Common use of Procedures for Purchased Assets not Transferable Clause in Contracts

Procedures for Purchased Assets not Transferable. If, either by virtue of the provisions thereof or under applicable Law, any of the Contracts or any other property or rights included in the Purchased Assets are not assignable or transferable without the consent of some other Person, Seller shall diligently use all commercially reasonable efforts to obtain such consent prior to the Closing Date and Purchaser shall use all commercially reasonable efforts to assist in that endeavor. If any such consent cannot be obtained prior to the Closing Date and the Closing occurs, this Agreement and the related instruments of transfer shall not constitute an assignment or transfer thereof, but Seller shall diligently use all commercially reasonable efforts for a period of nine (9) months following the Closing Date to obtain such consent as soon as possible after the Closing Date or otherwise obtain for Purchaser the practical benefit of such property or rights and Purchaser shall use all commercially reasonable efforts to assist in that endeavor. With respect to each Contract for which a necessary consent has not been obtained prior to the Closing, Seller shall obtain for Purchaser, at no additional cost to Purchaser, the benefits of such Contract (including all payments due to Seller thereunder) until such consent is obtained. With respect to any right under such Contract (including any right to payment), at Purchaser's request, Seller shall institute legal proceedings to enforce such rights; provided that such litigation shall be at the sole cost of Purchaser and Purchaser shall control the conduct of such litigation. Except as so requested, Seller shall have no obligation to take such action. Furthermore, until such consent is obtained, Purchaser shall not assume Seller's obligations with respect to such Contract but shall, as Seller's agent and on behalf of Seller, pay, perform and discharge fully Seller's obligations thereunder to the extent that such obligations would have otherwise constituted Assumed Liabilities. Without Purchaser's prior written consent, Seller shall take no action to terminate or modify any such Contract.

Procedures for Purchased Assets not Transferable. If, either by virtue of the provisions thereof or under applicable Law, If any of the Contracts or any other property or rights included in the Purchased Assets are not assignable or transferable either by virtue of the provisions thereof or under applicable law without the consent of some other Personone or more third Persons, Seller shall diligently use all commercially reasonable efforts to obtain such consent prior to the Closing Date consents as soon as practical, and Purchaser Buyer shall use all commercially reasonable efforts to assist in that endeavor, and in the event such consents are not obtained by the Closing Date, at the Closing Seller shall provide Buyer with the practical benefit of such property or rights in accordance with this Section 2.5. If any of the permits included in the Purchased Assets are not so assignable or transferable without the consent of one or more third Persons, it shall be Seller's obligation to obtain such consents or to obtain replacement permits issued in Buyer's name, and Buyer shall use commercially reasonable efforts to assist in that endeavor, including the completion of any applications or other documentation relating thereto. If any such consent cannot be obtained prior to the Closing Date and the Closing occurs, this Agreement and the related instruments of transfer shall not constitute an assignment or transfer thereofthereof and Buyer shall not assume Seller's obligations with respect thereto, but Seller shall diligently use all commercially reasonable efforts for a period of nine (9) months following the Closing Date to obtain such consent as soon as possible after the Closing Date or otherwise obtain for Purchaser Buyer the practical benefit of such property or rights rights, it being further understood that prior to obtaining any such consents, on or before the Closing Date, Seller shall execute the necessary documentation and Purchaser take all necessary action to authorize Buyer to act as Seller's agent under such permits, to the extent permitted under such permits and applicable law, until replacement permits are issued in Buyer's name and Buyer shall use all commercially reasonable efforts to assist in that endeavor. With respect to each Contract The parties acknowledge that Seller shall indemnify Buyer for which a necessary consent has not been obtained prior any loss or expense incurred by Buyer relating to the Closingfailure by Seller to obtain any such consents, Seller shall obtain for Purchaser, at no additional cost to Purchaser, replacement permits or the benefits practical benefit of such Contract property or rights in accordance with this Section 2.5 (including all payments due to Seller thereunder) until such consent is obtained. With respect to any right under such Contract (including any right to payment), at Purchaser's request, Seller shall institute legal proceedings to enforce such rights; provided that such litigation shall be at the sole cost of Purchaser and Purchaser shall control the conduct of such litigation. Except as so requested, Seller shall have no obligation to take such action. Furthermore, until such consent is obtained, Purchaser which indemnification obligations shall not assume Seller's obligations with respect to such Contract but shall, as Seller's agent and on behalf of Seller, pay, perform and discharge fully Seller's obligations thereunder be subject to the extent that such obligations would have otherwise constituted Assumed Liabilities. Without Purchaser's prior written consent, Seller shall take no action to terminate or modify any such Contractlimitations of Section 12.1.2 below).

Procedures for Purchased Assets not Transferable. If, either by virtue of the provisions thereof or under applicable Law, (a) If any of the Contracts or any other property or rights included in the Purchased Assets are not assignable or transferable either by virtue of the provisions thereof or under applicable law without the consent of some other Personparty or parties, Seller shall diligently use all its commercially reasonable efforts to obtain such consent consents after the execution of this Agreement, but prior to the Closing Date Closing, and Purchaser Buyer shall use all its commercially reasonable efforts to assist in that endeavor. If any such consent cannot be obtained prior to the Closing Date and the Closing occurs, this Agreement and the related instruments of transfer shall not constitute an assignment or transfer thereofthereof and Buyer shall not assume Seller's obligations with respect thereto, but Seller shall diligently use all its commercially reasonable efforts for a period of nine (9) months following the Closing Date to obtain such consent as soon as reasonably possible after the Closing Date or otherwise obtain for Purchaser Buyer the practical benefit of such property or rights and Purchaser Buyer shall use all its commercially reasonable efforts to assist in that endeavor. With respect For purposes of this Section 2.5, commercially reasonable efforts shall not include any requirement of either party to each Contract expend money, commence any litigation or offer or grant any accommodation (financial or otherwise) to any third party. In the case of any Contracts for which a necessary consent has not been obtained prior obtained, Buyer shall provide all goods and services and bear all costs necessary to the Closingcomplete such Contracts at no cost to Seller, and Seller shall obtain hold for Purchaser, at no additional cost Buyer's account and promptly remit to Purchaser, the benefits of such Contract (including Buyer all payments due to Seller thereunder) until such consent is obtained. With respect to any right under such Contract (including any right to payment), at Purchaser's request, Seller shall institute legal proceedings to enforce such rights; provided that such litigation shall be at the sole cost of Purchaser and Purchaser shall control the conduct of such litigation. Except as so requested, Seller shall have no obligation to take such action. Furthermore, until such consent is obtained, Purchaser shall not assume Seller's obligations amounts received with respect to such Contracts. (b) The parties shall use their commercially reasonable efforts to cause the purchaser under each of the Mixed GPO Contracts to enter into a new agreement or amendment with Buyer or to assign the Agreement to Buyer pursuant to which the provisions of the Mixed GPO Contracts relating to future sales of Products shall be terminated and replaced by such new agreement, amendment or assignment between the purchaser and Buyer on substantially similar terms as the applicable Mixed GPO Contract but shall("New GPO Contract"). (c) In the event that Buyer has not, despite its commercially reasonable efforts, entered into a New GPO Contract with respect to each of the top five (5) Mixed GPO Contracts identified on Schedule 2.5 within one hundred twenty (120) days following Closing (the "Final GPO Date"), Buyer shall be entitled to a credit against the Promissory Note equal to one hundred thousand dollars ($100,000) multiplied by the number of such top five Mixed GPO Contracts for which no New GPO Contract exists as Seller's agent and on behalf of Sellersuch date. (d) On the Final GPO Date, pay, perform and discharge fully Seller's obligations thereunder the principal balance of the Promissory Note as of the Final GPO Date shall be reduced by an amount equal to one hundred thousand dollars multiplied by the number of top five Mixed GPO Contracts not replaced with New GPO Contracts prior to the extent that such obligations would have otherwise constituted Assumed Liabilities. Without Purchaser's prior written consent, Seller shall take no action to terminate or modify any such ContractFinal GPO Date.