Restricted Assets. The Sellers shall use all reasonable efforts, and the Buyer shall cooperate reasonably with the Sellers, (i) to promptly obtain the consents and waivers necessary to convey or cause to be conveyed to the Buyer all of the Restricted Assets, and (ii) as of and subject to the occurrence of each Closing, to promptly convey or cause to be conveyed to the Buyer the Restricted Assets to be conveyed to the Buyer at such Closing for which the Sellers have received the necessary consents and waivers; provided, however, that the Sellers shall not amend or change any Restricted Asset without the prior written consent of the Buyer unless the Sellers reasonably deem it necessary to preserve the value of the Restricted Asset. The Sellers shall cooperate with the Buyer in making applications and filings or taking any other action necessary for the Buyer to obtain such franchises, licenses, permits or other instruments or agreements, if any, as are substantially equivalent to any Restricted Assets that are not assignable to Buyer as a matter of law. In no event shall the Buyer's cooperation hereunder require the Buyer to make any payments or incur any out-of-pocket expenses, except that the Buyer shall reimburse the Sellers on an equitable basis for any consideration paid, with the prior approval of the Buyer, to any person from whom a consent or waiver is requested. To the extent that the consents and waivers necessary to assign, transfer, sublease or sublicense any of the Restricted Assets are not obtained, the Sellers shall, during the period commencing on the U.S. Closing Date (or, in the case of Restricted Assets held by BC France, the France Closing Date) and continuing for the duration of each such Restricted Asset, use reasonable efforts to (i) provide to the Buyer the benefits of any such Restricted Asset not assigned, transferred or subleased due to the Sellers' failure or inability to obtain such consent or waiver, (ii) cooperate with the Buyer to reach a reasonable and lawful arrangement designed to provide such benefits to the Buyer during such period, and (iii) enforce at the request of the Buyer, or allow the Buyer to enforce (and, for such purpose, each Seller hereby constitutes and appoints the Buyer as its true and lawful attorney-in-fact), any rights of any of the Sellers under any PAGE such Restricted 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 the Buyer); provided, however, that the reasonable costs and expenses of the Sellers incurred at the Buyer's request with respect to any of the actions contemplated under clause (iii) above shall be promptly paid or reimbursed by the Buyer to the Sellers. At the end of each such period, the Sellers shall have no further duties or obligations under this Section 2.10 with respect to such Restricted Asset and the failure or inability to obtain any necessary consent or waiver with respect thereto shall not constitute a breach of this Agreement so long as the Sellers have carried out their obligations under this Section 2.10. To the extent that the Buyer is provided the benefits of any Restricted Asset pursuant to clause (b) of this Section 2.10, the Buyer shall perform for the benefit of the issuer thereof, or the other party or parties thereto, the obligations of the applicable Seller thereunder or in connection therewith, but only to the extent that (i) such action by the Buyer would not result in any default thereunder or in connection therewith and (ii) such obligation would have been an Assumed Liability but for the non-assignability or non-transferability thereof; provided, however, that if the Buyer shall fail to perform to the extent required herein, the Sellers shall thereafter cease to be obligated under this Section 2.10 to provide the Buyer with any benefits in respect of the Restricted Asset which is the subject of such failure to perform unless and until such situation is remedied or, at the sole option of the applicable Seller, the Buyer shall promptly pay or reimburse such Seller for all costs reasonably incurred by such Seller to remedy such failure to perform during such period of failure of performance. Sellers' Representative. In order to efficiently administer the transactions contemplated hereby, including (i) the determination of any adjustment to the Purchase Price pursuant to Section 2.6, (ii) the waiver of any condition to the obligations of the Sellers to consummate the transactions contemplated hereby, and (iii) the defense and/or settlement of any claims for which any of the Sellers may be required to indemnify or reimburse the Buyer pursuant to the Escrow Agreement, the BC France Escrow Agreement or Article VIII below, the Sellers hereby designate Black Xxxxxxx as their representative (the "Sellers' Representative"). The Sellers hereby authorize the Sellers' Representative (i) to make all decisions relating to the determination of any PAGE adjustment to the Purchase Price pursuant to Section 2.6 and the delivery of all or any portion of the Escrow Fund with respect thereto, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Sellers to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which any of the Sellers may be required to indemnify the Buyer pursuant to Article VIII below, (iii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement or the BC France Escrow Agreement, (iv) to waive compliance with any of the terms of this Agreement, the Escrow Agreement or the BC France Escrow Agreement, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of any or all of the Sellers by the terms of this Agreement, the Escrow Agreement and/or the BC France Escrow Agreement. In the event that the Sellers' Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the remaining Sellers shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Sellers' Representative for all purposes of this Agreement and the documents delivered pursuant hereto; provided, however, that if the remaining Sellers shall fail to select another representative within ten business days following the event giving rise to such vacancy, the Buyer may select one of the remaining Sellers to fill such vacancy. All decisions and actions by the Sellers' Representative, including without limitation any agreement between the Sellers' Representative and the Buyer relating to the determination of any adjustment to the Purchase Price pursuant to Section 2.6 and the defense or settlement of any claims for which any of the Sellers may be required to indemnify the Buyer pursuant to Article VIII below, shall be binding upon all of the Sellers and no Seller shall have the right to object, dissent, protest or otherwise contest the same. By its execution of this Agreement, each Seller agrees that: the Buyer shall be able to rely conclusively on the instructions and decisions of the Sellers' Representative as to the determination of any adjustment to the Purchase Price pursuant to Section 2.6, the settlement of any claims for indemnification by the Buyer pursuant to Article VIII below or any other actions required or permitted to be taken by the Sellers' Representative hereunder or under the Escrow Agreement or the BC France Escrow Agreement, and no party hereunder shall have any cause of action against the Buyer to the extent the Buyer has relied upon the instructions or decisions of the Sellers' Representative; PAGE all actions, decisions and instructions of the Sellers' Representative shall be conclusive and binding upon all of the Sellers and no Seller shall have any cause of action against the Sellers' Representative for any action taken, decision made or instruction given by the Sellers' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Sellers' Representative; the provisions of this Section 2.11 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the transactions contemplated by this Agreement; remedies available at law for any breach of the provisions of this Section 2.11 are inadequate; therefore, the Buyer shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if the Buyer brings an action to enforce the provisions of this Section 2.11; and the provisions of this Section 2.11 shall be binding upon the representatives, successors and assigns of each Seller, and any references in this Agreement to a Seller or the Sellers shall mean and include the successors to the Seller's rights hereunder, whether pursuant to operation of law or otherwise. All fees and expenses incurred by the Sellers' Representative shall be paid by the Sellers.
Appears in 1 contract
Restricted Assets. The Prior to and after the Closing, the DataVoN Sellers and Buyer shall use their respective best efforts to obtain the Approval of any third party that is required in connection with the transfer of the Restricted Assets as listed on Schedule 1.1(c), and upon receipt of such Approval such Restricted Assets shall, without any further consideration or action of the parties, be deemed to be contributed, conveyed, granted, assigned and transferred to Buyer and shall thereafter constitute part of the Transferred Assets as if they had been so sold, conveyed, granted, assigned and transferred as of the Closing Date. If for any reason any Restricted Asset cannot be transferred to Buyer, as a result of the inability to obtain a required consent or otherwise, this Agreement shall constitute an equitable assignment by each DataVoN Seller to Buyer of all reasonable effortsof such DataVoN Seller's rights, benefits, title and interest in and to such Restricted Assets, and the Buyer and the DataVoN Sellers shall cooperate reasonably with use their respective best efforts to give Buyer benefits of such Restricted Asset as if it had been transferred to Buyer as of the SellersClosing Date, including, but not limited to, (i) to promptly obtain the consents and waivers necessary to convey or cause to be conveyed to the Buyer Buyer's receiving all economic benefits of the such Restricted Assets, and (ii) as of and subject to the occurrence of each Closing, to promptly convey or cause to be conveyed to the Buyer the Restricted Assets to be conveyed to the Buyer at such Closing for which the Sellers have received the necessary consents and waivers; provided, however, that the Sellers shall not amend or change any Restricted Asset without the prior written consent of the Buyer unless the Sellers reasonably deem it necessary to preserve the value of the Restricted Asset. The Sellers shall cooperate with the Buyer in making applications and filings or taking any other action necessary for the Buyer to obtain such franchises, licenses, permits or other instruments or agreements, if any, as are substantially equivalent to any Restricted Assets that are not assignable to Buyer as a matter of law. In no event shall the Buyer's cooperation hereunder require the Buyer to make any payments or incur any out-of-pocket expenses, except that the Buyer shall reimburse the Sellers on an equitable basis for any consideration paid, with the prior approval of the Buyer, to any person from whom a consent or waiver is requested. To the extent that the consents and waivers necessary to assign, transfer, sublease or sublicense any of the Restricted Assets are not obtained, the Sellers shall, during the period commencing on the U.S. Closing Date (or, in the case of Restricted Assets held by BC France, the France Closing Date) and continuing for the duration of each such Restricted Asset, use reasonable efforts to (i) provide to the Buyer the benefits of any such Restricted Asset not assigned, transferred or subleased due to the Sellers' failure or inability to obtain such consent or waiver, (ii) cooperate with the Buyer to reach a reasonable and lawful arrangement designed to provide such benefits to the Buyer during such period, and (iii) enforce at the request of the Buyer, or allow the Buyer to enforce (and, for such purpose, each Seller hereby constitutes and appoints the Buyer as its true and lawful attorney-in-fact), 's enforcing any rights of a DataVoN Seller arising with respect to any of the Sellers under any PAGE such Restricted Asset against the issuer thereof or the other party or parties thereto Assets (including including, without limitation, the right to elect to terminate such of the foregoing in accordance with the terms thereof upon the request advice of the Buyersuch DataVoN Seller); provided, however, that the reasonable costs and expenses of the Sellers incurred at the Buyer's request with respect to any of the actions contemplated under clause (iii) above shall be promptly paid or reimbursed by the Buyer to the Sellers. At the end of each such period, the Sellers shall have no further duties or obligations under this Section 2.10 Buyer's enforcing any rights arising with respect to such Restricted Asset and Assets as if they had been sold, conveyed, assigned or transferred to Buyer. Each DataVoN Seller hereby agrees that in the failure event of the transfer or inability to obtain any necessary consent or waiver with respect thereto shall not constitute a breach of this Agreement so long as the Sellers have carried out their obligations under this Section 2.10. To the extent that the Buyer is provided the benefits assignment of any Restricted Asset pursuant to clause (b) of this Section 2.10Asset, the Buyer transferee or assignee thereof shall perform for the benefit of the issuer thereofagree, as a condition to such transfer or the other party or parties theretoassignment, the obligations of the applicable Seller thereunder or in connection therewith, but only to the extent that (i) such action by the Buyer would not result in any default thereunder or in connection therewith and (ii) such obligation would have been an Assumed Liability but for the non-assignability or non-transferability thereof; provided, however, that if the Buyer shall fail to perform to the extent required herein, the Sellers shall thereafter cease to be obligated under this Section 2.10 to provide the Buyer with any benefits in respect of the Restricted Asset which is the subject of such failure to perform unless and until such situation is remedied or, at the sole option of the applicable Seller, the Buyer shall promptly pay or reimburse such Seller for all costs reasonably incurred by such Seller to remedy such failure to perform during such period of failure of performance. Sellers' Representative. In order to efficiently administer the transactions contemplated hereby, including (i) the determination of any adjustment to the Purchase Price pursuant to Section 2.6, (ii) the waiver of any condition to the obligations of the Sellers to consummate the transactions contemplated hereby, and (iii) the defense and/or settlement of any claims for which any of the Sellers may be required to indemnify or reimburse the Buyer pursuant to the Escrow Agreement, the BC France Escrow Agreement or Article VIII below, the Sellers hereby designate Black Xxxxxxx as their representative (the "Sellers' Representative"). The Sellers hereby authorize the Sellers' Representative (i) to make all decisions relating to the determination of any PAGE adjustment to the Purchase Price pursuant to Section 2.6 and the delivery of all or any portion of the Escrow Fund with respect thereto, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Sellers to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which any of the Sellers may be required to indemnify the Buyer pursuant to Article VIII below, (iii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement or the BC France Escrow Agreement, (iv) to waive compliance with any of the terms of this Agreement, the Escrow Agreement or the BC France Escrow Agreement, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of any or all of the Sellers bound by the terms of this Agreement, the Escrow Agreement and/or the BC France Escrow Agreement. In the event that the Sellers' Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the remaining Sellers shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Sellers' Representative for all purposes of this Agreement and the documents delivered pursuant hereto; provided, however, that if the remaining Sellers shall fail to select another representative within ten business days following the event giving rise to such vacancy, the Buyer may select one of the remaining Sellers to fill such vacancy. All decisions and actions by the Sellers' Representative, including without limitation any agreement between the Sellers' Representative and the Buyer relating to the determination of any adjustment to the Purchase Price pursuant to Section 2.6 and the defense or settlement of any claims for which any of the Sellers may be required to indemnify the Buyer pursuant to Article VIII below, shall be binding upon all of the Sellers and no Seller shall have the right to object, dissent, protest or otherwise contest the same. By its execution of this Agreement, each Seller agrees that: the Buyer shall be able to rely conclusively on the instructions and decisions of the Sellers' Representative as to the determination of any adjustment to the Purchase Price pursuant to Section 2.6, the settlement of any claims for indemnification by the Buyer pursuant to Article VIII below or any other actions required or permitted to be taken by the Sellers' Representative hereunder or under the Escrow Agreement or the BC France Escrow Agreement, and no party hereunder shall have any cause of action against the Buyer to the extent the Buyer has relied upon the instructions or decisions of the Sellers' Representative; PAGE all actions, decisions and instructions of the Sellers' Representative shall be conclusive and binding upon all of the Sellers and no Seller shall have any cause of action against the Sellers' Representative for any action taken, decision made or instruction given by the Sellers' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Sellers' Representative; the provisions of this Section 2.11 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the transactions contemplated by this Agreement; remedies available at law for any breach of the provisions of this Section 2.11 are inadequate; therefore, the Buyer shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if the Buyer brings an action to enforce the provisions of this Section 2.11; and the provisions of this Section 2.11 shall be binding upon the representatives, successors and assigns of each Seller, and any references in this Agreement to a Seller or the Sellers shall mean and include the successors to the Seller's rights hereunder, whether pursuant to operation of law or otherwise. All fees and expenses incurred by the Sellers' Representative shall be paid by the Sellers1.1(c).
Appears in 1 contract
Restricted Assets. Notwithstanding any other provision in this Agreement to the contrary, no asset, claim, right or benefit, the assignment or transfer of which is otherwise contemplated by this Agreement (or any Transaction Document), other than any Shared Contracts or any rights or benefits to be assigned or transferred to Purchaser thereunder, which are addressed in Section 6.9, shall be assigned or transferred if such assignment or transfer (or attempt to make such an assignment or transfer) without the consent or approval of a third party would constitute a breach, violation or other contravention of the rights of such third party (such assets, claims, rights or benefits being collectively referred to herein as “Restricted Assets”) until such consent or approval is obtained, at which time such Restricted Asset shall be automatically assigned or transferred. The Sellers Seller shall use be solely responsible for and shall pay any and all reasonable effortscosts and fees associated with obtaining such consent or approval. If any such consent or approval is not obtained prior to the Closing, then until the earliest date when (a) such consent or approval is obtained, (b) the earlier termination or expiration of the then-current term of such Restricted Asset and (c) [***] months following the Buyer shall cooperate reasonably with the Sellers, Closing Date: (i) the Seller shall, beginning on the Closing Date (x) upon request of Purchaser, continue to promptly use its commercially reasonable efforts to coordinate with Purchaser in attempting to obtain any such consent or approval and (y) endeavor to provide Purchaser with the consents and waivers necessary benefits under each Restricted Asset as if such Restricted Asset had been assigned to convey Purchaser (including by means of any licensing, operating, subcontracting, sublicensing or cause to be conveyed to subleasing arrangement), if the Buyer all of same is permitted under the ACTIVE/123404471.12 applicable Restricted Assets, Asset and (ii) as for the avoidance of doubt, Purchaser shall pay, perform or otherwise discharge all of the covenants and obligations of the Seller pursuant to each such Restricted Asset (in accordance with the respective terms and subject to the occurrence of each Closing, to promptly convey or cause to be conveyed to the Buyer the Restricted Assets to be conveyed to the Buyer at such Closing for which the Sellers have received the necessary consents and waivers; provided, however, that the Sellers shall not amend or change any Restricted Asset without the prior written consent of the Buyer unless the Sellers reasonably deem it necessary to preserve the value of the Restricted Asset. The Sellers shall cooperate with the Buyer in making applications and filings or taking any other action necessary for the Buyer to obtain such franchises, licenses, permits or other instruments or agreements, if any, as are substantially equivalent to any Restricted Assets that are not assignable to Buyer as a matter of law. In no event shall the Buyer's cooperation hereunder require the Buyer to make any payments or incur any out-of-pocket expenses, except that the Buyer shall reimburse the Sellers on an equitable basis for any consideration paid, with the prior approval of the Buyer, to any person from whom a consent or waiver is requested. To the extent that the consents and waivers necessary to assign, transfer, sublease or sublicense any of the Restricted Assets are not obtained, the Sellers shall, during the period commencing on the U.S. Closing Date (or, in the case of Restricted Assets held by BC France, the France Closing Date) and continuing for the duration of each such Restricted Asset, use reasonable efforts to (i) provide to the Buyer the benefits of any such Restricted Asset not assigned, transferred or subleased due to the Sellers' failure or inability to obtain such consent or waiver, (ii) cooperate with the Buyer to reach a reasonable and lawful arrangement designed to provide such benefits to the Buyer during such period, and (iii) enforce at the request of the Buyer, or allow the Buyer to enforce (and, for such purpose, each Seller hereby constitutes and appoints the Buyer as its true and lawful attorney-in-fact), any rights of any of the Sellers under any PAGE such Restricted 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 the Buyerrespective conditions thereof); provided, however, that Purchaser shall use its commercially reasonable efforts to assist and cooperate with the reasonable costs and expenses of the Sellers incurred at the Buyer's request with respect to any of the actions contemplated under clause (iii) above shall be promptly paid or reimbursed by the Buyer to the Sellers. At the end of each such period, the Sellers shall have no further duties or obligations under this Section 2.10 with respect to such Restricted Asset and the failure or inability to obtain any necessary consent or waiver with respect thereto shall not constitute a breach of this Agreement so long as the Sellers have carried out their obligations under this Section 2.10. To the extent that the Buyer is provided the benefits of any Restricted Asset pursuant to clause (b) of this Section 2.10, the Buyer shall perform for the benefit of the issuer thereof, or the other party or parties thereto, the obligations of the applicable Seller thereunder or in connection therewith; and, but only to the extent that (i) such action by the Buyer would not result in any default thereunder or in connection therewith and (ii) such obligation would have been an Assumed Liability but for the non-assignability or non-transferability thereof; provided, howeverfurther, that if the Buyer none of Seller or any its Affiliates shall fail to perform to the extent required herein, the Sellers shall thereafter cease to be obligated under this Section 2.10 to provide the Buyer with any benefits in respect of the Restricted Asset which is the subject of such failure to perform unless and until such situation is remedied or, at the sole option of the applicable Seller, the Buyer shall promptly pay or reimburse such Seller for all costs reasonably incurred by such Seller to remedy such failure to perform during such period of failure of performance. Sellers' Representative. In order to efficiently administer the transactions contemplated hereby, including (i) the determination of any adjustment to the Purchase Price pursuant to Section 2.6, (ii) the waiver of any condition to the obligations of the Sellers to consummate the transactions contemplated hereby, and (iii) the defense and/or settlement of any claims for which any of the Sellers may be required to indemnify pay money to any Third Party (unless such amounts are agreed to be reimbursed by Purchaser), commence any litigation or reimburse the Buyer pursuant to the Escrow Agreement, the BC France Escrow Agreement offer or Article VIII below, the Sellers hereby designate Black Xxxxxxx as their representative grant any material accommodation (the "Sellers' Representative"). The Sellers hereby authorize the Sellers' Representative (ifinancial or otherwise) to make all decisions relating to the determination of any PAGE adjustment to the Purchase Price pursuant to Section 2.6 and the delivery of all or any portion of the Escrow Fund with respect thereto, (ii) to take all action necessary Third Party in connection with the waiver of any condition to the obligations of the Sellers to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which any of the Sellers may be required to indemnify the Buyer pursuant to Article VIII below, (iii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement or the BC France Escrow Agreement, (iv) to waive compliance with any of the terms of this Agreement, the Escrow Agreement or the BC France Escrow Agreement, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of any or all of the Sellers by the terms of this Agreement, the Escrow Agreement and/or the BC France Escrow Agreement. In the event that the Sellers' Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the remaining Sellers shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Sellers' Representative for all purposes of this Agreement and the documents delivered pursuant hereto; provided, however, that if the remaining Sellers shall fail to select another representative within ten business days following the event giving rise to such vacancy, the Buyer may select one of the remaining Sellers to fill such vacancy. All decisions and actions by the Sellers' Representative, including without limitation any agreement between the Sellers' Representative and the Buyer relating to the determination of any adjustment to the Purchase Price pursuant to Section 2.6 and the defense or settlement of any claims for which any of the Sellers may be required to indemnify the Buyer pursuant to Article VIII below, shall be binding upon all of the Sellers and no Seller shall have the right to object, dissent, protest or otherwise contest the same. By its execution of this Agreement, each Seller agrees that: the Buyer shall be able to rely conclusively on the instructions and decisions of the Sellers' Representative as to the determination of any adjustment to the Purchase Price pursuant to Section 2.6, the settlement of any claims for indemnification by the Buyer pursuant to Article VIII below or any other actions required or permitted to be taken by the Sellers' Representative hereunder or under the Escrow Agreement or the BC France Escrow Agreement, and no party hereunder shall have any cause of action against the Buyer to the extent the Buyer has relied upon the instructions or decisions of the Sellers' Representative; PAGE all actions, decisions and instructions of the Sellers' Representative shall be conclusive and binding upon all of the Sellers and no Seller shall have any cause of action against the Sellers' Representative for any action taken, decision made or instruction given by the Sellers' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Sellers' Representative; the provisions of this Section 2.11 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the transactions contemplated by this Agreement; remedies available at law for any breach of the provisions of this Section 2.11 are inadequate; therefore, the Buyer shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if the Buyer brings an action to enforce the provisions of this Section 2.11; and the provisions of this Section 2.11 shall be binding upon the representatives, successors and assigns of each Seller, and any references in this Agreement to a Seller or the Sellers shall mean and include the successors to the Seller's rights hereunder, whether pursuant to operation of law or otherwise. All fees and expenses incurred by the Sellers' Representative shall be paid by the Sellersefforts.
Appears in 1 contract
Restricted Assets. The Sellers Notwithstanding any other provision in this Agreement to the contrary, this Agreement shall use all reasonable effortsnot constitute an agreement to assign or transfer any interest in any asset, claim, right or benefit the assignment or transfer of which is otherwise contemplated by this Agreement if such assignment or transfer (or attempt to make such an assignment or transfer) without the consent or approval of a third party would constitute a breach or other contravention of the rights of such third party, or affect adversely the rights of any Party or their Affiliates thereunder (such assets being collectively referred to herein as “Restricted Assets”); and any assignment or transfer of a Restricted Asset shall be made subject to such consent or approval being obtained. If any such consent or approval is not obtained prior to the Buyer shall cooperate reasonably with the SellersClosing, (i) Parent shall continue, upon request of Buyer, to promptly use its reasonable best efforts to cooperate with Buyer in attempting to obtain the consents and waivers necessary to convey any such consent or cause to be conveyed to the Buyer all of the Restricted Assets, approval and (ii) as of and subject to the occurrence of each Closingextent practicable, to promptly convey or cause to be conveyed to the Buyer and Parent agree to negotiate in good faith with respect to alternative arrangements (such as a license, sublease or operating agreement) until such time as such consent or approval has been obtained which result in Buyer or its Affiliates receiving all the Restricted Assets benefits and bearing all the costs, liabilities and burdens with respect to be conveyed to the Buyer at any such Closing for which the Sellers have received the necessary consents and waivers; provided, however, that the Sellers shall not amend or change any Restricted Asset without the prior written consent of the Buyer unless the Sellers reasonably deem it necessary to preserve the value of the Restricted Asset. The Sellers ; provided that Buyer shall cooperate with pay or satisfy all the Buyer in making applications reasonable and filings or taking any other action necessary for the Buyer to obtain such franchises, licenses, permits or other instruments or agreements, if any, as are substantially equivalent to any Restricted Assets that are not assignable to Buyer as a matter of law. In no event shall the Buyer's cooperation hereunder require the Buyer to make any payments or incur any documented out-of-pocket costs, expenses, except obligations and liabilities incurred by Parent or its Affiliates in connection with any such alternative arrangements; provided further that the Parent shall have no obligation to pay money or make any concessions to obtain consents. Nothing in this Section 2(d) shall be deemed a waiver by Buyer shall reimburse the Sellers on to receive an equitable basis for any consideration paid, with the prior approval effective assignment of the Buyer, to Acquired Assets upon the receipt of any person from whom a such consent or waiver is requested. To the extent that the consents and waivers necessary to assign, transfer, sublease or sublicense approval nor shall any of the Restricted Assets are not obtained, the Sellers shall, during the period commencing on the U.S. Closing Date (or, in the case of Restricted Assets held by BC France, the France Closing Date) and continuing for the duration of each such Restricted Asset, use reasonable efforts to (i) provide to the Buyer the benefits of any such Restricted Asset not assigned, transferred or subleased due to the Sellers' failure or inability to obtain such consent or waiver, (ii) cooperate with the Buyer to reach a reasonable and lawful arrangement designed to provide such benefits to the Buyer during such period, and (iii) enforce at the request of the Buyer, or allow the Buyer to enforce (and, for such purpose, each Seller hereby constitutes and appoints the Buyer as its true and lawful attorney-in-fact), any rights of any of the Sellers under any PAGE such Restricted 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 the Buyer); provided, however, that the reasonable costs and expenses of the Sellers incurred at the Buyer's request with respect to any of the actions contemplated under clause (iii) above shall be promptly paid or reimbursed by the Buyer to the Sellers. At the end of each such period, the Sellers shall have no further duties or obligations under this Section 2.10 with respect to such Restricted Asset and the failure or inability to obtain any necessary consent or waiver with respect thereto shall not constitute a breach of this Agreement so long as the Sellers have carried out their obligations under this Section 2.10. To the extent that the Buyer is provided the benefits of any Restricted Asset pursuant to clause (b) of this Section 2.10, the Buyer shall perform for the benefit of the issuer thereof, or the other party or parties thereto, the obligations of the applicable Seller thereunder or in connection therewith, but only to the extent that (i) such action by the Buyer would not result in any default thereunder or in connection therewith and (ii) such obligation would have been an Assumed Liability but for the non-assignability or non-transferability thereof; provided, however, that if the Buyer shall fail to perform to the extent required herein, the Sellers shall thereafter cease to be obligated under this Section 2.10 to provide the Buyer with any benefits in respect of the Restricted Asset which is the subject of such failure to perform unless and until such situation is remedied or, at the sole option of the applicable Seller, the Buyer shall promptly pay or reimburse such Seller for all costs reasonably incurred by such Seller to remedy such failure to perform during such period of failure of performance. Sellers' Representative. In order to efficiently administer the transactions contemplated hereby, including (i) the determination of any adjustment to the Purchase Price pursuant to Section 2.6, (ii) the waiver of any condition to the obligations of the Sellers to consummate the transactions contemplated hereby, and (iii) the defense and/or settlement of any claims for which any of the Sellers may be required to indemnify or reimburse the Buyer pursuant to the Escrow Agreement, the BC France Escrow Agreement or Article VIII below, the Sellers hereby designate Black Xxxxxxx as their representative (the "Sellers' Representative"). The Sellers hereby authorize the Sellers' Representative (i) to make all decisions relating to the determination of any PAGE adjustment to the Purchase Price pursuant to Section 2.6 and the delivery of all or any portion of the Escrow Fund with respect thereto, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Sellers to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which any of the Sellers may be required to indemnify the Buyer pursuant to Article VIII below, (iii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement or the BC France Escrow Agreement, (iv) to waive compliance with any of the terms of this Agreement, the Escrow Agreement or the BC France Escrow Agreement, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of any or all of the Sellers by the terms of this Agreement, the Escrow Agreement and/or the BC France Escrow Agreement. In the event that the Sellers' Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the remaining Sellers shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Sellers' Representative Excluded Assets for all purposes of this Agreement and the documents delivered pursuant hereto; provided, however, that if the remaining Sellers shall fail to select another representative within ten business days following the event giving rise to such vacancy, the Buyer may select one of the remaining Sellers to fill such vacancy. All decisions and actions by the Sellers' Representative, including without limitation any agreement between the Sellers' Representative and the Buyer relating to the determination of any adjustment to the Purchase Price pursuant to Section 2.6 and the defense or settlement of any claims for which any of the Sellers may be required to indemnify the Buyer pursuant to Article VIII below, shall be binding upon all of the Sellers and no Seller shall have the right to object, dissent, protest or otherwise contest the same. By its execution of this Agreement, each Seller agrees that: the Buyer shall be able to rely conclusively on the instructions and decisions of the Sellers' Representative as to the determination of any adjustment to the Purchase Price pursuant to Section 2.6, the settlement of any claims for indemnification by the Buyer pursuant to Article VIII below or any other actions required or permitted to be taken by the Sellers' Representative hereunder or under the Escrow Agreement or the BC France Escrow Agreement, and no party hereunder shall have any cause of action against the Buyer to the extent the Buyer has relied upon the instructions or decisions of the Sellers' Representative; PAGE all actions, decisions and instructions of the Sellers' Representative shall be conclusive and binding upon all of the Sellers and no Seller shall have any cause of action against the Sellers' Representative for any action taken, decision made or instruction given by the Sellers' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Sellers' Representative; the provisions of this Section 2.11 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the transactions contemplated by this Agreement; remedies available at law for any breach of the provisions of this Section 2.11 are inadequate; therefore, the Buyer shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if the Buyer brings an action to enforce the provisions of this Section 2.11; and the provisions of this Section 2.11 shall be binding upon the representatives, successors and assigns of each Seller, and any references in this Agreement to a Seller or the Sellers shall mean and include the successors to the Seller's rights purposes hereunder, whether pursuant to operation of law or otherwise. All fees and expenses incurred by the Sellers' Representative shall be paid by the Sellers.
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