sale, assignment, sublease, transfer, conveyance or in the absence delivery of any such Consentasset not sold, assigned, subleased, transferred, conveyed or delivered at the parties Closing is obtained, Seller shall use their commercially reasonable efforts or shall cause the relevant Affiliates to, assign, transfer, convey and deliver such Non-Transferable Asset to implement an alternative arrangement Buyer at no additional cost; provided that to permit the Purchaser maximum extent, such Non-Transferable Asset will be deemed to realize, receive and enjoy substantially similar rights and be automatically assigned to Buyer or its applicable Subsidiary hereunder upon the receipt of the applicable Consent without any further action by the Parties. To the extent that any such Non-Transferable Asset cannot be transferred or the full benefits of use of any such Transferred Non-Transferable Asset as if such impediment cannot be provided to assignment or transfer did not exist. If any such Consent is obtained after Buyer following the Closing pursuant to this Section 1.4, then, until the 18 month anniversary of the Closing, Buyer and Seller shall enter into such arrangements (including subleasing, sublicensing or subcontracting) to provide to the Parties hereto the economic (taking into account Tax costs and benefits) and operational equivalent, to the extent permitted, of obtaining such Consent and the performance by Buyer of the obligations thereunder. Until the 18 month anniversary of the Closing, Seller shall hold in trust for and pay to Buyer promptly upon receipt thereof, all income, proceeds and other monies received by Seller or any of its Affiliates in connection with its use of any Non-Transferable Asset (net of any Taxes and any other costs imposed upon Seller or any of its Affiliates) in connection with the arrangements under this Section 1.4. In connection with this Section 1.4, until the 18 month anniversary of the Closing, if reasonably requested by the Buyer, with respect to any Assigned Contracts that constitute Non-Transferable Assets, (i) the Seller shall conveyuse Reasonable Efforts to seek to enforce for the benefit of the Buyer all reasonable claims or rights of the Seller arising thereunder and (ii) the Buyer shall perform and comply with, transferat the Buyer’s sole cost, assign and deliver all of the applicable Transferred Asset Seller’s obligations under any such Assigned Contracts held in trust for the benefit of Buyer as contemplated by this Section 1.4, as if the Buyer was the Seller thereunder. Subject to the Purchaserlimitations set forth in Article X, the Buyer shall indemnify and hold harmless the Seller and its Affiliates for any and all Liabilities arising in connection with any action by a third party arising from, in connection with, or otherwise with respect to actions taken or not taken by the Seller at the Buyer’s request pursuant to this Section 1.4, and the Buyer shall reimburse the Seller for all reasonable and documented out of pocket expenses incurred by the Seller arising from, in connection with or otherwise with respect to actions taken by the Seller at the Buyer’s request pursuant to this Section 1.4. For greater certainty, the Excluded Assets shall not constitute Non-Transferable Assets.

Procedures for Assets Not Transferable. Notwithstanding anything (a) Except as otherwise provided in Section 1.5(b), if there are any Consents that have not yet been obtained (or otherwise are not in full force and effect) as of the Closing, with respect to any Permits which comprise a portion of the contrary contained Acquired Assets or any other property or right included in this Agreement, the Assumed Liabilities or the Acquired Assets as to the extent that the sale, conveyance, transfer, assignment which such Consents were not obtained (or delivery, or attempted sale, conveyance, transfer, assignment or delivery, to the Purchaser of any Transferred Asset is prohibited by applicable Law or would require any governmental or third-party authorizations, approvals, consents or waivers otherwise are not in full force and effect) (collectively, the “Consents”"Restricted Assets"), then notwithstanding Section 1.1, Section 1.3 and Section 3.5, neither this Agreement nor the Seller Assignment and the Purchaser shall use their commercially reasonable efforts to obtain such Consents prior Assumption Agreement nor any other document related to the Closing and, if any such Consents consummation of the Acquisition shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, conveyance, transferassignment, assignment transfer or delivery thereof if any or an attempted sale, conveyance, assignment, transfer or delivery of the foregoing would constitute a breach of applicable Law or the rights of any third party; provided, however, that, notwithstanding the foregoing, the Closing shall occur on the terms and conditions set forth herein, including the Seller’s right to receive the Purchase Price in full pursuant to Section 3.1 hereof; provided, further, that the Seller shall not be relieved of its obligations to sellRestricted Assets, and the Purchaser shall not be relieved of its obligations to purchase, acquire and assume any such Transferred Assets. Following following the Closing, the parties shall use their commercially reasonable efforts, and cooperate with each other, to obtain promptly such Consentsthe Consent relating to each Restricted Assets as quickly as practicable. Pending the obtaining of such Consents relating to any Restricted Asset, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to provide to Purchaser the benefits of use of the Restricted Asset for its term (or in any right or benefit arising thereunder, including the absence enforcement for the benefit of Purchaser of any and all rights of Seller against a third party thereunder). Once a Consent for the sale, conveyance, assignment, transfer and delivery of a Restricted Asset is obtained, Seller shall (for no additional consideration hereunder) promptly convey, assign, transfer and deliver such Restricted Asset to Purchaser, and Purchaser shall assume the obligations under such Restricted Asset assigned to Purchaser from and after the date of assignment to Purchaser. (b) If there are any Consents necessary for the assignment and transfer of any Contracts (other than the Material Customer Contracts) (the "Nonmaterial Consents") that have not yet been obtained (or otherwise are not in full force and effect) as of the Closing (the "Restricted Contracts"), Purchaser shall accept the assignment of such Restricted Contracts, in which case, as between Seller and Purchaser, such Restricted Contracts shall, to the maximum extent practicable and notwithstanding the failure to obtain the applicable Nonmaterial Consent, be transferred at the Closing pursuant to the Assignment and Assumption Agreement. Following the Closing, the parties shall use their commercially reasonable efforts efforts, and cooperate with each other, to implement an alternative arrangement to permit the Purchaser to realize, receive and enjoy substantially similar rights and the full benefits of any such Transferred Asset as if such impediment to assignment or transfer did not exist. If any such Consent is obtained after the Closing, the Seller shall convey, transfer, assign and deliver the applicable Transferred Asset obtain Consents relating to the PurchaserRestricted Contracts as quickly as practicable.

Procedures for Assets Not Transferable. Notwithstanding anything to (a) If any Contract, Permit or any other property or right included in the contrary contained in this Agreement, to Assumed Liabilities or the extent that Acquired Assets is not assignable or transferable without the sale, conveyance, transfer, assignment or delivery, or attempted sale, conveyance, transfer, assignment or delivery, to the Purchaser Consent of any Transferred Asset is prohibited by applicable Law or would require any governmental or third-party authorizationsPerson, approvals, consents or waivers (collectively, the “Consents”), the Seller and the Purchaser shall use their commercially reasonable efforts to obtain such Consents prior to the Closing and, if any such Consents shall Consent has not have been obtained prior to the Closing, this Agreement and the related instruments of transfer shall not constitute a sale, conveyance, transfer, an assignment or delivery thereof if any of the foregoing would constitute a breach of applicable Law or the rights of any third party; provided, however, that, notwithstanding the foregoing, the Closing shall occur on the terms and conditions set forth herein, including the Seller’s right to receive the Purchase Price in full pursuant to Section 3.1 hereof; provided, further, that the Seller shall not be relieved of its obligations to sell, and the Purchaser shall not be relieved of its obligations to purchase, acquire and assume any such Transferred Assetstransfer thereof. Following the Closing, the parties Purchaser, Seller and Liberty Georgetown shall use their commercially reasonable efforts, and shall cooperate with each other, to obtain promptly such Consents. Pending or in the absence of any such Consentrequired Consent required to novate all Acquired Assets or Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Purchaser shall be solely responsible for such Assumed Liabilities from and after the parties Closing Date; provided, however, that neither Seller, Liberty Georgetown nor Purchaser shall be required to pay any consideration therefor. Once such Consent is obtained, Seller shall sell, assign, transfer, convey and deliver to Purchaser the relevant Acquired Asset to which such Consent relates for no additional consideration. (b) To the extent that any Acquired Asset and/or Assumed Liability cannot be transferred to Purchaser following the Closing pursuant to this Section 1.5, Purchaser, Seller and Liberty Georgetown shall use their commercially reasonable efforts to implement an alternative arrangement enter into such arrangements (such as subleasing, sublicensing or subcontracting) to permit provide to the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Acquired Asset and/or Assumed Liability to Purchaser to realize, receive and enjoy substantially similar rights as of the Closing and the full benefits performance by Purchaser of any such Transferred Asset its obligations with respect thereto. Purchaser shall, as if such impediment to assignment agent or transfer did not exist. If any such Consent is obtained subcontractor for Seller, pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing, the Seller shall convey, transfer, assign and deliver the applicable Transferred Asset to the PurchaserClosing Date.

Procedures for Assets Not Transferable. Notwithstanding anything to the contrary contained in this Agreement, to the extent that the sale, conveyance, transfer, assignment or delivery, delivery or attempted sale, conveyance, transfer, assignment or delivery, delivery to the Buyer or any Designated Purchaser of any Transferred Asset (but not any Transferred Shares) is prohibited by applicable Law or would require any governmental or third-party authorizations, approvals, consents or waivers (collectively, the “Consents”), ) the Seller and the Purchaser Company shall use its, and shall cause its Subsidiaries to use their commercially respective reasonable best efforts to obtain such Consents prior to the Closing and, and if any such Consents shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, conveyance, transfer, assignment or delivery thereof if any of the foregoing would constitute a breach of applicable Law or the rights of any third party; provided, however, that, notwithstanding the foregoing, that the Closing shall occur notwithstanding the foregoing on the terms and conditions set forth herein; provided further, including the Seller’s right to receive the Purchase Price in full pursuant to Section 3.1 hereof; provided, furtherhowever, that the Seller Company shall not be relieved of its obligations obligation to sell, and the Purchaser shall not be relieved Buyer of its obligations obligation to purchase, acquire and assume any such Transferred Assets. Following the Closing, the parties shall use their commercially reasonable efforts, best efforts and shall cooperate with each other, other to obtain promptly such Consents. Pending or in the absence of any such Consent, the parties shall use their commercially respective reasonable best efforts to implement an alternative arrangement to permit the Purchaser Buyer or the respective Designated Purchaser, as the case may be, to realize, receive and enjoy substantially similar rights and the full benefits of any such Transferred Asset as if such impediment to assignment or transfer did not exist. If any , and to enable Buyer or the respective Designated Purchaser to conduct the Consumables Business or the Transferred Process Operations, as the case may be, until such Consent is obtained obtained; provided, however, that after the Closing, the Seller Company shall, and shall cause its Subsidiaries to, enforce, upon and at the request of the Buyer and for the benefit of the Buyer, any rights of the Company or its Subsidiaries arising with respect to third parties party thereto. If such Consent is obtained, the Company shall, and shall cause its Subsidiaries to, promptly convey, transfer, assign and deliver the applicable deliver, or cause to be conveyed, transferred, assigned and delivered, such Transferred Asset to the Buyer or such Designated Purchaser. The provisions of this Section 2.5 shall not in any way limit the Buyer’s rights under this Agreement in the event that the conditions to Closing are not satisfied.