Third Party Consents. To the extent that any Assumed Contract, Intellectual Property or Registration is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilled.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Biotech Spinco, Inc.), Asset Purchase Agreement (PDL Biopharma, Inc.), Asset Purchase Agreement (Facet Biotech Corp)
Third Party Consents. (a) To the extent that any Assumed Contractconsent needed to assign to the Purchaser any Assigned Contract has not been obtained on or prior to the First Closing Date or the Second Closing Date, Intellectual Property or Registration is not assignable without the consent of another partyas applicable, this Agreement and any document delivered pursuant hereto shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof of such Assigned Contract or would give rise to a default thereundervalid right of termination thereof. Seller If any such third-party consent shall not be obtained on or prior to the First Closing Date or the Second Closing Date, as applicable, then the parties shall cooperate in entering into alternative arrangements at the First Closing Date or the Second Closing Date, as applicable, pursuant to which the Purchaser would obtain substantially all of the benefits and Buyer become responsible for substantially all of the obligations under such Assigned Contract.
(b) The Purchaser and the Sellers shall each use commercially reasonable efforts (which for purposes of this Section 6.15 shall not require any payment of money by the Sellers or the Purchaser, except as agreed between them in writing) to obtain the consent of [****]*, seek any required consents to the extent required, for the assignment of any Assumed the Assigned Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer have not been obtained as of the Assumed ContractsFirst Closing Date or the Second Closing Date, the Intellectual Propertyas applicable, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 promptly upon receipt of the Disclosure Schedule. All such consents shall effect such assignments.
(c) The parties shall cooperate to (i) identify Contracts of May Co. and its Affiliates that should be assigned to the Purchaser in writing connection with the Third Assignment and executed counterparts thereof Assumption and shall mutually agree on the Contracts that shall be delivered promptly so assigned and (ii) identify such third party consents the parties mutually agree are necessary in connection with the Third Assignment and Assumption. The Sellers shall update their Schedules relating to Buyer. If Sections 5.1(c) and 5.1(d) and Schedules 1.1(a) and 7.1 prior to the Third Closing to reflect the existence of any such consent Contracts or consents and Sections 6.15(a) and 6.15(b) shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed apply to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested such Assigned Contracts mutatis mutandis with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledThird Closing Date.
Appears in 2 contracts
Samples: Purchase, Sale and Servicing Transfer Agreement (Macy's, Inc.), Purchase, Sale and Servicing Transfer Agreement (Federated Department Stores Inc /De/)
Third Party Consents. To the extent that Seller’s rights under any Assumed ContractContract or Permit constituting a Purchased Asset, Intellectual Property or Registration is any other Purchased Asset, may not assignable be assigned to Buyer without the consent of another partyPerson, which consent has not been obtained by the Closing Date (a “Non-Assigned Contract”), this Agreement shall not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller be unlawful, and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*Seller, to the extent requiredat its expense, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable commercial efforts to obtain any such required consent(s) as promptly as possible following Closing. Following the Closing, until such time as the requisite third party consent is obtained:
(a) Seller shall retain all rights not assigned at the Closing to Buyer in such Non-Assigned Contract in trust for and on behalf of Buyer as directed by Buyer, and Buyer shall perform the obligations of Seller under such Non-Assigned Contract;
(b) Seller shall represent Buyer in all consents necessary for matters arising under such Non-Assigned Contract with the effective assignment third party to such Non-Assigned Contract; provided, that Seller shall act in such capacity in the best interests of Buyer and assumption shall not agree to amend, supplement, extend or terminate such Non-Assigned Contract or grant any waiver under such Non-Assigned Contract without Buyer’s prior written consent;
(c) all payments received by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All Seller pursuant to such consents Non-Assigned Contract shall be in writing received and executed counterparts thereof held by Seller as a trustee for Buyer and Seller shall be delivered promptly remit or shall cause the prompt remittance of such payments to Buyer. If any such consent shall not be obtained, ; and
(d) Seller shall cooperate with Buyer to enforce such Non-Assigned Contract, including serving as, or joining as, a plaintiff in any reasonable arrangement designed legal proceeding; provided, however, that Seller shall not institute or threaten the institution of any legal proceeding to provide for enforce a Non-Assigned Contract without Buyer’s prior written consent. Any enforcement action consented to in writing by Buyer the benefits intended to shall be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement conducted at the Buyer’s sole cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledexpense.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Smart Sand, Inc.), Asset Purchase Agreement (Smart Sand, Inc.)
Third Party Consents. To (a) Seller shall give all notices to Governmental Entities and any other Person required to be given by it under the extent that Material Acquired Contracts or otherwise in connection with the transactions contemplated hereby. In order to facilitate the orderly assignment and transfer of all rights and privileges necessary to own and operate the Business and to facilitate the securing of all Consents by any Assumed ContractGovernmental Entity, Intellectual Property or Registration is not assignable without in each case other than with respect to the consent New Franchise, Seller shall proceed after the execution of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if to prepare, file and prosecute each request and application therefor together with such assignment or attempted assignment would constitute a breach thereof or a default thereunderinformation as may be necessary and appropriate to effect such approvals. Seller shall on a timely basis cooperate and work with Buyer to obtain all other Consents from the appropriate Third Party, including all Required Consents. With respect to the Professional Service Agreement between Seller and DST Innovis, Inc. dated December 1, 2003, if Seller is unable to obtain a consent to the assignment of such agreement to Buyer at the Closing, Seller will offer Buyer an alternative arrangement for the continuation of billing services for a reasonable period of time following the Closing, which arrangement may be through a subcontracting relationship with Seller at Seller’s cost or through a direct relationship with Seller at Seller’s cost or with a Third Party. Seller shall each consult with Buyer and provide Buyer and its agents with the opportunity for review and comment with respect to all notices, filings and submissions made in connection with securing any Consents from Governmental Entities or other Persons. Seller shall use commercially reasonable efforts to obtain obtain, and will cooperate and negotiate with Buyer in good faith in an effort to obtain, the consent Assignment of [****]*, to Manhole Agreement and the extent required, for the assignment Assignment of any Assumed Contracts to which it is a party. Parking Lot Lease.
(b) Seller shall use its commercially reasonable efforts to obtain all Consents as expeditiously as possible and, to the extent not obtained by the Closing, Seller shall continue to use its commercially reasonable efforts to obtain such Consents for six months after the Closing. During this six-month time period and pending or in the absence of any such Consent, the Parties shall cooperate with each other in any reasonable and all consents necessary for lawful arrangements to provide to Buyer the effective assignment to benefits and assumption by Buyer liabilities of use of the Assumed ContractsAcquired Contract or Permit to which such Consent relates. Without Buyer’s prior written consent, no such Consent shall (at such time or in the Intellectual Propertyfuture) impose any additional adverse restrictions or obligations on Buyer, other than as described in Section 8.1 or include any adverse change to the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 terms or benefits of the Disclosure Scheduleunderlying instrument other than immaterial restrictions, obligations or changes. All If, notwithstanding its commercially reasonable efforts, Seller is unable to obtain such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent Consents, Seller shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. liable to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out breach of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, covenants set forth in this Section 7.6 (but Buyer shall have no obligation pursuant to effect the Closing unless the condition set forth in Section 2.3 10.3 hereof shall have been satisfied or otherwise waived). Notwithstanding anything to the contrary contained in this Agreement, nothing herein shall require Seller to pay any funds (other than its usual or customary attorneys fees, consulting fees, filing fees or other normal costs of doing business) or to give any other consideration in order to obtain any Consent, provided, however, that Seller and Buyer shall equally share all reasonable or customary fees imposed by any Governmental Entity incurred in connection with obtaining the Consents, other than the fees imposed by the Franchising Authority in connection with obtaining the New Franchise.
(c) Seller shall use commercially reasonable efforts to cooperate fully with Buyer in Buyer’s efforts to obtain the New Franchise and will help to arrange and facilitate Buyer’s negotiations with the Franchising Authority or any other Governmental Entity and other Third Parties with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledNew Franchise.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Knology Inc)
Third Party Consents. To (a) The Sellers shall use their commercially reasonable efforts to obtain, at their sole cost and expense, prior to the extent that Closing all Consents and estoppels which, in the reasonable judgment of Purchaser, are necessary or appropriate for the transfer or assignment of each of the Purchased Assets and the Business to Purchaser and the consummation of the transactions contemplated hereby as listed on Schedule 6.3. All such Consents and estoppels shall be in writing and in form and substance reasonably satisfactory to Purchaser, and executed counterparts thereof will be delivered to Purchaser promptly after receipt thereof but in no event later than the Closing. In any Assumed Contractcase where a necessary Consent or estoppel has not been obtained at or prior to the Closing, Intellectual Property or Registration is not assignable without the consent Sellers shall assist Purchaser after Closing, at Purchaser's request and at the sole expense of another partythe Sellers, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use using all commercially reasonable efforts to obtain such Consent or estoppel. If any such Consent shall not be obtained using commercially reasonable efforts or if any attempted assignment would be ineffective or would impair Purchaser's rights under the consent Purchased Asset in question so that Purchaser would not in effect acquire the benefit of [****]*all such rights (and any related Liabilities), the Sellers, to the maximum extent requiredpermitted by the specific Purchased Asset to the extent commercially reasonable, for shall enter into a sublicense, sublease, subcontract or similar arrangement with Purchaser, solely to the assignment extent reasonably practicable with respect to such Purchased Assets (and any related Liabilities). In any case where the Sellers are unable or it is not commercially reasonable to enter into such sublicense, sublease, subcontract or similar arrangement, the Sellers shall assist Purchaser after the Closing, at Purchaser's request and at the sole expense of the Sellers, using all commercially reasonable efforts, to obtain from the Third Party such agreement or Contract, such Third Party's cooperation to enter into an arrangement whereby the benefits and related Liabilities of any Assumed Purchased Assets would be obtained by Purchaser. The obligation of the Sellers hereunder shall not be in limitation of Purchaser's right to terminate this Agreement in accordance with the terms hereof, at or prior to the Closing Date.
(b) The Sellers shall use their commercially reasonable efforts to obtain, at their sole cost and expense, prior to the Closing a written agreement with ACS Government Systems, Inc. ("ACS"), documenting the relationship between ACS and the Company in respect of those Contracts listed on Schedule 5.9(b) hereto. The Contracts listed on Schedule 5.9(b) constitute all of the Contracts of the Company under which the Company provides services, licenses its products or has any Liability or receives any benefit to which it ACS is a party. Seller Such written agreement shall use its be in writing and in form and substance reasonably satisfactory to Purchaser, and executed counterparts thereof will be delivered to Purchaser promptly after receipt thereof. Purchaser acknowledges that ACS is likely to require, as a condition to entering into such written agreement, that the Company enter into a written agreement documenting the relationship between ACS and the Company with respect to any contracts that involve ACS software or services as to which the Company (and not ACS) is the contracting party with the customer. Furthermore, Purchaser agrees that it will be responsible for any costs and expenses incurred by Purchaser in connection with the actions contemplated by this Section 5.9(b). If the agreement discussed above has not been obtained from ACS at or prior to the Closing, the Sellers shall assist Purchaser after Closing, at Purchaser's request and at the sole expense of the Sellers, using all commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledwritten agreement.
Appears in 2 contracts
Samples: Purchase Agreement (Systems & Computer Technology Corp), Purchase Agreement (Indus International Inc)
Third Party Consents. To the extent that any Assumed ContractSeller’s rights under any Contract or Permit constituting a Purchased Asset, Intellectual Property or Registration is any other Purchased Asset, may not assignable be assigned to Buyers without the consent of another partyPerson which has not been obtained, this Agreement shall not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller be unlawful, and Buyer the parties hereto shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller cooperate and shall use its their commercially reasonable efforts to obtain any such required consent(s) promptly following signing hereof. If any fees are required to obtain the consent of a third party to the proposed assignment of a Contract or Permit, Buyers and all consents necessary Sellers will discuss in good faith the allocation of such fees; provided, that, absent a separate written agreement by Sellers to the contrary, no Seller shall under any circumstances be required to make any such payments required or sought by any Person for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All any such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyerconsent. If any such consent shall not be obtainedobtained or if any attempted assignment would be ineffective or would materially impair the applicable Buyers’ rights under the Purchased Asset in question so that such Buyer would not in effect acquire the benefit of all such rights, the applicable Seller shall act after the Closing as such Buyer’s agent in order to obtain for it the benefits thereunder and shall cooperate with such Buyer in any other commercially reasonable arrangement designed to provide for Buyer such benefits to such Buyer; provided, however, that in the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with event the Sec. Confidential treatment has been requested consent of Damoza is not obtained with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out assignment of the breach Plant B Lease prior to or cancellation thereof by on the Closing, Prestolite shall remain the tenant thereunder until such consent is obtained and Mexico Buyer will reimburse Prestolite for any applicable rent or other party or otherwise. If and to actual documented costs (consistent with the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The remainder of the provisions of this Section 2.7 shall not affect 2.09 set forth below). In any such arrangement, the right applicable Buyer will, subject to the terms of Buyer not any other Transaction Document (including the Transition Services Agreement), (i) bear the sole responsibility for completion of the work or provision of goods and services, (ii) bear all Taxes (except for Sellers’ income Taxes and Sellers’ property Taxes) with respect thereto or arising therefrom, (iii) be solely entitled to consummate all benefits thereof, economic or otherwise, (iv) be solely responsible for any warranty or breach thereof, any repurchase, indemnity and service obligations thereof and any damages related to termination of such Assigned Contract or other Purchased Asset, and (v) promptly reimburse the transactions contemplated reasonable costs and expenses of the applicable Seller and its Affiliates related thereto, pre-approved in writing by Buyers prior to Sellers incurring such costs or expenses to the extent reasonably practicable. If and when such consents or approvals are obtained or such other required actions have been taken, the transfer of such Assigned Contract or other Purchased Asset will be effected in accordance with the terms of this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledAgreement.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (General Cable Corp /De/), Stock and Asset Purchase Agreement (Standard Motor Products Inc)
Third Party Consents. To (a) Buyer will pursue the extent grant of a new franchise from the City of Cerritos, California with such new franchise to have a [*] term and to provide Buyer with substantially the same rights and privileges that Seller enjoys under the Franchise (the “New Franchise”). [*]. If the Franchising Authority determines not to issue the New Franchise, and Buyer has failed to provide or has withdrawn the New Franchise Commitments, then Seller, upon written notice to Buyer, shall be entitled to terminate this Agreement, whereupon Seller immediately shall be paid the Deposit in full. Buyer and Seller agree that the payment of the Deposit, as contemplated in the preceding sentence, constitutes liquidated damages and not a penalty, and has been arrived at between them as a reasonable estimate of actual damages in light of the difficulty of determining with certainty the actual damages that Seller would suffer by reason of Buyer’s failure to make its withdrawal of the New Franchise Commitments. If Buyer has made and maintained the New Franchise Commitments, but the Franchising Authority nonetheless does not grant the New Franchise for any Assumed Contractreason or no reason whatsoever, Intellectual Property or Registration is including a determination that Buyer does not assignable without satisfy the consent of another partyStandards and Assurances, this Agreement then Seller shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunderbe entitled to the payment of the Deposit pursuant to this Section 8.1(a). Seller and Buyer shall each use commercially reasonable efforts to obtain satisfy the consent concerns, if any, of [****]*, the Franchising Authority or other Governmental Entity or other Third Parties as to Buyer’s ability to perform pursuant to the extent requiredNew Franchise and the Acquired Contracts, excluding any concerns relating to Seller’s operation of the System. If, notwithstanding their commercially reasonable efforts, Buyer and Seller are unable to obtain Consents, Buyer shall not be liable to Seller for breach of the assignment of covenants set forth in this Section 8.1 (but Seller shall have no obligation to effect the Closing unless the condition set forth in Section 9.3 hereof shall have been satisfied or waived).
(b) Buyer shall use commercially reasonable efforts to cooperate fully with Seller in obtaining any Assumed Contracts to which it necessary Consents that Seller is a partyresponsible for obtaining hereunder. Seller Buyer shall use its commercially reasonable efforts to obtain attend such meetings as Seller may reasonably request in connection with obtaining the Consents, and Buyer shall provide such financial information as third parties may reasonably request in connection with the review of the requested Consent, but Buyer acknowledges that it may need to enter into direct agreements with other Governmental Entities or other third parties. Buyer shall bear any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested costs arising with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out performance of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, New Franchise.
(c) Buyer shall have no obligation pursuant use commercially reasonable efforts to Section 2.3 or otherwise obtain, and will cooperate and negotiate with respect Seller in good faith in an effort to any such Assumed Contractobtain, Intellectual Property or Registration. The provisions the Assignment of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledManhole Access Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Knology Inc)
Third Party Consents. To (a) Seller shall use its reasonable best efforts to obtain from lessors or sublessors under Real Property Leases any consents to the extent that assignment of such leases required under the terms thereof in connection with the consummation of the transactions contemplated hereby and the removal of Seller's signage and the installation of Purchaser's signage (the "LANDLORD CONSENTS"). If any Assumed Contract, Intellectual Property or Registration is not assignable without the consent of another party, this Agreement such Landlord Consent shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. have been obtained prior to the Closing then, notwithstanding any other provision hereof, the applicable Real Property Lease shall not be assigned to Purchaser at Closing (and the Purchase Price shall not include the Net Book Value thereof) but all other Transferred Assets and Transferred Liabilities associated with the relevant Leased Premises shall nevertheless be transferred to Purchaser at the Closing and the parties shall negotiate in good faith and Seller and Buyer Purchaser shall each use reasonable best efforts to make alternative arrangements reasonably satisfactory to Purchaser that provide Purchaser, to the maximum extent reasonably possible, the benefits and burdens of the underlying Leased Premises in a manner that does not violate the applicable Real Property Lease (for the same cost as would have applied if the relevant consent had been obtained). If any alternative arrangement is implemented between Seller and Purchaser at or prior to the Closing, the parties shall continue after the Closing to exercise commercially reasonable efforts to obtain the consent of [****]*, related consents that could not be obtained prior to the extent requiredClosing, and if such consent is obtained, Seller shall assign to Purchaser the applicable Real Property Lease pursuant to the terms of this Agreement applicable to leases assigned at the Closing and the parties shall restructure the applicable alternative arrangement and Purchaser shall pay Seller any consideration for the lease assignment that Seller would have received had the lease been assigned at the Closing.
(b) Seller shall use its reasonable best efforts to obtain from the parties to any material contract, agreement, license or Personal Property Lease to be transferred hereunder, any consents to the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any such material contracts, agreements, licenses and all consents necessary for leases required under the effective assignment to and assumption by Buyer terms of the Assumed Contractssuch contract, the Intellectual Propertyagreement, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be license or lease in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately connection with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account consummation of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledhereby.
Appears in 2 contracts
Samples: Purchase and Assumption Agreement (Bay View Capital Corp), Purchase and Assumption Agreement (Bay View Capital Corp)
Third Party Consents. To the extent that any Assumed Contract, Intellectual Property or Registration is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. (a) Seller shall use its commercially reasonable efforts to obtain any Contract, license (including any modification to, extension or renewal of, or replacement for an existing license), or consent or waiver under its own Contracts entered into with any Third Party and all consents necessary for the effective assignment that pertain to and assumption by Buyer any software, equipment, systems or other materials or associated services required in connection with performance or receipt of the Assumed ContractsServices under this Agreement (each, a “Required Consent”); provided, that if, in order to obtain any Required Consent, costs or expenses must be incurred, the Intellectual Propertycosts and expenses incurred to obtain Required Consents required by Seller in connection with its performance of the Services shall be solely borne by Purchaser and constitute Allowable Expenses under the Purchase Agreement. Purchaser shall use its commercially reasonable efforts to cooperate with the Seller in obtaining such Required Consents from Third Parties.
(b) If, despite using commercially reasonable efforts, Seller is unable to obtain a Required Consent hereunder, Purchaser and Seller shall work together in good faith to develop a mutually acceptable alternative arrangement that is sufficient to enable Seller to provide, and Purchaser to receive, the Registrations Services without such Required Consent. Purchaser shall bear the costs and the Assumed Liabilitiesexpenses of such alternative arrangement incurred by either Party, including the Third Party Consents set forth on Attachment 4.2(a) hereto as applicable, which costs and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents expenses shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer constitute Allowable Expenses under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and Purchase Agreement to the extent that the costs of the Service to which such alternative arrangement relates are included in Allowable Expenses pursuant to the Purchase Agreement. If such alternative arrangement cannot be madeagreed upon by Purchaser and Seller or is required for a period longer than thirty (30) days following the Effective Date, Buyer either Party may request that the affected Services be terminated, in which case the Services Fees and Out-of-Pocket Costs for such Services, if any, shall be equitably adjusted to account for such terminated Services, reflecting the actual FTE Costs and Out-of-Pocket Costs incurred by Seller. Seller shall have no obligation pursuant (and no Liability for failing) to provide (or cause the provision of) a Service for which a Required Consent has not been obtained, unless and until such Required Consent is obtained, so long as Seller has complied with this Section 2.3 1.07.
(c) Purchaser acknowledges and agrees that any Services provided through or otherwise involving Third Parties or using any Intellectual Property owned by a Third Party or systems or facilities are subject to the terms and conditions of any applicable Contracts between Seller or its Affiliates or Subcontractors (as applicable) and such Third Parties, as well as compliance with applicable Law. Purchaser shall comply, and shall cause its Affiliates to comply, with the terms and conditions of any such applicable Contracts notified to Purchaser from time to time in all material respects, and with applicable Law in connection with the receipt by Purchaser or its designees of the Services, provided that Seller shall, and shall use commercially reasonable efforts to, and cause its Affiliates and Subcontractors to, provide Purchaser reasonable information in advance with respect to such terms and conditions, subject to any such Assumed confidentiality obligations under the applicable Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilled.
Appears in 2 contracts
Samples: Transition Services Agreement (Seres Therapeutics, Inc.), Transition Services Agreement (Seres Therapeutics, Inc.)
Third Party Consents. To (a) As soon as practicable after the date hereof but in no event later than ten days following any request by Seller (which request shall specify the information required), Buyer shall provide to Seller all of the information, materials and certifications required in order to complete the appropriate FCC Form 394 for each Franchising Authority or other Governmental Entity and other information required by the Franchising Authorities or other Governmental Entity. Buyer shall on a timely basis cooperate and work with Seller to request the Consents from the appropriate third party.
(b) Buyer shall thereafter use its commercially reasonable efforts to obtain all Consents as expeditiously as possible and, to the extent that any Assumed Contractnot obtained by the applicable Closing, Intellectual Property or Registration is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall continue to use its commercially reasonable efforts to obtain such Consents for six months after the applicable Closing. During this six-month time period and pending or in the absence of any such consent, authorization or approval, the Parties shall cooperate with each other in any reasonable and lawful arrangements to provide to Buyer the benefits and liabilities of use of such Acquired Contract. Buyer shall use commercially reasonable efforts to obtain satisfy the consent concerns, if any, of [****]*, any Franchising Authorities or other Governmental Entity or other third parties as to Buyer’s ability to perform pursuant to the extent requiredFranchises and the other Acquired Contracts, excluding any concerns relating to Seller’s operation of the Systems. If, notwithstanding their commercially reasonable efforts, Buyer and Seller are unable to obtain such Consents, Buyer shall not be liable to Seller for breach of the covenants set forth in this Section 8.1 (but Seller shall have no obligation to effect the Closing unless the condition set forth in Section 9.3 hereof shall have been satisfied or waived). Notwithstanding anything to the contrary contained in this Agreement, nothing herein shall require Buyer to pay any funds (other than its usual or customary attorneys fees, consulting fees, filing fees or other normal costs of doing business) or to give any other consideration in order to obtain any Consent or to agree to any materially adverse modification to the terms or rights of any Franchise, Permit or Material Acquired Contract in connection with obtaining any Consent, provided, however, that Seller and Buyer shall equally share all reasonable or customary fees imposed by Franchising Authorities or any other Governmental Entity incurred in connection with obtaining the consents for the assignment of Franchises.
(c) Buyer shall cooperate fully with Seller in obtaining any Assumed Contracts to which it is a partynecessary Consents. Seller Buyer shall use its commercially reasonable efforts to obtain attend such meetings as Seller may reasonably request in connection with obtaining the Consents, and Buyer shall provide such financial information as third parties may reasonably request in connection with the review of the requested Consent. Buyer acknowledges that it may need to enter into direct agreements with Franchising Authorities, other Governmental Entities or other third parties. Buyer shall bear any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested costs arising with respect to the omitted portions. performance of the Franchises post-Closing (other than any costs arising as a result of noncompliance by Seller with any Franchise prior to the applicable Closing) in accordance with the terms of any Franchises, including any amendments or modifications executed or assumed by Buyer or under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer terms of any and all rights of Seller against the Consents granted by any Franchising Authority or other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledGovernmental Entity.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Knology Inc), Asset Purchase Agreement (Knology Inc)
Third Party Consents. (a) To the extent that any Assumed Contract, Intellectual Property or Registration is not assignable without the consent of another partyPerson is required by the terms of any Assigned Contract or applicable law in order to assign the rights of Seller under that Assigned Contract to Buyer (a “Required Consent”), this Agreement Seller shall use all reasonable efforts to obtain such Required Consent as promptly as possible, at its own expense, and without agreeing to any change in the terms of the applicable Assigned Contract without Buyer’s prior written consent. Buyer shall cooperate with and use all reasonable efforts to assist Seller in obtaining such Required Consents, but Buyer will not be required to make any payments or agree to any change in the terms of any Assigned Contract in connection with obtaining such Required Consent, provided that consent to such a change shall not constitute be unreasonably withheld, conditioned or delayed if a proposed change is not material. Seller shall be permitted to seek a novation in lieu of an assignment with respect to the Assigned Contracts (and Buyer agrees to sign a novation agreement in reasonable and customary form if Seller is able to obtain consent to such novation from the counterparty to the Assigned Contract), but agrees that it will not send any notices or communications to any party to an Assigned Contract seeking a novation or otherwise seeking their consent in connection with the transactions contemplated hereby unless it is in substantially the same form as Buyer has approved, with such approval not to be unreasonably withheld, conditioned or delayed so long as such notice does not suggest that such consent is a Required Consent.
(b) Seller shall be responsible for obtaining such Required Consents, and accordingly if a Required Consent is not obtained within the initial nine month period following the Closing, and during such period, as a result, under the terms of the Assigned Contract and applicable law, an Assigned Contract is terminated, or Buyer’s rights with respect to such Assigned Contract are impaired, or Buyer does not in effect obtain the benefit of such Assigned Contract, notwithstanding Buyer’s performance of (or willingness to perform) the obligations under such Assigned Contract, Buyer shall have a claim against Seller and Parent under Section 9.1 for breach of their covenant hereunder in the amount of the minimum guaranteed royalties under such Assigned Contract for the duration of the remaining current term under such Assigned Contract, plus Buyer’s reasonable out-of-pocket costs and expenses in connection with pursuing such claim under Section 9.1.
(c) Without limiting the foregoing section (but without duplication of any Losses), within the initial nine month period following the Closing, if any other party to an Assigned Contract alleges that due to the failure to obtain a Required Consent or novation, an Assigned Contract is terminated, an assignment of an Assigned Contract (or an attempted assignment thereof alternative arrangement described in Section 2.8(d) below) was ineffective and that as a result the Assigned Contract has thus been breached or is no longer in effect, or Buyer’s rights with respect to such Assigned Contract are impaired, or Buyer does not in effect obtain the benefit of such Assigned Contract, notwithstanding Buyer’s performance of (or willingness to perform) the obligations under such Assigned Contract, it shall be treated as a third party claim that is subject to Section 9.2.
(d) Without limiting the foregoing, if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer is unable to assign an Assigned Contract, Seller shall each continue to be obligated to use commercially all reasonable efforts to obtain the necessary consent of [****]*to assignment, to the extent required, for and the assignment of any Assumed Contracts to which it is a party. Seller such Assigned Contract shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any not take effect until such consent shall not be has been obtained, and until such assignment (or a novation) has been effected, Seller shall hold such Assigned Contract in trust for the Buyer, account for and pay or deliver to the Buyer as soon as reasonably practicable after receipt any amounts paid to Seller under such Assigned Contract, and otherwise act in accordance with Buyer’s reasonable requests in accordance with such Assigned Contract, and Buyer shall perform the obligations under such Assigned Contract, and the parties will otherwise cooperate with Buyer in any to establish a reasonable arrangement designed to provide for under which Buyer shall obtain the benefits intended of such Assigned Contract and be responsible for the obligations thereunder that would have been Assumed Liabilities.
(e) Notwithstanding the foregoing if the party to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested any Assigned Contract with respect to which a Required Consent has not been obtained accepts performance from Buyer and fails to object within the omitted portions. to Buyer under initial nine months after the relevant Assumed ContractClosing, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant liability in connection with failure to Section 2.3 or otherwise obtain a Required Consent with respect to any such Assumed Assigned Contract, Intellectual Property or Registration. The provisions .
(f) For purposes of this Section 2.7 2.8, provided that Buyer offers reasonable cooperation (at no out of pocket cost to Buyer) and performs its obligations under the Transitional Services and License Agreement, from the Closing through May 31, 2013, Seller shall be responsible if there is any failure of the services provided under the Transitional Services and License Agreement to meet the corresponding obligations under the Assigned Agreement, and thereafter Buyer shall be responsible for any failure of such services to meet such obligations.
(g) Notwithstanding anything to the contrary herein, only the first $250,000 of any indemnity obligations of Seller and Parent pursuant to this Section 2.8 (in the aggregate) shall be subject to the Basket, and the cap on liability set forth in Section 9.4(b) shall not affect apply.
(h) Seller or its Affiliates shall not seek any Required Consents or novations any time after the right initial nine month period following the Closing without the prior written consent of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledBuyer.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Iconix Brand Group, Inc.)
Third Party Consents. To (a) Unless Purchaser elects not to assume the extent that any Assumed ContractBanking Center Lease (and the corresponding Equipment Leases) pursuant to Section 1.10, Intellectual Property or Registration is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain from lessors or sublessors under Equipment Leases any and all consents necessary for to the effective assignment to and assumption by Buyer of such leases required under the terms thereof in connection with the consummation of the Assumed Contracts, transactions contemplated hereby (the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer“Lessor Consents”). If any such consent Lessor Consent shall not have been obtained prior to the Closing then, notwithstanding any other provision hereof, the applicable Equipment Lease shall not be assigned to Purchaser at Closing and the parties shall negotiate in good faith and Seller and Purchaser shall use their commercially reasonable efforts to make alternative arrangements reasonably satisfactory to Seller and Purchaser that provide Purchaser, to the extent reasonably practicable, the benefits of the properties subject to Equipment Leases in a manner that does not violate the applicable Equipment Lease. If any alternative arrangement is implemented between Seller and Purchaser at or prior to the Closing, the parties shall continue after the Closing to exercise their commercially reasonable efforts to obtain the related consents that could not be obtained prior to the Closing, and, if such consent is obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed assign to provide for Buyer Purchaser the benefits intended applicable Equipment Lease pursuant to be the terms of this Agreement applicable to leases assigned * Certain information on this page at the Closing, and the parties shall restructure the applicable alternative arrangement.
(b) Unless Seller has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect directed by Purchaser to the omitted portions. give notice of termination to Buyer all vendors under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost related Assignable Contracts and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and elects not to the extent that such arrangement cannot be made, Buyer shall have no obligation assume certain Assigned Contracts pursuant to Section 2.3 or otherwise with respect 1.10, Seller shall use its commercially reasonable efforts to obtain from the parties to any Assignable Contract or other contract or agreement to be transferred hereunder any consents to the assignment required under the terms of such Assumed Contract, Intellectual Property Assignable Contract or Registration. The provisions other contract or agreement in connection with the consummation of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if hereby.
(c) Unless Purchaser elects not to assume the condition Banking Center Lease pursuant to Section 1.10, Seller shall use its obligations hereunder contained in Section 9.1 has not been fulfilledcommercially reasonable efforts to obtain the consent of the landlord under the Banking Center Lease for the assignment of such lease to Purchaser.
Appears in 2 contracts
Samples: Purchase and Assumption Agreement (Green Bancorp, Inc.), Purchase and Assumption Agreement (Green Bancorp, Inc.)
Third Party Consents. To (a) Seller will request, from the extent appropriate parties (and in accordance with the documents creating such rights and/or requirements), the Consents or waivers of requirements that any Assumed ContractConsents be obtained, Intellectual Property which are identified (or Registration is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereundershould be identified) in Exhibit 4.5. Seller and Buyer shall each use commercially reasonable efforts to obtain such Consents and/or waivers. Upon the consent Closing, Seller shall turn over to Buyer its files relating to its efforts to obtain such Consents and shall retain copies of [****]*such files and from and after Closing until the six month anniversary thereof, Seller shall continue to use commercially reasonable efforts to secure such Consents.
(b) If Seller is unable to obtain any Consent prior to Closing, then (i) the Easement to which such Consent relates and, except for any related Permits, all other Properties related to such Easement (the “Retained Easements and Properties”) shall not be assigned by Seller to Buyer at Closing, (ii) the Unadjusted Purchase Price shall be reduced at Closing by the aggregate Consent Properties Allocated Values of the Retained Easements and Properties (the “Consent Escrow Amount”) and (iii) and the Parties and the Escrow Agent shall enter into the Escrow Agreement (which Escrow Agreement shall include, among other customary terms and provisions, provisions providing (A) that upon the consummation of a Retained Easement Closing, a portion of the Consent Escrow Amount equal to the extent requiredaggregate Consent Properties Allocated Values attributable to the Retained Easements and Properties being assigned to Buyer at such Retained Easement Closing be released to Seller and (B) that upon the consummation of an Alternative Transaction, for the assignment remainder of any Assumed Contracts the Consent Escrow Amount then held by the Escrow Agent be released to which it is a partySeller). At the Closing, Buyer shall deposit the Consent Escrow Amount with the Escrow Agent in accordance with the terms and provisions of the Escrow Agreement. During the six (6) month period following the Closing, Seller shall continue to use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party outstanding Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. Retained Easements and Properties and if and when any such Consents are obtained by Seller, Seller shall assign the Retained Easements and Properties to which the obtained Consent relates to Buyer under pursuant to a conveyance that is substantially similar to the relevant Assumed ContractConveyances delivered at Closing (the conveyance of such Retained Easements and Properties to Buyer, Intellectual Property or Registrationa “Retained Easement Closing”), including enforcement at and Buyer shall direct the cost and for Escrow Agent to pay Seller the account Consent Properties Allocated Value of Buyer of any and all rights of Seller against the other party thereto arising out each Retained Easement that is conveyed to Buyer. If, as of the breach or cancellation thereof by such other party or otherwise. If and to date that is six (6) months following the extent that such arrangement cannot be madeClosing, Buyer shall have no obligation pursuant to Section 2.3 or otherwise any Consents remain outstanding with respect to any Retained Easements and Properties then, at Buyer’s option, (i) Parent and Buyer will in good faith negotiate the terms and conditions of, and enter into, an agreement that provides for either (A) the sale of the equity interests in Seller, after giving effect to the conveyance of the Excluded Assets to Parent (or an affiliate thereof) (the “Entity Sale”) or (B) a multi-survivor or divisional merger of Seller and Buyer (the “Merger” and together with the Entity Sale, each, an “Alternative Transaction”) pursuant to the Texas Business Organizations Code, as amended (the “TBOC”), and as defined by TBOC Section 1.002(55), which will result in (1) Seller surviving the Merger and being vested with all of the Excluded Assets (and all Damages associated therewith) and (2) either Buyer surviving the Merger (in the situation where a Merger as described in TBOC Section 1.002(55)(B) is consummated) or a newly formed limited liability company wholly-owned by Buyer surviving the Merger (in the situation where a Merger as described in TBOC Section 1.002(55)(A) is consummated) and Buyer (or such Assumed Contractnewly formed limited liability company, Intellectual Property as applicable) being vested with all of the Retained Easements and Properties (but, for the avoidance of doubt, no other properties and no liabilities, obligations or Registration. The provisions Damages other than these related to the Properties and for which Buyer has agreed (in this Agreement) to be liable), it being acknowledged and agreed that terms and conditions of this Agreement, including, for the avoidance of doubt, the Survival Periods, which shall be deemed to have commenced as of the Closing Date, in Section 2.7 15.1 shall not affect apply mutatis mutandis to the right terms of such agreement providing for the Entity Sale or the Merger, or (ii) Buyer not shall direct the Escrow Agent to consummate pay the Seller the balance of the Consent Escrow Amount (in which case, Seller shall assign the Retained Easements and Properties with respect to which Consents remain outstanding to Buyer pursuant to a conveyance that is substantially similar to the Conveyance). Upon the closing of the transactions contemplated by this Agreement if an Alternative Transaction, Buyer shall direct the condition Escrow Agent to its obligations hereunder contained in pay the Seller the balance of the Consent Escrow Amount. Buyer and Seller hereby acknowledge and agree that, for federal and state income Tax purposes, Buyer shall be treated as the owner of the Consent Escrow Amount and any interest or other income earned with respect to the Consent Escrow Amount shall be treated as income of Buyer until the Consent Escrow Amount is released upon final disbursement. Buyer and Seller acknowledge and agree that any disbursement of the Consent Escrow Amount to Seller shall be treated as a payment to which the installment sale provisions of Section 9.1 has not been fulfilled453 of the Code apply.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Rice Energy Inc.)
Third Party Consents. To (a) Promptly after the extent Execution Date of this Agreement, each Seller, for contracts listed on Exhibit 1 to which it is the counterparty, shall prepare and send notices to the holders of any consents to the transfer of the Oil & Gas Interests requesting consents to the transactions contemplated by this Agreement, which notices shall, with respect to contracts listed on Exhibit 8, be substantially in the form required by Exhibit 8 for such contract. Copies of these notices shall be simultaneously provided to Purchaser. The Parties shall use commercially reasonable efforts (at no cost to Sellers) to cause such consents to assignment to be obtained prior to Closing. Subject to Section 4.5(c), Purchaser shall cooperate reasonably with the Sellers in seeking to obtain such consents to assignment.
(b) In no event shall the Sellers be required to transfer to Purchaser any contract interests for which a consent requirement has not been satisfied (which contract interests shall, if the relevant consent has not been obtained or waived on or before the Final Accounting Date, constitute Excluded Assets); provided however, except with respect to the contract interests described on Exhibit 8, if such consent requirement is subject to an express or implied provision to the effect that such consent may not be unreasonably withheld and the Sellers, in their sole discretion, determine that such consent is being unreasonably withheld, at Purchaser’s written request, Sellers may decide (whether at or after Closing) to assign such contract interest to Purchaser, and Sellers shall not be liable to Purchaser by reason of any Assumed Contract, Intellectual Property inability or Registration failure to obtain any such consent to assignment and Purchaser shall defend and indemnify each Seller for any matters in connection therewith.
(c) If a consent is not assignable without obtained because there is a request from the consent of another partyholder that the Purchaser provide appropriate collateral or security, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each then Purchaser will use commercially reasonable efforts to provide any additional collateral or security to meet reasonable financial requirements demanded by a counterparty in order to obtain consents from such counterparty. If Purchaser fails to provide such collateral and Sellers (or the consent relevant Seller as the case may be) elect not to transfer the agreement pursuant to Section 4.5(b) above, Sellers (or the relevant Seller as the case may be) have all rights to terminate or amend that agreement.
(d) None of [****]*, the Sellers shall be liable to the extent required, for the assignment Purchaser by reason of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts inability or failure to obtain any and all consents necessary for the effective consent to assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilled4.5.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Stone Energy Corp)
Third Party Consents. To (a) Notwithstanding anything in this Agreement to the extent that any Assumed Contract, Intellectual Property or Registration is not assignable without the consent of another partycontrary, this Agreement shall not constitute an assignment agreement to assign any Contract, Permit, or any claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof if such assignment or attempted assignment thereof, without the consent of another Person thereto, would constitute a breach thereof Default thereunder or a default thereunderviolation thereof, or upon transfer would in any way adversely affect the rights of Buyer or its Affiliates under such Contract, Permit, claim or right. If any transfer or assignment by any Seller and to Buyer or its Affiliates, or any assumption by Buyer or its Affiliates of, any interest in, or Liability, obligation or commitment under, any Contract, Permit, claim or right requires the consent of another Person, then such transfer or assignment or assumption shall each be made subject to such consent being obtained.
(b) If any such consent has not been obtained prior to the Closing, the Sellers shall use their commercially reasonable efforts to secure such consent as promptly as practicable after the Closing and Buyer shall provide or cause to be provided all commercially reasonable assistance to the Sellers (not including, with respect to Buyer or the Sellers, the payment of any consideration (unless the Buyer directs otherwise and has agreed to be responsible therefor), the commencement of litigation or the agreement to modifications of the terms of any underlying agreement in order to obtain any such consents). Until any such consent is obtained, the Sellers shall provide Buyer with the economic, claims, rights and benefits, and Buyer shall bear the burdens and obligations, from and after the Closing (including the Assumed Liabilities) under the Contract, Permit, claim or right as if the consent of [****]*, had been obtained in accordance with this Agreement.
(c) Subject to the extent requiredpreceding paragraph (b), in the event that, at any time following the Closing, the Sellers become aware (by notice from Buyer or otherwise) that Buyer did not receive all Acquired Assets at the Closing, the Sellers shall, at the Sellers’ sole cost and expense, cause the prompt transfer of any such Acquired Assets not so received to Buyer. Prior to any such transfer, the Sellers shall hold such Acquired Assets in trust for Buyer. In the event that the Sellers have transferred (other than to Buyer), sold or otherwise disposed of such Acquired Assets, the Sellers shall, at the Sellers’ sole cost and expense, make proper provision such that Buyer receives the equivalent benefit of such Acquired Assets. The Sellers shall give all reasonable assistance to Buyer (at Buyer’s request) to enable Buyer to enforce its rights under any Contract that constitutes an Acquired Asset.
(d) With respect to the Employee(s) named on Schedule 1.2(i)(B) and for the term set forth therein, Sellers shall cooperate with Buyer to enforce, for the assignment benefit of any Assumed Contracts Buyer and the Business, the noncompete, nonsolicitation, confidentiality and other restrictive covenants relating to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of Acquired Assets, the Assumed Contracts, Liabilities or the Intellectual Property, Business contained in the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents agreements set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and 1.2(i)(B) to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledset forth therein.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Sabre Corp)
Third Party Consents. To the extent that any Assumed Contract, Intellectual Property or Registration is not assignable without the consent of another party, this Agreement (a) Buyer and Sellers shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller cooperate with each other and Buyer (i) shall each use their commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If prepare and to the extent file all necessary documentation, and to effect all applications, notices, petitions and filings, with each third party (other than a Governmental Authority) that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 are necessary or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not advisable to consummate the transactions contemplated by this Agreement, and (ii) shall use their commercially reasonable efforts to obtain as promptly as practicable any Permit, consent, approval, waiver or authorization (collectively for purposes of this Section 6.6, “Consents”) of such third party that is necessary or advisable to consummate the transactions contemplated by this Agreement. No failure to obtain any Consent by Seller Parent, in and of itself, shall constitute a breach of this Agreement. Seller Parent shall use its, and shall cause its Affiliates to use their, reasonable best efforts, with Buyer’s cooperation, to negotiate and obtain all Consents from third parties necessary or appropriate to permit the transfer of the Acquired Companies and the Associated Assets and to permit Seller Parent to provide to Buyer the Services, as such term is defined under the Transition Services Agreement. The costs of obtaining or pursuing all Consents required from Sellers’ information technology vendors or providers to permit the performance of Transition Services and Omitted Services (as each such term is defined under the Transition Services Agreement) for Buyer under the Transition Services Agreement if will be borne by the condition parties in accordance with the arrangement described on, and the parties will otherwise comply with the terms of, Schedule 6.6(a).
(b) Schedule 6.6(b) sets forth an estimate of the number of full-time equivalent (“FTE”) employees who perform, or are expected after the Closing Date (assuming such FTE employee will not be a Continuing Business Employees hereunder) to perform, any of the Services, other than the IT Services and the Discretionary Development Services, each as defined in the Transition Services Agreement, required to be performed by Sellers or any of their Affiliates pursuant to the Transition Services Agreement. Within 15 Business Days after the date hereof, Sellers will prepare and deliver to Buyer (i) an updated Schedule 6.6(b), which will set forth Sellers’ good faith estimate of the rates and other costs applicable to the provision of such Services by such FTE employees pursuant to the Transition Services Agreement, which rates and costs will equal the actual cost to Sellers (including salary, incentive compensation, benefits, and related allocated facility, equipment and desktop information and telecommunications technology costs, along with any appropriate direct purchase costs relating to the task, the “Actual Costs”) of making such employees available to provide such Services under the Transition Services Agreement and (ii) a certificate signed by an executive officer of Seller Parent to the effect that Sellers have used their best efforts to calculate as accurately as possible such Actual Costs. For a period of 15 Business Days following receipt of the updated Schedule 6.6(b) and again for the 45-day review period referenced below, Buyer will be entitled to reasonable access during normal business hours to the relevant records of Buyer to aid in its obligations hereunder contained review of Schedule 6.6(b). The parties will cooperate and work together in good faith to agree on the hours to be charged and will attempt to agree on fully loaded costs. The entire content of Schedule 6.6(b), as finalized in accordance with the terms of this Section 6.6(b), will be deemed to have been integrated into Exhibit A of the form of Transition Services Agreement attached hereto as Exhibit H. On a monthly basis after the Closing Date, Sellers will invoice Buyer for the Services (other than the IT Services and the Discretionary Development Services) performed by Sellers under the Transition Services Agreement using the Actual Costs as determined pursuant to this Section 6.6(b), unless Buyer delivers to the Seller Representative, within 45 days after receipt of the initial billing for such Services after the Closing Date, a written notice indicating that it disagrees that the rates and costs set forth on the updated Schedule 6.6(b) represent the Actual Costs. Buyer and the Seller Representative shall work together in good faith to resolve any disagreements regarding the calculation of the Actual Costs. If the parties cannot agree on the calculation of the Actual Costs within 30 days after Buyer delivers a notice of disagreement pursuant to this paragraph (b), Buyer and the Seller Representative shall submit the matter in dispute to the Independent Accountant for resolution in accordance with the terms set forth in Section 9.1 has not been fulfilled2.3(b)(vi).
Appears in 2 contracts
Samples: Purchase Agreement (Tower Group, Inc.), Purchase Agreement (OneBeacon Insurance Group, Ltd.)
Third Party Consents. To the extent that Seller’s rights under any Assumed ContractContract or Permit constituting a Purchased Asset, Intellectual Property or Registration is any other Purchased Asset, may not assignable be assigned to Buyer without the consent of another partyPerson which has not been obtained, this Agreement shall not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller be unlawful, and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*Seller, to the extent requiredat its expense, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable best efforts to obtain any such required consent(s) as promptly as possible; provided, however, that any amounts required to be paid to any third-party in order to obtain a consent from such third-party, and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contractsthat are commercially reasonable in Buyer’s judgment, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be borne and paid fifty percent (50%) by Seller from the Escrow Amount and fifty percent (50%) by Buyer, in writing and executed counterparts thereof shall be delivered promptly to Buyereach case when due. If any such consent shall not be obtainedobtained or if any attempted assignment would be ineffective or would impair Buyer’s rights under the Purchased Asset in question so that Buyer would not in effect acquire the benefit of all such rights, then at Buyer’s election in Buyer’s sole and absolute discretion, (a) Seller shall act after the Closing as Buyer’s agent in order to obtain for it the benefits thereunder, (b) Buyer shall perform any services required to be performed as Seller’s agent and (c) the parties hereto shall cooperate with Buyer in any other reasonable arrangement designed to provide for Buyer the such benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect Buyer, all to the omitted portions. to Buyer under maximum extent permitted by law and the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwisePurchased Asset. If Buyer does not make such election, Seller shall have the right to assign any such Contract to a third-party selected by Seller. Notwithstanding any provision in this Section 2.10 to the contrary, Buyer shall not be deemed to have waived its rights under Section 7.02(d) hereof, if and to the extent that such arrangement cannot be madeapplicable, unless and until Buyer shall have no obligation pursuant either provides written waivers thereof or elects to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not proceed to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledat Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hunt J B Transport Services Inc)
Third Party Consents. (a) Conopco and Purchaser will cooperate and use their respective commercially reasonable efforts to obtain as promptly as practicable all consents, approvals and waivers required by third Persons to permit the transfer of the Purchased Assets to, and the assumption of the Assumed Liabilities by, Purchaser in a manner that will avoid any default, conflict, or termination of rights under the Contracts, Purchased Intellectual Property and Authorizations of the Business.
(b) In the event that any and all consents, approvals or waivers necessary for the assignment or transfer of any Contract, Purchased Intellectual Property or Authorization, or any claim, right or benefit arising thereunder or resulting therefrom, shall not have been obtained prior to the Closing Date, then as of the Closing, this Agreement and the Seller Ancillary Agreements, to the extent permitted by Law, shall constitute a full and equitable assignment by Sellers to Purchaser of all of Sellers' right, title and interest in and to, and all of Sellers' obligations and liabilities under, such Contract, Purchased Intellectual Property and Authorizations, and, in the case of Contracts, Purchaser shall be deemed Sellers' agent for purpose of completing, fulfilling and discharging all of Sellers' Liabilities under any such Contract. Subject to Section 6.5(a), the parties shall take all reasonable, lawful and necessary steps and actions to provide Purchaser with the benefits of such Contracts, Purchased Intellectual Property and Authorizations, and, in the case of Contracts, to relieve Sellers of the performance and other obligations thereunder, including entry into subcontracts for the performance thereof. Purchaser agrees to pay, perform and discharge, and indemnify Sellers against and hold Sellers harmless from, all obligations and Liabilities of Sellers relating to such performance or failure to perform under such Contracts.
(c) In the event any Seller shall be unable to make the equitable assignment described in Section 6.5(b), or if such attempted assignment would give rise to any right of termination, or would otherwise adversely affect the rights of such Seller or Purchaser under such Contract or Purchased Intellectual Property, or would not assign all of such Seller's rights thereunder at the Closing, Conopco shall continue to cooperate with Purchaser and, subject to Section 6.5(a), use all reasonable efforts to provide Purchaser with all such rights. To the extent that any Assumed Contractsuch consents and waivers are not obtained, Intellectual Property or Registration is not assignable without until the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if impediments to such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller are resolved, Conopco shall (and Buyer shall each cause the other Sellers to), subject to Section 6.5(a), use commercially all reasonable efforts to obtain (i) provide to Purchaser, at the consent request of [****]*Purchaser, the benefits of any such Contract, to the extent requiredrelated to the Business, for the assignment or of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the such Purchased Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a(ii) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable and lawful arrangement designed to provide for Buyer the such benefits intended to be assigned * Certain information on this page has been omitted Purchaser and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract(iii) enforce, Intellectual Property or Registration, including enforcement at the cost request of and for the account of Buyer Purchaser, any rights of Sellers arising from any such Contract or Purchased Intellectual Property against any third Person, including the right to elect to terminate in accordance with the terms thereof upon the advice of Purchaser. To the extent that Purchaser is provided the benefits of any Contract or Purchased Intellectual Property referred to herein (whether from Sellers or otherwise), Purchaser shall perform the obligations of Sellers thereunder or in connection therewith.
(d) Prior to and all rights of Seller against following the Closing, Conopco shall (and shall cause the other Sellers to) provide reasonable assistance to Purchaser, at Purchaser's expense (with respect to third party thereto arising out out-of-pocket expenses but not with respect to de minimis costs), in the preparation and filing of any applications or registrations with Governmental Authorities required or appropriate to be made prior to the Closing in order to effect the transfer or assignment of the breach Authorizations in connection with the transactions contemplated hereby.
(e) To the extent Conopco or cancellation thereof by its Affiliate is required, pursuant to the lease dated June 1, 1993 between Conopco and ROA Blvd. LLC for the premises located at 1342 Roanoke Boulevard, Roanoke, Virginia to remain primarily liable xxx xxx xxxxxxxxxxx xxxxxxxxxx xx xxxxx xo assign such other party or otherwise. If and lease to Purchaser pursuant to this Agreement without the consent of the landlord thereunder, Conopco shall remain primarily liable for such obligations, provided that such obligations shall constitute an Assumed Liability to the extent that provided in Section 2.2(a). Purchaser will use its reasonable commercial efforts to arrange for Conopco and its Affiliates to be released from such arrangement cannot be madeobligations, Buyer including by arranging for an appropriate security deposit.
(f) Notwithstanding anything to the contrary in this Agreement, nothing in this Section 6.5 shall have no obligation pursuant require Conopco or Purchaser to Section 2.3 expend any sum (other than an immaterial sum), make a financial commitment (other than an immaterial financial commitment) or otherwise with respect grant or agree to any concession (other than an immaterial concession) to any third Person to obtain any such Assumed Contractconsent, Intellectual Property approval or Registration. The provisions waiver other than in connection with Purchaser's obligations in the last sentence of this Section 2.7 shall not affect 6.5(e) and in the right last sentence of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its Part I of Schedule 6.5(f) and Conopco's obligations hereunder contained in Section 9.1 has not been fulfilledunder Schedule 6.5(f).
Appears in 1 contract
Third Party Consents. To the extent that any Assumed ContractReal Property Lease, Intellectual Personal Property Lease, Business Contract or Registration Business License is not assignable without the consent of another partyparty (a "Third Party Consent"), this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof thereof. WL or a default thereunder. Seller PD, as the case may be, and Buyer Purchaser shall each use commercially reasonable efforts to obtain the consent of [****]*, such other party to the extent required, for the assignment of any Assumed Contracts such Real Property Lease, Personal Property Lease, Business Contract or Business License to Purchaser in all cases in which it such consent is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary or may be required for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyerassignment. If any such consent Third Party Consent shall not be obtained, Seller WL or PD, as the case may be, shall cooperate with Buyer Purchaser in any reasonable arrangement designed to provide for Buyer Purchaser the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer Purchaser under the relevant Assumed ContractReal Property Lease, Intellectual Personal Property Lease, Business Contract or RegistrationBusiness License, including including, but not limited to, enforcement at the cost of Sellers and for the account of Buyer Purchaser of any and all rights of Seller WL or PD, as the case may be, against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer Purchaser shall have no obligation pursuant to Section 2.3 2.02 or otherwise with respect to any such Assumed ContractReal Property Lease, Intellectual Personal Property Lease, Business Contract or RegistrationBusiness License. The provisions If the commercially reasonable efforts of a Seller, required by this Section 2.7 2.06, have failed to secure any Third Party Consent, and if, in the opinion of Purchaser, the absence of a Third Party Consent has deprived Purchaser of a material benefit of its bargain hereunder or under the Operative Agreements, and if Seller and Purchaser have been unable to agree upon an arrangement designed to provide for Purchaser the benefits intended to be assigned to it, then the parties agree to negotiate in good faith an offset to the Purchase Price paid by Purchaser hereunder for that part of the benefit the parties mutually agree Purchaser has lost. Nothing in this Section 2.06 shall not affect be deemed to waive the right rights of Buyer the Purchaser not to consummate the transactions contemplated by this Agreement or the Operative Agreements if the condition to its obligations hereunder contained in Section 9.1 has 7.06 have not been fulfilled.
Appears in 1 contract
Samples: Asset Purchase Agreement (King Pharmaceuticals Inc)
Third Party Consents. To the extent that the Sellers’ rights under any Assumed Contractagreement, Intellectual Property contract, commitment, lease, permit or Registration is other asset to be assigned to the Purchaser under this Agreement may not assignable be assigned without the consent of another partyPerson which has not been obtained, this Agreement shall not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller be unlawful, and Buyer the Sellers shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(asuch required consent(s) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered as promptly to Buyeras possible. If any such consent shall not be obtainedobtained or if any attempted assignment would be ineffective or would impair the Purchaser’s rights under the asset in question so that the Purchaser would not in effect acquire the benefit of all such rights, Seller the Sellers, to the maximum extent permitted by Law, shall cooperate act after the Closing as the Purchaser’s agent in order to obtain for it the benefits thereunder and shall cooperate, to the maximum extent permitted by Law, with Buyer the Purchaser in any other reasonable arrangement designed to provide for Buyer the such benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed ContractPurchaser, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that the Purchaser receives such arrangement cannot benefits, the Purchaser shall be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registrationresponsible for the performance of Sellers’ obligations thereunder. The provisions of Nothing in this Section 2.7 2.4 shall not affect be deemed a CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. waiver by the Purchaser of its right to have received on or before the Closing an effective assignment of Buyer not all of the Acquired Assets nor shall this Section 2.4 be deemed to consummate constitute an agreement to exclude from the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Acquired Assets any assets described under Section 9.1 has not been fulfilled1.2.
Appears in 1 contract
Third Party Consents. To (a) Except as otherwise agreed by the extent parties, each party shall cooperate with the other, and shall cause their Affiliates to, use commercially reasonable efforts to make or obtain the Third-Party Consents set forth in Schedule 7.04 and the Third-Party Consents required for AFG and its Affiliates to provide Services (as defined in the Transition Services Agreement) under the Transition Services Agreement, in each case, prior to the Closing; it being understood and agreed by the parties that any Assumed Contract, Intellectual Property or Registration is not assignable without the consent Seller shall lead such process and Buyer shall reasonably cooperate. Each of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall bear its own and its Affiliates’ internal costs to obtain such Third-Party Consents and the aggregate amount of out-of-pocket consent fees payable to counterparties in order to make or obtain such Third-Party Consents (whether before or after Closing) shall be borne fifty percent (50%) by Buyer and fifty percent (50%) by Seller; provided, that none of the parties shall be required to compromise any right, asset or benefit or incur any Liabilities (other than such costs and expenses) or commence or participate in any Action in order to obtain any Third-Party Consent.
(b) With respect to each use Third-Party Consent required with respect to each GAAI Advisory Contract, Seller shall use, or shall cause GAAI to use, commercially reasonable efforts to obtain the written consent of [****]*or, to the extent requiredpermitted by such GAAI Advisory Contract, for Negative Consent of each GAAI Advisory Client to the assignment or deemed assignment of such GAAI Advisory Client’s GAAI Advisory Contract in connection with the transaction contemplated hereby. In connection with obtaining the GAAI Advisory Client consents, Seller shall take reasonable steps to keep Buyer promptly informed of the status of obtaining such GAAI Advisory Client consents and, upon Buyer’s request, make available to Buyer copies of all such executed GAAI Advisory Client consents and other material records relating to the GAAI Advisory Client consent process. In connection with obtaining GAAI Advisory Client consents, Buyer shall have the right to review in advance of distribution the general forms of any Assumed Contracts notices or other materials to which it be distributed by Seller or GAAI to GAAI Advisory Clients and shall have the right to have its reasonable comments considered by Seller in a commercially reasonable manner prior to distribution.
(c) From and after the Closing Date through the date that is a party. Seller twelve (12) months following the Closing Date, the parties shall continue to use its commercially reasonable efforts to obtain obtain, as promptly as practicable, any and all consents necessary for the effective assignment to and assumption by Buyer such required Third-Party Consents that have not been obtained as of the Assumed ContractsClosing Date, subject to the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents limitations set forth on Attachment 4.2(ain Section 7.04(a). With respect to each Shared Contract, from and after the date of this Agreement through the earlier of (i) hereto the date that is twelve (12) months following the Closing Date, and (ii) the consents set forth on Schedule 6.3 termination or expiration of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtainedShared Contract, Seller shall, and shall cause its Affiliates to, cooperate with Buyer to the extent reasonably requested by Buyer to cause the counterparty to any Shared Contract to enter into a new agreement, on substantially the same terms and conditions as those set forth in any reasonable arrangement designed to provide for the Shared Contract, with Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested or an Acquired Company with respect to the omitted portions. matters addressed by such Shared Contract that are related to the Business; provided, that the costs and expenses associated therewith shall be allocated to Buyer under the relevant Assumed Contractand Seller in accordance with, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and shall be subject to the extent limitations set forth in, Section 7.04(a); provided, further, that such arrangement cannot neither party shall in any event be maderequired to compromise any right, Buyer shall have no obligation pursuant to Section 2.3 asset or otherwise with respect to benefit or incur any such Assumed ContractLiabilities, Intellectual Property make any accommodations, or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained commence or participate in Section 9.1 has not been fulfilledany Action in connection therewith.
Appears in 1 contract
Samples: Stock Purchase Agreement (American Financial Group Inc)
Third Party Consents. To the extent that any Assumed Contract, Intellectual Property or Registration is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller Each SBS Entity shall use its commercially reasonable efforts to obtain any and all the consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, other contracting parties to the Intellectual Property, transactions contemplated hereby to the Registrations and extent required by the Assumed Liabilities, Station Agreements requiring such consent (including delivering reasonable assignment and/or assumption agreements that may be requested by the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 other contracting parties). The delivery of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portionsStation Agreements that are identified on Schedule 3.17 to be material to the operation of the Station ("Material Station Agreements") shall, pursuant to Section 8.6, be a condition to Buyer's obligation to close. To the extent that transfer or assignment hereunder by the SBS Entities to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights Station Agreement or license is not permitted or is not permitted without the consent of Seller against another Person, this Agreement shall not be deemed to constitute an undertaking to assign the same if such consent is not given or if such an undertaking otherwise would constitute a breach thereof or cause a loss of benefits thereunder. If, other than with respect to the Material Station Agreements, any such third party thereto arising out consent, approval or waiver is not obtained before the Closing, for a period continuing until the earlier of the breach first anniversary of the Closing Date or cancellation thereof by such other consent, approval or waiver is obtained, the parties shall use their commercially reasonable efforts in good faith to cooperate, and to cause each of their respective Affiliates to cooperate, in effecting any lawful arrangement to provide to Buyer the economic benefits of the Station Agreements for which third party or otherwise. If consents, approvals, and waivers are being sought after Closing, and Buyer shall, to the extent that such arrangement cannot be madeBuyer is provided with the benefits thereunder, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect assume and discharge the right of Buyer not to consummate obligations under the transactions contemplated by this Agreement if Station Agreements after the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledClosing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Spanish Broadcasting System Inc)
Third Party Consents. To (a) All Third Party Consents listed on Schedule 3.12(d)-2 shall be obtained within thirty (30) days of the extent date of this Agreement. If Seller fails to obtain valid written consent for a Third Party Consent listed on Schedule 3.12(d)-2 within thirty (30) days of the date of this Agreement, Seller shall pay to Buyer the amount listed on Schedule 5.11 that any Assumed Contractcorresponds to the applicable Third Party Consent. All amounts due under this Section 5.11 shall be paid to Buyer in cash within thirty five (35) days of the date of this Agreement.
(b) In the event Seller is unable to obtain a Third Party Consent and such failure to obtain consent does not require an adjustment to the Purchase Price set forth on Schedule 5.11, Intellectual Property or Registration is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each shall: (i) continue to use all commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the such Third Party Consents set forth on Attachment 4.2(aas soon as possible; and (ii) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If if any such consent shall is not be obtained, or if an attempted assignment thereof would be ineffective or would have, individually or in the aggregate, a Material Adverse Effect on the rights of Seller shall thereunder such that Buyer would not in fact receive all such rights, cooperate with Buyer in any reasonable to reach a mutually agreeable arrangement designed to provide for under which Buyer would obtain substantially the same economic benefits intended to that would be assigned * Certain information on this page has been omitted obtained under an assignment thereof and filed separately with assume the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registrationobligations thereunder, including enforcement at the cost and subcontracting, sub-licensing or sub-leasing to Buyer, or under which Seller would enforce for the account benefit of Buyer, with Buyer of assuming Seller's obligations, any and all rights of Seller against a third party thereto.
(c) In addition to the other party thereto arising out obligations of Seller in Sections 5.11(a) and 5.11(b) above, Seller shall be obligated to manufacture or procure the manufacture of the breach Service Boards and deliver the same to Buyer at Buyer's request, unless and until the Seller obtains the consent of Wireless Link Corporation to assign to Buyer that certain License Agreement, dated as of January 5, 2001, by and between Seller and Wireless Link Corporation. Seller shall sell such Service Boards to Buyer at or cancellation thereof by below historic costs without xxxx-up. Such Service Boards shall be of like or better quality and functionality as those obtained in the Acquired Assets and shall otherwise satisfy the standards set forth in Section 3.24. Seller shall deliver such other party or otherwise. If and Service Boards within a commercially reasonable time, allowing for required manufacturing lead times.
(d) Notwithstanding Section 5.11(a), Seller shall have ten (10) business days after Closing to obtain the consent of Siebel to the extent assignment of the Scopus licenses. In the event that Seller is unable to obtain such arrangement cannot be madeconsent, Seller shall provide Buyer all current and historical customer data stored in the Scopus database and Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contractother rights, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect in each case as more fully set forth in the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledTransition Services Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (At Track Communications Inc)
Third Party Consents. To the extent that Seller’s rights under any Assumed ContractContract or Permit constituting a Purchased Asset, Intellectual Property or Registration is any other Purchased Asset, may not assignable be assigned to Buyer without the consent of another partyPerson which has not been obtained, this Agreement shall not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller be unlawful, and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*Seller, to the extent requiredat its expense, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(asuch required consent(s) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered as promptly to Buyeras possible. If any such consent shall not be obtainedobtained or if any attempted assignment would be ineffective or would impair Buyer’s rights under the Purchased Asset in question so that Buyer would not in effect acquire the benefit of all such rights, Seller Seller, to the maximum extent permitted by law and the Purchased Asset, shall cooperate act after the Closing as Buyer’s agent in order to obtain for it the benefits thereunder and shall cooperate, to the maximum extent permitted by Law and the Purchased Asset, with Buyer in any other reasonable arrangement designed to provide for such benefits to Buyer. Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contractshall, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent it receives the benefits under any such Purchased Asset, perform the obligations of Seller thereunder. Once any such required consent has been obtained Seller shall promptly assign, transfer, convey and deliver the applicable Contract or Permit to Buyer, and Buyer shall assume any obligations under such Permit or Contract pursuant to an Assignment and Assumption Agreement upon substantially the same terms as those of the Assignment and Assumption Agreement (which Agreement Buyer and Seller shall prepare, execute and deliver in good faith at the time of such transfer). Notwithstanding any provision in this Section 2.09 to the contrary, it is a condition to Buyer’s obligation to close the transactions contemplated hereunder that Seller (x) provide evidence of notice or consent pursuant to the Contracts and Permits specifically designated as requiring such arrangement canevidence on Section 4.03 of the Disclosure Schedules (the “Material Consents”) in each case, in form and substance reasonably satisfactory to Buyer and Seller and (y) fulfill the condition contained in Section 7.02(o) hereof, and Buyer shall not be made, deemed to have waived its rights under Section 7.02(c) hereof unless and until Buyer shall have no obligation pursuant either provides written waivers thereof or elects to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not proceed to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledat Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (MWI Veterinary Supply, Inc.)
Third Party Consents. To the extent that any Assumed Contract, Intellectual Property or Registration is not assignable without the consent of another party, (a) Notwithstanding anything else in this Agreement to the contrary, none of this Agreement, the Asset Transfer Agreement and the Ancillary Agreements shall not constitute an assignment agreement to assign, license, sublicense, lease, sublease, convey or an attempted assignment thereof if transfer at Closing any Transferred Assets as to which consent or approval from any Person is required but has not been obtained as of the Closing Date unless and until such assignment consent, approval or attempted assignment would constitute a breach thereof amendment is no longer required or a default thereunder. Seller has been obtained.
(b) VPI and Buyer shall use, and cause each use commercially of their Subsidiaries to use, reasonable efforts endeavors to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 in Section 2.6 of the Seller's Disclosure Schedule. All Schedule and any other such consents, approvals or amendments identified by the parties after the date hereof, including using reasonable endeavors to obtain such consents after the Closing Date and upon obtaining the requisite consents or approvals thereto, such Transferred Assets shall be transferred and assigned to Buyer or the applicable Asset Transferee hereunder without further consideration thereof. Notwithstanding anything to the contrary in writing and executed counterparts thereof this Agreement, VPI shall be delivered promptly to Buyer. If any such consent responsible for its out-of-pocket expenses (including attorneys' fees) that may be reasonably required in connection with obtaining third party consents, provided, however, that VPI shall not be required to pay any fees or penalties to any third party in respect of such consents.
(c) In the event such required consent, approval or amendment is not obtained, Seller the parties shall cooperate with Buyer in any use reasonable arrangement endeavors to enter into arrangements designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer or its Subsidiaries the benefits, and assume the obligations and costs arising under such Transferred Asset. Notwithstanding anything else set forth in this Section 2.6, neither VPI nor any other of its Subsidiaries shall be required to take any action that may, in the relevant Assumed Contractreasonable judgment of VPI or such Subsidiary, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer (i) result in a violation of any obligation which VPI or any such Subsidiary has to any third party or (ii) otherwise violate applicable Law. Buyer shall indemnify VPI or any of its Affiliates for all costs and all rights of Seller against the other party thereto losses arising out of the breach any actions (or cancellation thereof by such other party omissions to act) of VPI or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise any Retained Subsidiary taken in accordance with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect 2.6 at the right written direction of Buyer not to consummate the transactions contemplated by this Agreement if the condition to or any of its obligations hereunder contained in Section 9.1 has not been fulfilledSubsidiaries (including any WEEMEA Company or any Subsidiaries of a WEEMEA Company).
Appears in 1 contract
Samples: Acquisition Agreement (Valeant Pharmaceuticals International)
Third Party Consents. To the extent that Seller’s rights under any Assumed ContractTransferred Contract or Permit constituting an Asset, Intellectual Property or Registration is any other Asset, may not assignable be assigned to Buyer without the consent of another partyPerson which has not been obtained prior to Closing, this Agreement shall not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller be unlawful, and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*Seller, to the extent requiredat its expense, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable best efforts to obtain any such required consent(s) as promptly as possible. With respect to the Required Consents, in the event any such Required Consent is not obtained and all consents necessary for delivered to Buyer by the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth date noted on Schedule 6.3 8.3 for such Required Consent, and in the event the failure to obtain such consent will have a material negative impact on the Buyer’s net profit realized related to the Business, then the parties shall in good faith negotiate an adjustment to the Purchase Price to compensate the Buyer for such loss of net profit, and shall document such mutual agreement through an amendment to this Agreement; provided, however, in the Disclosure Schedule. All event the Seller obtains such consents Required Consent at any time, then such negotiations of an adjustment to the Purchase Price shall be in writing and executed counterparts thereof shall be delivered promptly to Buyercease. If any such consent shall not be obtainedobtained or if any attempted assignment would be ineffective or would impair Buyer’s rights under the purchased Asset in question so that Buyer would not in effect acquire the benefit of all such rights, Seller Seller, to the maximum extent permitted by Applicable Law and the Asset, shall cooperate act after the Closing as Buyer’s agent in order to obtain for it the benefits thereunder and shall cooperate, to the maximum extent permitted by Applicable Law and the Asset, with Buyer in any other reasonable arrangement designed to provide for Buyer the such benefits intended to be assigned * Certain information on Buyer. Notwithstanding any provision in this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect Section 2.4 to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be madecontrary, Buyer shall not be deemed to have no obligation pursuant waived its rights under Section 8.3 hereof unless and until Buyer either provides written waivers thereof or elects to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not proceed to consummate the transactions contemplated by this Agreement if by proceeding with the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledClosing.
Appears in 1 contract
Third Party Consents. To (a) Seller shall procure that Recipient understands, acknowledges and agrees that certain Services to be provided by Provider may be provided by or through the extent that any Assumed Contract, Intellectual Property or Registration use of unaffiliated third parties on behalf of Provider pursuant to contracts to which Recipient is not assignable without the consent of another partya party (collectively, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder“Third Party Contracts”). Seller shall procure that Recipient also understands, acknowledges and Buyer agrees that the continued participation in such Third Party Contracts by such third parties in providing certain Services may require Provider to obtain additional consents, approvals, permissions or licenses (collectively, “Authorizations”), and that obtaining such Authorizations may involve additional costs, expenses, fees, charges or commissions (“Authorization Expenses”). Seller shall each procure that Provider agrees to use commercially reasonable efforts to seek and obtain the consent of [****]*, any Authorizations necessary pursuant to the extent required, for the assignment of any Assumed such Third Party Contracts to which it provide applicable Services to Recipient; provided, however, that Provider shall not be required to obtain any Authorizations if such Authorizations would require Provider to modify, amend or otherwise alter a Third Party Contract in a manner that, in Provider’s good faith judgment, is a partynot commercially reasonable. Seller shall procure that Recipient pays any Authorization Expenses payable pursuant to this Section 2.10(a).
(b) If, as of the date hereof, there are Third Party Contracts where Authorizations have not been received by Provider, then Purchaser shall procure that Provider (i) continues to use its commercially reasonably efforts to obtain such Authorizations or (ii) at Recipient’s request, uses commercially reasonable efforts to cooperate with Recipient and reasonably assist it to enter into its own agreements with third parties (including identifying and approaching the applicable vendor (or another third party vendor) with whom Recipient shall enter into its own third party contract at a price and upon terms that are mutually agreeable to Recipient and such vendor relating to such Service). If, despite using commercially reasonable efforts, Provider is unable to obtain any an Authorization referred to in this Section 2.11, then unless and all consents until such Authorization is obtained, the Parties will use their commercially reasonable efforts to determine and adopt such alternative approaches as are necessary and sufficient for the effective assignment Provider to and assumption by Buyer provide the applicable Services without such Authorization.
(c) On termination or expiration of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the any Third Party Consents set forth on Attachment 4.2(a) hereto and Contract during the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent Term, Provider shall not be obtainedobligated to continue to provide, or cause the provision of, the applicable Services to which the relevant Third Party Contract relates unless it is able to do so on substantially similar terms as the terminated or expired Third Party Contract, but at Recipient’s request, Purchaser shall procure that Provider acts in good faith to cooperate with Recipient and reasonably assist Recipient to enter into its own agreements with third parties (including identifying and approaching the applicable vendor (or another third party vendor) with whom Seller shall cooperate with Buyer in any reasonable arrangement designed procure that Recipient enters into its own third party contract at a price and upon terms that are mutually agreeable to provide for Buyer the benefits intended Recipient and such vendor relating to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledService).
Appears in 1 contract
Samples: Global Seller Transition Services Agreement (Aviat Networks, Inc.)
Third Party Consents. As set forth in Section 4.2(d), the Sellers are obligated to use their commercially reasonable efforts to obtain the consent or approval from any Person that is a counterparty to a contract identified in the Required Consent Schedule, and the Purchaser’s obligation to close is conditioned upon the receipt of such consents; provided, that in no event shall the Sellers be required to make any expenditure of money or amend the terms of any other agreement between the Sellers and such counterparty to obtain such consent or approval. To the extent that any Assumed Contract, Intellectual Property such consents (or Registration is any similar third-party consents not assignable without listed on the consent Required Consent Schedule) have not been obtained as of another partythe Closing, this Agreement shall and any document delivered pursuant hereto will not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach of an Assumed Contract or would give rise to a valid right of termination thereof or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*and, notwithstanding any provision in this Agreement to the extent requiredcontrary, for the assignment of any such Assumed Contracts to which it is a party. Seller Contract shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall not be in writing and executed counterparts thereof shall be delivered promptly to Buyerdeemed an Acquired Asset. If any such third-party consent shall has not be obtainedobtained on or prior to the Closing Date, Seller the Sellers shall cooperate cooperate, at the Purchaser’s expense, with Buyer in any the Purchaser to establish a reasonable arrangement designed to provide for Buyer the Purchaser with the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant burdens of any such Assumed Contract, Intellectual Property or Registrationincluding appointing the Purchaser to act as its agent to perform all of the Sellers’ obligations under such Assumed Contract and to collect and promptly remit to the Purchaser all compensation received by the Sellers pursuant to such Assumed Contract and to enforce, including enforcement at the cost and for the account and benefit of Buyer of the Purchaser, any and all rights of Seller the Sellers against the any other party thereto person arising out of the breach or cancellation thereof of such Assumed Contract by such other party person or otherwise. If otherwise (any and to all of which arrangements shall constitute, as between the extent Parties hereto, a deemed assignment or transfer); provided, that such arrangement cannot be madefrom and after Closing, Buyer the Sellers shall have no obligation pursuant liability to Section 2.3 the Purchaser in the event that any Assumed Contract requiring consent to assignment hereunder (or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated which by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledterms is non-assignable) is terminated.
Appears in 1 contract
Third Party Consents. To Seller shall use reasonable best efforts to obtain prior to the extent Closing Date all Third Party Consents which the parties mutually agree should be obtained as set forth on Schedule 6.3(a) (the “Required Consents”). Those Third Party Consents that the parties agree not to obtain also shall be set forth on Schedule 6.3(a). If a Third Party Consent (including any Assumed Contract, Intellectual Property or Registration Required Consent) is not assignable without the consent of another partyobtained and delivered at Closing, (i) neither this Agreement nor any action taken hereunder shall not be deemed to constitute an assignment of any such Acquired Asset or an attempted assignment thereof any Contract if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain Contract or result in the loss or diminution of any rights thereunder or acceleration of any obligations thereunder, and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a(ii) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement proposed by Buyer designed to provide for Buyer with the benefits intended of such Acquired Asset and Contract as to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registrationwhich such Third Party Consent relates, including enforcement at the cost and by Seller, for the account and benefit of Buyer Buyer, of any and all rights of Seller against the any other party thereto person arising out of the breach or cancellation thereof of any such Contract by such other party person or otherwise. If This Section 6.3(a) shall not relieve Buyer of its obligations to perform or assume any Assumed Liability or to comply with this Section 6.3. Until such time that a Required Consent is obtained or Buyer notified Seller that it no longer requires that such Required Consent to be obtained, Seller shall use commercially reasonable best efforts, at its own expense, to obtain (and Buyer shall use commercially reasonable efforts to assist Seller, at Buyer’s expense, to obtain) such Required Consent. With respect to each Third Party Consent (including any Required Consent) that is not obtained, Seller agrees that it shall work with Buyer to take all such reasonable action (e.g., acceptance by Buyer of an appointment as agent-in-fact, subcontractor, joint venturer or assignee for Seller and/or Shareholders) and do or cause to be done such things as shall be reasonable or proper to assure that (i) Buyer will receive all of the rights and benefits of Seller associated with such Acquired Asset or Contract to which such Third Party Consent relates (including, without limitation, any rights to payments thereunder) (the “Unassigned Rights”), and (ii) Buyer shall assume and be responsible for all of the obligations and liabilities associated with such Acquired Asset or Contract to which such Third Party Consent relates which would have been an Assumed Liability if it had been assigned to Buyer (the “Unassigned Obligations”). Buyer shall indemnify, defend and hold Seller and the Shareholders harmless from any Losses arising out of or related to Buyer’s failure to perform any of the Unassigned Obligations (except for those Unassigned Obligations that Buyer is unable to perform due to the extent acts or omissions of Seller, and except for those Unassigned Obligations that such arrangement cannot be madeare materially changed to the detriment of Buyer due to the acts or omissions of Seller). Seller, jointly, and each Shareholder, severally, shall indemnify, defend and hold Buyer shall have no obligation pursuant harmless from any Losses arising out of or related to Section 2.3 Seller’s acts or otherwise omissions with respect to the Unassigned Rights and Unassigned Obligations. Seller covenants and agrees that it shall not agree to any modification of any Unassigned Rights or Unassigned Obligation with out the express written consent of Buyer. Seller further acknowledges and agrees that Buyer shall not be obligated to perform any Unassigned Obligations that are materially changed to the detriment of Buyer due to the acts or omissions of Seller, but rather, shall be entitled to cause such Assumed Contract, Intellectual Property or RegistrationUnassigned Obligation to revert to Seller. The indemnification obligations set forth in this Section 6.3(a) shall be subject to the terms and provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilled.Article IX hereof. 4416103v.8
Appears in 1 contract
Third Party Consents. To (a) Notwithstanding anything in this Agreement to the contrary, to the extent that any Assumed Contract, Intellectual Property Contract included in the Purchased Assets may not be properly assigned or Registration is not assignable transferred without the consent of another a third party, or if the assignment or attempted assignment of any such Contract would constitute a violation or breach thereof or a violation of any law, nothing in this Agreement shall not will constitute an assignment or an attempted assignment thereof if such assignment and, except as provided for in Section 3.3(c), Purchaser will not be deemed to assume any liabilities or attempted assignment would constitute a breach thereof or a default thereunderobligations thereunder until properly assigned. The Seller Companies and Buyer shall each the Purchaser Companies will use commercially reasonable efforts to obtain the consent any such consents; provided, however, that commercially reasonable efforts shall not include any requirement of [****]*, any Party to commence any litigation or offer or grant any accommodation (financial or otherwise) to any other Person.
(b) To the extent requiredthat the consents described in Section 3.3(a) are not obtained prior to Closing, for each of the assignment of any Assumed Contracts to which it is a party. Seller shall Companies will use its commercially reasonable efforts to obtain any and all consents necessary for (i) provide the effective assignment to and assumption by Buyer applicable Purchaser Company with the economic benefits of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtainedContract until its termination date, Seller shall (ii) cooperate with Buyer in any reasonable lawful arrangement designed to provide for Buyer the such benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contractapplicable Purchaser Company and (iii) enforce, Intellectual Property or Registration, including enforcement at the cost request of and for the account of Buyer the applicable Purchaser Company at its expense, any rights of such Seller Company arising from any such Contract against any third party, including the right to elect to terminate such Contract in accordance with the terms thereof upon the advice of Purchaser. The failure or inability to obtain any consent subject to this Section 3.3(b) will not be a breach of this Agreement so long as the Seller Companies have carried out their obligations under this Section 3.3(b).
(c) To the extent that a Purchaser Company is provided the benefits of any Contract pursuant to Section 3.3(b), Purchaser will perform or cause its Affiliates to perform the obligations of the applicable Seller Company thereunder or in connection therewith, at no cost to such Seller Company, including reimbursing the applicable Seller Company for rent and other costs for any such Contract for Leased Real Property, but only to the extent (i) that such action by Purchaser would not result in any default thereunder or in connection therewith and (ii) such performance pertains to the benefits provided to a Purchaser Company. The Purchaser Companies will indemnify the Seller Companies against any and all rights of Seller against the other party thereto Losses (as defined in Section 8.1) arising out of any default by a Purchaser Company in the breach or cancellation thereof by performance of such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registrationobligations. The provisions indemnification of the Seller Companies under this Section 2.7 shall not affect 3.3 will be governed by the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained indemnification provisions set forth in Section 9.1 has not been fulfilledArticle VIII hereto.
Appears in 1 contract
Third Party Consents. To the extent that any Assumed Contract, Intellectual Property or Registration Contract is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Purchaser and Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, such other party to the extent required, for the assignment of any such Assumed Contracts Contract to Purchaser in all cases in which it such consent is or may be required for such assignment or, in the alternative, a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyerreplacement contract. If any such consent or replacement contract shall not be obtained, Seller shall cooperate with Buyer Purchaser in any reasonable arrangement designed to provide for Buyer Purchaser the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer Purchaser under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be mademade to the satisfaction of Seller and Purchaser, Buyer shall Purchaser may, at its option, either (i) waive the conditions to closing set forth in Section 6.07 and proceed to consummate the transactions contemplated by this Agreement or (ii)(A) if the Assumed Contract at issue is the Crazy Moose II Lease, the lease for the parking facility located at 000 Xxxxx 00xx Xxxxxx, Xxxxx, Xxxxxxxxxx (the “Parking Facility Lease”), or the agreements for the card shufflers listed in Section 2.17(a) of the Disclosure Schedule (the “Card Shuffler Agreements”)(solely in the event that the card shufflers described therein have no obligation pursuant not been purchased by Seller prior to Section 2.3 Closing and included within the Assets) or otherwise (B) in the event that in excess of 10% of the Table Game Licenses are not assigned to Purchaser or replaced with respect to any such Assumed Contractnew and substantially similar contracts by Closing, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer elect not to consummate the transactions contemplated by this Agreement in accordance with Section 6.07 as a result of Seller’s failure to fulfill the closing condition; provided, however, if Purchaser elects to consummate the condition transaction under clause (i) above, Purchaser shall indemnify and hold Seller harmless from any and all Losses resulting from the failure to its obligations hereunder contained in Section 9.1 has not been fulfilledobtain such consent.
Appears in 1 contract
Samples: Asset Purchase Agreement (Nevada Gold & Casinos Inc)
Third Party Consents. To the extent that any Assumed Real Property Lease, Personal Property Lease, Business Contract, Intellectual Property Confidentiality Agreements or Registration Business License is not assignable to any of the AC Venture Companies without the consent of another partyPerson that is a party thereto, this Agreement ADA-ES shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use its commercially reasonable efforts to obtain the consent of [****]*, such other party to the extent required, for the assignment of any Assumed Contracts such Real Property Lease, Personal Property Lease, Business Contract or Business License to the applicable AC Venture Company in all cases in which it such consent is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary required for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyerassignment. If any such consent shall not be obtained, Seller ADA-ES and its Affiliates shall (i) continue to be bound thereby, (ii) cooperate with Buyer each AC Venture Company in any reasonable arrangement designed to provide for Buyer to such AC Venture Company the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer such AC Venture Company under the relevant Assumed ContractReal Property Lease, Intellectual Personal Property Lease, Business Contract or RegistrationBusiness License, including enforcement at the cost and for the account of Buyer of any and all any rights of Seller ADA-ES and its Affiliates against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwiseotherwise and (iii) enforce at the ECP Parties’ request, any rights of ADA-ES and its Affiliates under any such Real Property Lease, Personal Property Lease, Business Contract or Business License 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 ECP Parties). If ADA-ES, without further consideration therefor, and without right of set-off, shall pay and remit to the extent appropriate AC Venture Company promptly all monies, rights and other considerations received in respect of such performance; provided that, the respective AC Venture Company shall reimburse ADA-ES for the direct, out-of-pocket costs reasonably incurred by ADA-ES after the Closing in performing ADA-ES’s obligations under such Contracts that such arrangement cannot be made, Buyer assigned. Each of the AC Venture Companies shall have no obligation pursuant use commercially reasonable efforts to Section 2.3 or otherwise with respect to perform any portion of any such Assumed Contractlease, Intellectual Property Contract or Registration. The provisions license of which the benefits are being provided to such AC Venture Company in accordance with this Section 2.7 shall not affect 1.8 to the right same extent required of Buyer not to consummate the transactions contemplated by this Agreement if the condition to ADA-ES or its obligations hereunder Affiliates in such lease, Contract or license. Nothing contained in this Section 9.1 has not been fulfilled1.8 shall limit or impair the ECP Parties’ rights in Section 7.3 (Conditions to Obligations of the ECP Parties).
Appears in 1 contract
Third Party Consents. To the extent that any Assumed Contract, Intellectual Property or Registration Transferred Asset is not assignable capable of being conveyed, assigned or transferred without the consent consent, release or waiver of another any third party, the Seller agrees to use commercially reasonable efforts to obtain such consent, release or waiver. To the extent such consent, release or waiver cannot be obtained, this Agreement shall not constitute an a conveyance, assignment or transfer, or an attempted assignment thereof if such conveyance, assignment or attempted assignment would constitute a breach thereof transfer thereof. In those cases where consents, releases or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, waivers have not been obtained at or prior to the extent requiredEffective Date to the conveyance, assignment or transfer to Interland of such Transferred Assets, this Agreement shall constitute an equitable assignment by the Seller to Interland of all of the Seller's rights, benefits, title and interest in and to such Transferred Assets, and where necessary or appropriate, the Seller shall be deemed to be Interland's agent for the assignment purpose of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any completing, fulfilling and discharging all consents necessary for of Interland's rights and liabilities arising after the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested Effective Date with respect to such Transferred Assets. The Seller shall take all steps and actions reasonably necessary to provide Interland with the omitted portions. to Buyer under the relevant Assumed Contractbenefit of such Transferred Assets (including, Intellectual Property or Registrationbut not limited to, including enforcement at the cost and for the account of Buyer of (i) enforcing any and all rights of the Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed ContractTransferred Assets (including, Intellectual Property without limitation, the right to terminate in accordance with the terms thereof upon the advice of Interland) or Registration(ii) permitting Interland to enforce any rights arising with respect to such Transferred Assets) as if they had been sold, conveyed, assigned or transferred to Interland. The provisions Interland shall assume, and indemnify and hold Seller harmless against, all liabilities, obligations, cost and expenses with respect to and which may arise out of actions taken by Seller at the request of Interland in order to provide Interland with the benefits of such Transferred Assets or the servicing of the Accounts or the receipt of the services under any agreement comprising such Transferred Assets; provided, however that Seller shall be liable for all third-party liabilities, obligations, cost and expenses arising out of a claim by a third-party that the actions of Seller taken pursuant to this Section 2.3 constituted an improper assignment of the Transferred Asset (an "Assignment Claim"). For purposes of this Section 2.7 Agreement, any Assignment Claim shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledbe deemed an Assumed Liability.
Appears in 1 contract
Third Party Consents. To Anything to the contrary in this Agreement notwithstanding, to the extent that the sale, assignment, conveyance or transfer of any Assumed Purchased C Asset, Assigned Engagement or Assigned C Contract, Intellectual Property or Registration is not assignable without the transactions contemplated by the Service Agreement, requires the consent of another a third party, this Agreement shall not constitute an assignment agreement to effect such sale, conveyance, transfer or an attempted assignment thereof assignment, or sublease, if such assignment or attempted assignment action would constitute a breach or violation thereof or a default adversely affect Buyer's rights thereunder. Seller and Buyer shall each Sellers agree to use commercially reasonable efforts (with no obligation to pay any fee to any third party for the purpose of obtaining any consent or approval or any costs and expenses of any third party resulting from the process of obtaining such consent or approval) to obtain such consents (which shall be in form and substance reasonably satisfactory to Buyer) prior to the Initial Closing Date or the applicable Subsequent Closing Date in accordance with this Agreement. To the extent that any such consent is not obtained prior to the Initial Closing Date or the applicable Subsequent Closing Date, Sellers shall use commercially reasonable efforts (with no obligation to pay any fee to any third party for the purpose of [****]*obtaining any consent or approval or any costs and expenses of any third party resulting from the process of obtaining such consent or approval) to (A) obtain any such consent after the Initial Closing Date or such Subsequent Closing Date, (B) to the extent requiredreasonably practicable, enter into or facilitate lawful arrangements reasonably acceptable to Buyer and Sellers such Purchased C Asset, Assigned Engagement or Assigned C Contract for the assignment of any Assumed Contracts which with respect to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall or waiver has not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed been obtained to provide for or cause to be provided to Buyer the benefits intended of and to allocate the Liabilities for, such Purchased C Asset, Assigned Engagement or Assigned C Contract, as though the requisite consent or waiver had been obtained as of the Initial Closing Date or such Subsequent Closing Date, and (C) pay, defend, indemnify and hold Buyer harmless from any Liability suffered by Buyer as a result of any failure of Sellers to obtain such consent whether before or after the Initial Closing Date or any assertion by a third party that any arrangement contemplated by clause (B) constitutes a breach or violation of such third party's rights. Notwithstanding anything to the contrary contained herein, the Company shall be assigned * Certain information on this page has been omitted obligated to pay to the applicable landlord under the Service Agreement or any Assumed Lease any amounts specified in such lease as due and filed separately owing in connection with the Sec. Confidential treatment has been requested consents necessary in connection with respect to such assignment or the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account use of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions space as contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledService Agreement, as applicable.
Appears in 1 contract
Samples: Asset Purchase Agreement (Oppenheimer Holdings Inc)
Third Party Consents. To (a) Seller shall, at Seller's cost and expense, obtain prior to the Closing any and all consents necessary for the valid and binding assignment of the Assumed Contracts and Leases to Buyer. All such consents will be in writing and in form and substance reasonably satisfactory to Buyer (including without limitation economic terms and conditions that are no less favorable to Buyer than currently exist for Seller), and executed counterparts thereof will be delivered to Buyer no later than the Closing.
(b) Subject to the provisions of SECTION 6.18(a) above, to the extent that the assignment or sublease of any Assumed Contract, Intellectual Property Contract or Registration is not assignable without Lease requires the consent of another a third party, this Agreement shall not constitute an assignment agreement to assign or sublease the same if an attempted assignment thereof if such assignment or attempted assignment sublease thereof, without the consent of a third party thereto, would constitute a breach thereof or a default thereunder. thereof, but Seller and Buyer shall each use its commercially reasonable best efforts to obtain the consent of [****]*, such other parties to all such contracts to the extent requiredassignment or sublease thereof to Buyer prior to the Closing Date; if such Consent is not obtained or is obtainable only upon payment by Seller of amounts not otherwise required to be paid under the terms of such contract, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall will cooperate with Buyer Seller in any reasonable arrangement which is designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant any such Assumed Contract, Intellectual Property Contract or Registration, Lease including enforcement for the benefit of Buyer at the cost and for the account sole expense of Buyer Seller, of any and all rights of Seller against the other any third party thereto arising out of the breach failure or cancellation thereof by refusal of such other third party to consent to such assignment or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledsublease.
Appears in 1 contract
Third Party Consents. To Unless otherwise agreed to in writing by Buyer, and except for those Third Party Consents identified on Schedule 2.3(b) as Commercially Reasonable Efforts Consents, Sellers shall obtain prior to the extent that Closing Date all other Third Party Consents including Best Efforts Consents. Sellers shall commence the process of obtaining the Best Efforts Consents promptly after the Effective Date and shall (i) provide to Buyer a written report on the status of each Best Efforts Consent every two weeks between the Effective Date and the Closing Date, (ii) provide Buyer with a copy of all correspondence with third parties regarding Best Efforts Consents, and (iii) shall notify the Buyer promptly of any Assumed Contract, Intellectual Property or Registration refusal by a third party to provide a Best Efforts Consent. If a Third Party Consent is not assignable without obtained and delivered at Closing, and Buyer waives in writing the consent of another partyrequirement to deliver such Consent at Closing (provided that Commercially Reasonable Efforts Consents and Best Efforts Consents shall not be a condition to Closing), then as to each such Third Party Consent that is not delivered at Closing, (i) neither this Agreement nor any action taken hereunder shall not be deemed to constitute an assignment of any Asset or an attempted assignment thereof any Assigned Contract if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain Assigned Contract or result in the loss or diminution of any rights thereunder or acceleration of any obligations thereunder, and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a(ii) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller Sellers shall cooperate with Buyer in any reasonable arrangement proposed by Buyer designed to provide for Buyer with the benefits intended of the Asset or Assigned Contract as to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registrationwhich such Third Party Consent relates, including enforcement at the cost and by Sellers, for the account and benefit of Buyer Buyer, of any and all rights of Seller Sellers against the any other party thereto person arising out of the breach or cancellation thereof of any such Assigned Contract by such other party person or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilled.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Kindred Healthcare, Inc)
Third Party Consents. To the extent that any Assumed Contract, -------------------- Contract or Intellectual Property Rights for which assignment or Registration license to Purchaser is provided for herein is not assignable or licenseable without the consent of another party, this Agreement and any other Operative Agreement shall not constitute an assignment or license or an attempted assignment or license thereof if such assignment or license or attempted assignment or license would constitute a breach thereof or a default thereunderthereof. Seller and Buyer shall each agrees to use commercially reasonable commercial efforts to obtain the consent of [****]*, such other party to the extent required, assignment or license of any such Assumed Contract or Intellectual Property Rights to Purchaser and any consent required by Seller for the assignment entry into of any Real Property Contract in all cases in which such consent is or may be required therefor; provided, however, Seller shall not be obligated to make any unreimbursed expenditures in connection therewith (other than routine administrative costs and any expenditures that would be required in respect of any period ending on or prior to the Closing Date pursuant to the terms of such Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for or Intellectual Property Rights in the effective absence of such assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyeror license). If any such consent shall not be obtained, Seller shall agrees to cooperate with Buyer Purchaser in any reasonable arrangement designed to provide for Buyer Purchaser the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect or licensed to the omitted portions. to Buyer Purchaser under the relevant Assumed Contract, Contract or Intellectual Property Rights or Registrationcreated by the relevant Real Property Contract, including enforcement at the cost and for the account of Buyer Purchaser of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer Purchaser shall not have no any obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property Rights or RegistrationReal Property Contract. The provisions This Section 2.05 does not diminish or constitute a waiver or modification of this Seller's representations and warranties as to the assignability of Contract rights included in the Assets or of Purchaser's right pursuant to Section 2.7 shall not affect the right of Buyer 7.04 not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledAgreement.
Appears in 1 contract
Samples: Network Purchase Agreement (Telco Communications Group Inc)
Third Party Consents. To (a) Seller shall give all notices to Governmental Entities and any other Person required to be given by it under the extent that any Assumed ContractMaterial Acquired Contracts or otherwise in connection with the transactions contemplated hereby. In order to facilitate the orderly assignment and transfer of all rights and privileges necessary to own and operate the Business, Intellectual Property or Registration is not assignable without and to facilitate the consent securing of another partyall Consents, other than with respect to the New Franchise, Seller shall proceed after the execution of this Agreement shall not constitute an assignment or an attempted assignment thereof if to prepare, file and prosecute each request and application therefor together with such assignment or attempted assignment would constitute a breach thereof or a default thereunderinformation as may be necessary and appropriate to effect such Consents. Seller shall on a timely basis cooperate and work with Buyer shall each use commercially reasonable efforts to obtain all other Consents from the appropriate Third Party. Seller shall consult with Buyer and provide Buyer and its agents with the opportunity to review and comment with respect to all notices, filings, submissions and consent of [****]*, solicitations made in connection with securing any Consents prior to delivery to the extent requiredThird Party whose consent is sought, for and at Buyer’s reasonable request, Seller shall discuss with such Third Party any suggestions made by Buyer with respect to the assignment substance of any Assumed Contracts to which it is a party. such notices, filings, submissions and consent solicitations.
(b) Seller shall use its commercially reasonable efforts to obtain all Consents as expeditiously as possible and, to the extent not obtained by the Closing, Seller shall continue to use its commercially reasonable efforts to obtain such Consents for six months after the Closing. During this six-month time period and pending or in the absence of any such Consent, the Parties shall cooperate with each other in any reasonable and all consents necessary for lawful arrangements to provide to Buyer the effective assignment benefits and liabilities of use of such Acquired Contract. Without Buyer’s prior written consent, no such Consent shall (at such time or in the future) impose any additional adverse restrictions or obligations on Buyer, other than as described in Section 8.1, or include any adverse change to and assumption by Buyer the terms or benefits of the Assumed Contractsunderlying instrument other than immaterial restrictions, the Intellectual Propertyobligations or changes. If, the Registrations notwithstanding their commercially reasonable efforts, Buyer and the Assumed LiabilitiesSeller are unable to obtain such Consents, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent Seller shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. liable to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out breach of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, covenants set forth in this Section 7.6 (but Buyer shall have no obligation pursuant to effect the Closing unless the condition set forth in Section 2.3 10.3 hereof shall have been satisfied or otherwise waived). Notwithstanding anything to the contrary contained in this Agreement, nothing herein shall require Seller to pay any funds (other than its usual or customary attorneys fees, consulting fees, filing fees or other normal costs of doing business) or to give any other consideration in order to obtain any Consent, provided, however, that Seller shall be solely responsible for and shall pay all fees imposed by a Governmental Entity incurred in connection with obtaining the Consents, other than any fees imposed by the Franchising Authority or anyone acting on its behalf in connection with the New Franchise which shall be solely the responsibility of Buyer.
(c) Seller shall use commercially reasonable efforts to cooperate fully with Buyer in Buyer’s efforts to obtain the New Franchise and will help to arrange and facilitate Buyer’s negotiations with the Franchising Authority or any other Governmental Entity and other Third Parties with respect to the New Franchise.
(d) Seller may elect, in its sole discretion, to satisfy any monetary obligation imposed by a contract party by reducing the Purchase Price by the amount thereof, as determined by the mutual agreement of Buyer and Seller, each acting reasonably (in which case the amount of such monetary obligation shall be paid by Buyer).
(e) Seller shall, at its sole cost and expense, obtain new Permits with respect to any railroad crossings necessary for the continued placement of the System’s distribution facilities as in place at Closing (the “Railroad Permits”), which Railroad Permits shall either be on the standard form used by such Assumed Contract, Intellectual Property railroad or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not otherwise in form and substance reasonably acceptable to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledBuyer.
Appears in 1 contract
Third Party Consents. To Notwithstanding any other provisions of this Agreement, to the extent that any Assumed Contract, Intellectual Property or Registration is of the Purchased Assets to be conveyed under Section 1.1 are not assignable or transferable without the consent of another partyparty (including any governmental authority) and such consent has not been obtained, this Agreement shall not constitute an assignment or transfer or an attempted assignment thereof or transfer of such Purchased Assets if such assignment or transfer or attempted assignment or transfer would constitute a breach thereof or a default thereunderthereof. Seller and Buyer shall each agrees to use commercially reasonable its best efforts to obtain the consent of [****]*such other party to such an assignment or transfer as promptly as practicable. In those cases where consents, releases or waivers have not been obtained to the extent requiredsale, conveyance, assignment or transfer to Buyer of such Purchased Assets, this Agreement shall constitute an equitable assignment by Seller to Buyer of all of Seller's rights, benefits, title and interest in and to such Purchased Assets, and where necessary or appropriate, Seller shall be deemed to be Buyer's agent for the assignment purpose of any Assumed Contracts completing, fulfilling and discharging all of Buyer's rights and liabilities arising after the date hereof with respect to which it is a partysuch Purchased Assets. Seller shall use its commercially reasonable efforts to obtain any take all necessary steps and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed actions to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contractbenefit of such Purchased Assets (including, Intellectual Property or Registrationbut not limited to, including enforcement at the cost and for the account of Buyer of (i) enforcing any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed ContractPurchased Assets (including without limitation the right to terminate in accordance with the terms thereof upon the advice of Buyer) or (ii) permitting Buyer to enforce any rights arising with respect to Purchased Assets) as if they had been sold, Intellectual Property conveyed, assigned or Registrationtransferred to Buyer. The provisions Buyer shall, to the extent Buyer is provided with the benefits of such Purchased Assets, assume, perform and in due course pay and discharge all debts, obligations and liabilities of Seller with respect to such Purchased Assets. If and so long as Seller is acting as Buyer's agent pursuant to this Section 2.7 shall not affect 1.6, Buyer will indemnify and hold harmless Seller, its directors, officers and employees against any liabilities and obligations incurred by any of them in connection with Seller's continued performance as such agent, including the right payment of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledany associated Assumed Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Golden State Bancorp Inc)
Third Party Consents. Purchaser acknowledges that the 363/365 Order will authorize the assumption and assignment of the Assigned Contracts without the requirement of any consent by the parties thereto. To the extent that any Assumed Contract, Intellectual Property or Registration Assigned Contract is not assumable and assignable by Sellers to Purchaser under section 365 of the Bankruptcy Code without the consent of another partythe parties thereto, this Agreement Sellers and Purchaser shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use their commercially reasonable efforts prior to Closing to obtain the consent all such required consents of [****]*, to the extent required, for the assignment of any Assumed Contracts to third parties which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents are necessary for the effective assignment to and assumption by Buyer consummation of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Scheduletransactions contemplated hereby (without conditions materially adverse to Purchaser). All such third-party consents shall be in writing and executed counterparts thereof shall be delivered to Purchaser promptly after Sellers’ receipt thereof but in no event later than two (2) Business Days prior to Buyerthe Closing Date. Notwithstanding the foregoing or anything contained herein to the contrary, this Agreement shall not constitute an agreement to assign any Personal Property Lease, Business Contract or Business License or any claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party thereto, would constitute a default thereof or in any way materially adversely affect the rights of Purchaser thereunder. If such consent is not obtained, or if an attempted assignment thereof would be ineffective or would affect the rights thereunder so that Purchaser would not receive all such rights, Sellers shall use their commercially reasonable efforts after Closing to provide to Purchaser the benefits under any such consent shall not be obtainedPersonal Property Lease, Seller shall cooperate with Buyer in Business Contract or Business License or any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contractclaim or right, Intellectual Property or Registrationincluding, including without limitation, enforcement at the cost and for the account benefit of Buyer Purchaser of any and all rights of Seller against the other a third party thereto arising out of the breach default or cancellation thereof by such other third party or otherwise. If and Sellers’ failure to obtain any of the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 consents referenced in the preceding sentence (other than those listed in Schedule 6.06) shall not affect the right of Buyer not relieve Purchaser from its obligation to consummate the transactions contemplated by this Agreement if all of the condition to its obligations hereunder contained conditions set forth in Section 9.1 has not Article VIhave been fulfilled.
Appears in 1 contract
Samples: Asset Purchase Agreement (Gaiam Inc)
Third Party Consents. (i) Prior to the Closing, except as otherwise agreed by the Parties (including in Section 8.5), each Party shall cooperate with the other and use commercially reasonable efforts to obtain all Third-Party Consents reasonably necessary in connection with the consummation of the transactions contemplated by this Agreement or the Ancillary Agreements, including the Third-Party Consents set forth in Section 7.4(b)(i) of the Business Disclosure Schedule; provided, that neither Party shall be required to commence or participate in litigation to obtain any such Third-Party Consent. To the extent the Parties reasonably determine they will not be able to obtain any Third-Party Consent set forth on Section 9.5 of the Buyer Disclosure Schedule by the Termination Date, the Parties shall use commercially reasonable efforts to explore and implement a commercially reasonable alternative that would be to the reasonable satisfaction of Buyer. If the costs of any such commercially reasonably alternative arrangement exceed the costs that would have been incurred had the applicable Third-Party Consent been obtained, such excess costs shall be governed by Section 7.4(b)(iii) and shall be counted as Third-Party Consent costs thereunder.
(ii) To the extent that any Assumed Contract, Intellectual Property Acquired Asset may not be transferred or Registration is assigned to Buyer without a Third-Party Consent that has not assignable without been obtained by the consent of another partyClosing, this Agreement shall not constitute an assignment agreement to transfer or assign the same if an attempted assignment thereof if such assignment transfer or attempted assignment would constitute a breach or other contravention thereof or would be ineffective or unlawful. If, on the Closing Date, any Third-Party Consent required to effect the transfer of any Acquired Asset to Buyer is not obtained, or if an attempted transfer or assignment thereof would be ineffective or unlawful, then the Parties shall reasonably cooperate to come to a default thereunder. Seller mutually agreeable arrangement in compliance with Applicable Law pursuant to which, until the earlier of (i) such time as any Third-Party Consent is obtained therefor and the same is sold and assigned to Buyer pursuant to an assignment and assumption agreement (or such earlier time as may be specified by Buyer, as applicable, in writing to Sellers in the sole discretion of Buyer) or (ii) the earlier of
(A) the three (3) year anniversary of the Closing and (B) the time at which such Acquired Asset would no longer have been available to Sellers or their Affiliates pursuant to Contracts in effect on the Closing Date: (1) such Acquired Asset would be held, from and after the Effective Time, by Sellers or the applicable GWLA Subsidiary in trust for the benefit of Buyer and all benefits and obligations existing thereunder would be for the account of Buyer and Buyer would obtain the benefits and assume the obligations and bear the economic burdens associated with such Acquired Asset in accordance with this Agreement; (2) Buyer would timely pay, perform or otherwise discharge (in accordance with the respective terms and subject to the respective conditions thereof, and in the name of Sellers or the applicable GWLA Subsidiary) all of the covenants and obligations of Sellers or the applicable GWLA Subsidiary incurred after the Effective Time with respect to such Acquired Asset; and (3) Sellers would, and GWLA would cause the applicable GWLA Subsidiary to, take or cause to be taken such actions in its name or otherwise as Buyer may reasonably request so as to provide Buyer with the benefits of such Acquired Asset and to effect the collection of money or other consideration that becomes due and payable under such Acquired Asset, and would promptly pay over to Buyer all money or other consideration received by it in respect of such Acquired Asset. From and after the Closing Date for so long as the Transition Services Agreement remains in effect, the Parties shall each continue to use commercially reasonable efforts to obtain, as promptly as practicable, any such required Third-Party Consents that have not been obtained as of the Closing Date; provided, that neither Party shall be required to commence or participate in litigation to obtain the consent of [****]*any such Third-Party Consent.
(iii) Sellers and Buyer shall each bear their own and their respective Affiliates’ internal costs to obtain such Third-Party Consents. Any out-of-pocket costs, to the extent requiredwhether incurred before or after Closing (including any license or other fees and expenses and, for the assignment avoidance of doubt, all Consent Costs (as defined in the Transition Services Agreement)), associated with obtaining any Assumed Contracts Third-Party Consent (other than any such consent arising from Buyer or a Reinsurer providing services under the Administrative Services Agreement or the Retained Business Administrative Services Agreement, which shall be borne by Buyer) or obtaining rights to replace any related assets shall be borne fifty percent (50%) by Buyer and fifty percent (50%) by Sellers until Buyer has incurred $2,500,000 of such costs, in the aggregate, after which it is a party. Seller Sellers shall use its bear 100% of such costs.
(iv) In connection with seeking any Third-Party Consents relating to minimum retention requirements under Existing Reinsurance Agreements, “commercially reasonable efforts efforts” for purposes of this Section 7.4(b) shall not be deemed to obligate a Seller or any of its Affiliates to make any payments or otherwise pay any consideration to any Person in connection with any such Third-Party Consents. If the Parties reasonably determine that such a Third-Party Consent is not likely to be obtained, then the Parties will negotiate in good faith the proposed treatment of the relevant Existing Reinsurance Agreement, including the possibility of terminating, recapturing or novating the same. If, prior to the Closing Date, all of the reinsurers under each of the relevant Existing Reinsurance Agreements have executed and delivered to a Seller or any of its Affiliates a letter or other document evidencing their consent to, or irrevocable waiver of all restrictions contained in such Existing Reinsurance Agreements relating to, the reinsurance of the Covered Insurance Policies as contemplated under the applicable Reinsurance Agreement, then the parties shall update the form of Reinsurance Agreement to remove the provisions relating to the treatment of non-consenting reinsurers. From and after the Closing Date, Sellers shall promptly notify Buyer if any such reinsurer notifies a Seller or its applicable Affiliates in writing that it will not consent to such reinsurance or waive any such restrictions.
(v) Notwithstanding anything in this Section 7.4(b) to the contrary, the failure to obtain any and all consents necessary for the effective assignment Third-Party Consent shall not (x) constitute a failure to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents satisfy any condition set forth on Attachment 4.2(ain Article IX or Article X or (y) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If otherwise relieve any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no Person from its obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledhereby.
Appears in 1 contract
Samples: Master Transaction Agreement (Protective Life Insurance Co)
Third Party Consents. To Buyer and Seller shall use commercially reasonable efforts to obtain any third-party consents, approvals or waivers required under the extent Assigned Contracts in connection with the consummation of the Transactions; provided, however, that no Party shall be obligated to (i) make any Assumed Contractpayment to any third party to obtain any consent under this Section 6.2(a) other than normal and usual processing fees, Intellectual Property filing fees or Registration other similar normal costs incurred in connection with such third-party consent or approval or (ii) grant any accommodation (financial or otherwise) to any third party in connection with obtaining such third- party consent, approval or waiver. Notwithstanding anything to the contrary herein, this Agreement and the consummation of the Transactions shall not be construed as an attempt or agreement to assign any Contract or rights thereunder or other right that, by its terms or by applicable Law, is not assignable without the consent of another partya third party or is cancelable by a third party in the event of an assignment, this Agreement unless and until such consent shall have been obtained. To the extent that any Assigned Contract cannot constitute an assignment or an attempted assignment thereof if be assigned without consent and such assignment or attempted assignment would constitute a breach thereof or a default thereunder. consent is not obtained prior to the Closing, Seller shall use reasonable best efforts to provide to Buyer the benefits of any such Assigned Contract and Buyer shall each use commercially reasonable efforts perform or discharge on behalf of Seller all obligations and liabilities under such Assigned Contract that constitute Assumed Liabilities. In addition to obtain the consent of [****]*, Buyer’s obligations pursuant to the extent requiredforegoing sentence, for as to any Assigned Contract that is not effectively assigned to Buyer as of the assignment of any Assumed Contracts Closing Date but is thereafter effectively assigned to which it is a party. Seller shall use its commercially reasonable efforts to obtain any Buyer, Buyer shall, from and all consents necessary for after the effective assignment to date of such assignment, assume, and assumption by Buyer of the shall thereafter pay, perform and discharge as and when due, all Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights Liabilities of Seller against the other party thereto or any of its Affiliates arising out of the breach or cancellation thereof by under such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Assigned Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilled.
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Third Party Consents. To (a) Notwithstanding anything in this Agreement to the contrary, to the extent that (i) any Assumed Contract, Intellectual Property Business Commitment may not be properly assigned or Registration is not assignable transferred without the consent of another a third-party, or if the assignment or attempted assignment of any Business Commitment, or the transfer, attempted transfer or deemed transfer of any Acquired Asset or Business Commitment would constitute a violation or breach of any Business Commitment or a violation of law, nothing in this Agreement shall not will constitute an assignment or an attempted assignment or deemed assignment thereof if and Purchaser will not assume or be deemed to assume any obligations thereunder or in connection therewith until properly assigned or transferred. In any such assignment or attempted assignment would constitute case, commencing on the Closing Date and for a breach thereof or a default thereunder. period of 12 months thereafter, Seller and Buyer shall each Purchaser will use commercially reasonable efforts to obtain the consent of [****]*any such consents, to and Seller will be liable for any costs incurred in obtaining such consents.
(b) To the extent requiredthat the consents described in Section 4.5 are not obtained prior to Closing, for the assignment of any Assumed Contracts to which it is a party. Seller shall will use its commercially reasonable efforts to obtain any and all consents necessary for (i) provide Purchaser with the effective assignment to and assumption by Buyer economic benefits of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtainedAcquired Asset or Business Commitment until its termination date, Seller shall (ii) cooperate with Buyer in any reasonable lawful arrangement designed to provide for Buyer the such benefits intended to be assigned * Certain information on this page has been omitted Purchaser and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract(iii) enforce, Intellectual Property or Registration, including enforcement at the request and cost of and for the account of Buyer of Purchaser, any and all rights of Seller arising from any such Acquired Asset or Business Commitment against any third party, including the other party thereto arising out right to elect to terminate in accordance with the terms thereof upon the advice of Purchaser.
(c) To the breach extent that Purchaser is provided the benefits of any Acquired Asset or cancellation thereof by such other party Business Commitment pursuant to Section 4.5(a), Purchaser will perform the obligations of Seller thereunder or otherwise. If and in connection therewith, at no cost to Seller, but only to the extent (i) that such arrangement canaction by Purchaser would not be made, Buyer shall have no obligation pursuant result in any default thereunder or in connection therewith and (ii) such performance pertains to Section 2.3 or otherwise with respect the benefits provided to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledPurchaser.
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Third Party Consents. Subject to Section 6.08(a) and Section 6.08(d), Seller, with Buyer’s reasonable cooperation, shall use reasonable best efforts to give all notices to, and obtain all consents from all third parties that are described on Section 4.04 of the Disclosure Schedules. To the extent that Seller’s or its Subsidiaries’ rights under any Assumed ContractContract constituting a Purchased Asset, Intellectual Property or Registration is any other Purchased Asset, may not assignable be assigned to Buyer without the consent of another partyPerson which has not been obtained prior to the Closing, this Agreement shall not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. be unlawful, and Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*shall, to the extent requiredat Seller’s expense, for the assignment of any Assumed Contracts to which it is a party. Seller cooperate in good faith and shall use its commercially their respective reasonable best efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(asuch required consent(s) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered as promptly to Buyeras possible. If any such consent shall not be obtainedobtained or if any attempted assignment would be ineffective or would impair Buyer’s rights under the Purchased Asset in question so that Buyer would not in effect acquire the benefit of all such rights, Seller or its Subsidiaries, as applicable, to the maximum extent permitted by Law and the Purchased Asset, shall cooperate act after the Closing at Seller’s sole cost and expense, as Buyer’s agent in order to obtain for Buyer the benefits thereunder and shall cooperate, to the maximum extent permitted by Law and the Purchased Asset, with Buyer in any other reasonable arrangement designed to provide for Buyer the such benefits intended to be assigned * Certain information on Buyer. Notwithstanding any provision in this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect Section 2.10 to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be madecontrary, Buyer shall not be deemed to have no obligation pursuant waived its rights under Section 7.02(b) hereof unless and until Buyer either provides written waivers thereof or elects to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not proceed to consummate the transactions contemplated by this Agreement if at the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledClosing.
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Third Party Consents. To the extent that the applicable Seller’s rights under any Assumed ContractContract or Permit constituting a Purchased Asset, Intellectual Property or Registration is any other Purchased Asset, may not assignable be assigned to Buyer without the consent of another partyPerson which has not been obtained, this Agreement shall will not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunderbe unlawful. Seller and Buyer shall each use commercially reasonable efforts to obtain In such case, the consent of [****]*applicable Seller, at its expense, shall, to the extent requiredrequested by Buyer, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable best efforts to obtain any such required consent(s) as promptly as possible and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All shall reasonably cooperate with such consents shall be Seller in writing and executed counterparts thereof shall be delivered promptly to Buyerconnection therewith. If any such consent shall cannot be obtainedobtained or if any attempted assignment would be ineffective or would impair Buyer’s rights under the Purchased Asset in question so that Buyer would not in effect acquire the benefit of all such rights, the applicable Seller shall, to the maximum extent permitted by Law and the terms of the applicable Purchased Asset, act after the Closing as Buyer’s agent in order to obtain for it the benefits thereunder as reasonably directed by Xxxxx. Sellers and Equity Holders shall cooperate cooperate, to the maximum extent permitted by Law and the terms of the applicable Purchased Asset, with Buyer in any other reasonable arrangement designed to provide for Buyer such benefits to Buyer; provided, however, nothing in this Section 2.11 will be deemed to require the benefits intended applicable Seller to renew or extend any Permit or Contract (including any Intellectual Property Agreement) included in the Purchased Assets beyond the current term of such Permit or Contract (including Intellectual Property Agreement) unless agreed upon in writing by Xxxxx and the applicable Seller. Each Seller shall not, and Equity Holders shall not permit any Seller to, cause any termination of any such Permit or Contract to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect effective prior to the omitted portions. to Buyer under end of the relevant Assumed Contract, current term of such Permit or Contract (including Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer Agreement) without Buyer’s prior written consent (not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledbe unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Samples: Asset Purchase Agreement (Hudson Technologies Inc /Ny)
Third Party Consents. To (a) Notwithstanding any other provision in this Agreement to the extent that any Assumed contrary, no asset, claim, Contract, Intellectual Property Permit, right or Registration is not assignable without benefit, the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof transfer of which is otherwise contemplated by Section 2.3(a) of this Agreement, shall be assigned or transferred at the Closing if such assignment or attempted transfer (or attempt to make such an assignment or transfer), without the consent or approval of a third party, would constitute a breach thereof or other contravention of Contract, applicable Law or the rights of such third party or would grant such third party rights that it would not otherwise have but for the (attempted) transfer or assignment (such assets being collectively referred to herein as “Restricted Assets”), and such Restricted Asset shall not be assigned or transferred until such consent or approval is obtained from such third party. Any assignment or transfer of a default thereunderRestricted Asset shall be made subject to such consent or approval being obtained with respect to such Restricted Asset. Seller Prior to and Buyer after the Closing, Carlisle Industrial, Carlisle Intangible or Carlisle LLC, as applicable, shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts cooperate with CMBF in attempting to obtain any and all consents necessary for such consent or approval with respect to such Restricted Asset (provided that none of Carlisle Industrial, Carlisle Intangible or Carlisle LLC shall be required to incur any material out-of-pocket cost) as promptly as possible; and
(b) If the effective assignment to and assumption by Buyer consent or approval of the Assumed Contractsapplicable third party with respect to a Restricted Asset has not been obtained as contemplated by Section 2.4(a) at or prior to the Closing, the Intellectual Property, the Registrations then until such time as such consent or approval is obtained and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 consummation of the Disclosure Schedule. All assignment or transfer of such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtainedRestricted Asset is effected, Seller Carlisle Industrial, Carlisle Intangible or Carlisle LLC, as applicable, shall cooperate with Buyer CMBF in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested making alternative arrangements with respect to such Restricted Asset so that CMBF is entitled to the omitted portions. to Buyer under benefits of such Restricted Asset and is economically in the relevant Assumed Contract, Intellectual Property or Registrationsame position as if the Restricted Asset had actually been transferred with effect as of the Closing Date, including enforcement at the cost and by holding such Restricted Asset in trust for the account benefit of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledCMBF.
Appears in 1 contract
Samples: Equity and Asset Purchase Agreement (Carlisle Companies Inc)
Third Party Consents. To (a) Notwithstanding anything in this Agreement to the contrary, to the extent that any Assumed Contract, Intellectual Property Contract may not be properly assigned or Registration is not assignable transferred without the consent of another any third party, or if the assignment or attempted assignment would constitute a violation or breach of such Contract or a violation of Applicable Law, nothing in this Agreement shall not will constitute an assignment or an attempted assignment thereof if of that Contract and, except as provided for in Section 7.02(c), Buyer will not be deemed to assume any liabilities or obligations under any such assignment or attempted assignment would constitute Contract until properly assigned.
(b) To the extent that the consents described in Section 7.02(a) are not obtained before the Closing Date, for a breach thereof or a default thereunder. period of one year after the Closing Date, Seller and Buyer shall each will use commercially reasonable efforts to obtain the consent of [****]*any such consents, to the extent requiredand Seller will be liable for any costs incurred in obtaining such consents. During such period, for the assignment of any Assumed Contracts to which it is a party. Seller shall will use its commercially reasonable efforts to obtain any and all consents necessary for (i) provide Buyer with the effective assignment to and assumption by Buyer economic benefits of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtainedContract until its termination date, Seller shall (ii) cooperate with Buyer in any reasonable lawful arrangement designed to provide for Buyer the such benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contractand (iii) enforce, Intellectual Property or Registration, including enforcement at the cost request of and for the account of Buyer, any rights of Seller arising from any such Contract against any third party, including the right to elect to terminate in accordance with the terms thereof upon the advice of Buyer. The failure or inability to obtain any consent subject to this Section 7.02(b) will not be a breach of this Agreement so long as Seller has complied with this Section 7.02(b).
(c) To the extent that Buyer is provided the benefits of any Contract under Section 7.02(b), Buyer will perform the obligations of Seller under or in connection with such Contract, at no cost to Seller, but only to the extent (i) that such action by Buyer would not result in any default under or in connection with such Contract and (ii) such performance pertains to the benefits provided to Buyer. Buyer will indemnify Seller and it Affiliates against and agrees to hold each of them harmless from any and all rights of Seller against the other party thereto Damages arising out of any default by Buyer in the breach or cancellation thereof by performance of such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registrationobligations. The provisions indemnification of Seller under this Section 2.7 shall not affect 7.02 will be governed by the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained indemnification provisions set forth in Section 9.1 has not been fulfilledSections 9.03 through 9.04.
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Third Party Consents. To Unless otherwise agreed to by the Purchaser, to the extent that any Assumed Contract, Intellectual Property or Registration Contract is not assignable without the consent of another partyConsent, this Agreement shall not constitute an assignment or an attempted assignment thereof thereof, or an assumption or attempted assumption of Obligations and Liabilities arising thereunder, if such assignment assignments or attempted assignment would constitute a breach thereof or a default thereunderunless the necessary Consents are obtained. The Seller and Buyer the Shareholders shall each use commercially reasonable best efforts to obtain the consent of [****]*, to the extent required, Consents required for the assignment of any Assumed Contracts the Purchased Assets. The Purchaser will cooperate to which it is a party. Seller shall use its the extent commercially reasonable with the Seller and the Shareholders in their efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to BuyerConsents. If any such consent Consent shall not be obtained, Seller then either, at the Purchaser's option, (i) the Contract shall be an Excluded Asset and the Purchaser shall not assume any Obligations and Liabilities related thereto or arising thereunder, or (ii) the Seller, the Shareholders and the Purchaser shall cooperate with Buyer in any a reasonable arrangement designed to provide (a) providing for Buyer the Purchaser the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with to the Sec. Confidential treatment has been requested Purchaser hereunder with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, any such other Contract (including enforcement at the cost and for the account of Buyer the Purchaser of any and all rights of the Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise), (b) to relieve the Seller of its obligations to the other contracting party under any such Contract. If and to the extent that such arrangement cannot be mademade on terms and conditions acceptable to the Seller, Buyer the Shareholders and the Purchaser, the Purchaser shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed ContractContract or any Obligation Liability with respect thereto, Intellectual Property or Registrationand the Closing Balance Sheet and the Closing Adjustments shall be adjusted accordingly, with any additional Purchase Price adjustment as a result thereof being paid to Purchaser pursuant to the terms of Section 2.2(c) hereof. The Without limiting the provisions of this Section 2.7 Section, the Seller and the Purchaser shall use commercially reasonable efforts to enter into, and shall cooperate with one another in good faith in entering into, appropriate and reasonable alternative arrangements pursuant to clause (ii) above, if elected by the Purchaser, on terms mutually agreeable, with respect to any Contract which is not, by its terms, assignable (in whole or in part) by the Seller or under which the Seller may not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to assign its obligations hereunder contained in Section 9.1 has not been fulfilledor delegate its duties.
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Third Party Consents. To Notwithstanding the foregoing, nothing in this Agreement shall be construed as an attempt by the Seller to assign any Transferred Contract to the extent that any Assumed Contract, Intellectual Property or Registration such Transferred Contract is not assignable without the consent necessary Consent of another partythe other party or parties thereto. From and after the date hereof (including after the Closing), this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. the Purchaser and the Seller each agree to use good faith efforts, and Buyer shall to cooperate with each use commercially reasonable efforts to obtain the consent of [****]*other, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents such Consent necessary for to transfer any Transferred Contract. Additionally, the effective assignment Seller shall (a) take or cause to and assumption by Buyer be taken such actions in its name or otherwise as the Seller may reasonably determine so as to (i) provide the Purchaser with the benefits of the Assumed Contracts, the Intellectual Property, the Registrations Transferred Contracts and (ii) to effect collection of money or other consideration that becomes due and payable to Purchaser under such Transferred Contracts and the Assumed Liabilities, including TWC Contract and (b) promptly pay over to Purchaser any monies received by Seller with respect to the Third Party Consents set forth on Attachment 4.2(a) hereto and Transferred Contracts or the consents set forth on Schedule 6.3 of TWC Contract received after the Disclosure ScheduleClosing. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent The Seller shall not be obtainedrequired to pay any compensation or other consideration, or incur any expenses, in connection therewith. Following the Closing, pending or in the absence of any such Consent, the Purchaser and the Seller shall cooperate with Buyer each other in any reasonable arrangement designed and lawful arrangements to provide for Buyer to the Purchaser the benefits intended of use of any Transferred Contract that is not assignable to the Purchaser. At such time that any such Consent has been obtained, the Seller shall provide the Purchaser with a copy thereof, and thereafter, the Transferred Contract associated with such Consent shall be assigned or transferred to the Purchaser automatically without any other conveyance or other action by the parties. Notwithstanding the foregoing, this Section 1.6 shall not apply to the Internet Yellow Pages Directory Service Agreement by and between Idearc Media Corp. and the Seller, effective April 2008, which shall be assigned by the Seller to the Purchaser regardless of whether the necessary Consent is obtained, such assignment to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out effective as of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledClosing Date.”
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Third Party Consents. (a) SCHEDULE 2.3 sets forth and describes all material approvals, consents or waivers required under any Assumed Contract listed on Schedule 3.1.16 which shall be required by the parties as a condition to Closing pursuant to Sections 5.1.5 and 5.2.6 (the "Required Consents"). To the extent that Seller's rights under any Assumed Contract, Intellectual Property Contract or Registration is other Purchased Asset may not assignable be assigned without the approval, consent or waiver of another partyperson, this Agreement shall not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller be unlawful, and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller parties shall use its commercially their reasonable commercial efforts to obtain any such required approval(s), consent(s) and all consents necessary for the effective waiver(s) as promptly as possible. Subject to Section 2.3(b) and Section 6.2(g), if any such approval, consent or waiver shall not be obtained or if any attempted assignment to and assumption by Buyer of would be ineffective or would impair Purchaser's rights under the Assumed ContractsContract or other Purchased Asset in question so that Purchaser would not acquire the benefit of all such rights and if Purchaser shall elect to effect the Closing notwithstanding its rights under 5.1.5 to the contrary, Seller, to the Intellectual Property, the Registrations maximum extent permitted by law and the Assumed LiabilitiesContract or other Purchased Asset, including shall act after the Third Party Consents set forth on Attachment 4.2(aClosing as Purchaser's agent in order to obtain for it the benefit of all such rights thereunder and shall cooperate with Purchaser in any other mutually agreeable arrangements to provide the benefit of all such rights to Purchaser.
(b) hereto In connection with the Assignment of Lease and Consent to Assignment:
(i) Purchaser shall deliver to JPMorgan Chase Bank or other mutually acceptable escrow agent (the consents set forth on Schedule 6.3 "ESCROW AGENT") at the Closing immediately available funds totaling $2,169,233.76 (the "LEASE ESCROW AMOUNT"), which amount shall be equal to the sum of all Monthly Basic Rental (as defined in the Real Property Lease) payments estimated to be due and payable to the landlord under the Real Property Lease (the "LANDLORD") pursuant to the Real Property Lease during the remainder of the Disclosure Scheduleterm of the Real Property Lease commencing on the Closing Date and ending on March 31, 2011. All such consents The Lease Escrow Amount shall be held in writing and executed counterparts thereof accordance with the Lease Escrow Agreement, pursuant to which an amount equal to the Monthly Basic Rental payments for one (1) month shall be delivered promptly released directly to Buyerthe Landlord on a monthly basis. If Notwithstanding the foregoing, Seller agrees that upon receipt of satisfactory evidence that it has been released by the Landlord from any obligations and liabilities with respect to the Real Property Lease (the "SELLER RELEASE"), it shall, jointly with Purchaser, execute and deliver to Escrow Agent a written notice pursuant to Section 4(B) of the Lease Escrow Agreement instructing the Escrow Agent to release all of the balance of the Lease Escrow Amount to Purchaser.
(ii) In the event that the Landlord does not execute the Consent to Assignment, and in the event the parties mutually agree that (x) notwithstanding such lack of Landlord consent, the parties shall consummate the Closing, then the failure of Seller to obtain such consent shall not be obtaineddeemed a breach of Seller's representations, warranties or obligations pursuant to Sections 3.1.3, 3.1.6, 3.1.16, or 4.1.6 of this Agreement or for any other purposes of this Agreement or the Assignment of Lease, and Seller and all Cardinal Affiliates shall cooperate with Buyer in have no liability under this Agreement, including without limitation, under Section 6.1 of this Agreement, to Purchaser or any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested Affiliate of Purchaser or any Indemnified Purchaser Party with respect to such failure to obtain such consent of Landlord, and (y) the omitted portions. parties shall use their reasonable commercial efforts to Buyer under obtain such Landlord consent as promptly as possible following the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledClosing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Adams Respiratory Therapeutics, Inc.)
Third Party Consents. To After the extent that any Assumed Contractdate hereof and prior to the Closing, Intellectual Property or Registration is not assignable without the consent of another party, this Agreement Seller shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use all commercially reasonable efforts to obtain the written consent of [****]*from any party to any Contract, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilitiesagreement or instrument, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant each Assumed Contract, Permit, Software license, Intellectual Property license or RegistrationLease which is required to permit the consummation of the transactions contemplated hereby. Buyer shall provide all reasonable assistance to Seller to obtain such consents, including enforcement at the cost by providing financial information about Buyer to Seller and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and parties to a Contract, to the extent that such arrangement canassistance does not conflict with or violate any confidentiality or non-disclosure restrictions applicable to Buyer. No Consent required for the assignment of the Acquired Assets set forth on Schedule 3.1(b), except as specifically set forth in Section 5.2(d), shall be made, Buyer shall have no a condition to Buyer's obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if Agreement. Except for any breach of the condition covenants set forth in Article 4, Seller shall have no liability to Buyer for the failure to obtain any such Consents. Notwithstanding anything to the contrary contained in this Agreement, Seller will not assign to Buyer at the Closing any Acquired Assets which require, prior to its assignment, the Consent of any third party unless such Consent has been obtained prior to or on the Closing Date. With respect to each such Acquired Asset not assigned at the Closing, Seller shall maintain its interest in such Acquired Asset and Buyer and Seller shall use all commercially reasonable efforts to obtain such Consents. Such Acquired Assets shall be promptly assigned and transferred to Buyer immediately upon receipt of such Consent. Notwithstanding the absence of any Consent to the assignment of an Acquired Asset, Seller shall maintain its interests in such Acquired Asset for the benefit of Buyer and, to the extent that Seller may provide Buyer with such benefits without violating the terms of any Contract affecting such Acquired Asset, Buyer shall be entitled to all benefits in and under such Acquired Asset from and after the Closing Date. To the extent the benefits (net of any related expenses, which shall be prorated in accordance with Section 2.6), under an Assumed Contract are provided to Buyer, Buyer shall perform at its sole expense the obligations hereunder contained in Section 9.1 has not been fulfilled.of Seller to be performed under the Assumed Contracts and shall indemnify Seller for all obligations arising under such Assumed Contracts for events occurring after June 29, 1998 (except for knowing or bad faith violations of the terms or conditions of such Assumed
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Third Party Consents. To Seller shall make such applications to the extent that any Assumed ContractFranchise authorities and other third parties identified on Schedule 3.2 whose consent or approval is required for the consummation of the transactions contemplated hereby, Intellectual Property or Registration is not assignable without the consent of another party, this Agreement and shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each otherwise use commercially reasonable its best efforts to obtain the consent of [****]*, such consents and approvals prior to the extent requiredConsummation. Buyer shall use its best efforts to assist Seller and shall take such actions as may reasonably be necessary in obtaining such consents and approvals and shall cooperate with Seller in the preparation, for the assignment filing and prosecution of any Assumed Contracts such applications. The parties agree to which it is a partyuse best efforts to obtain such consents and approvals in writing and in form and substance reasonably acceptable to Buyer. Seller shall use its commercially reasonable efforts not agree to obtain any and all consents materially adverse change in any Franchise as a condition to obtaining any consent or approval necessary for the effective assignment to and assumption by transfer of such Franchise unless Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Scheduleshall otherwise consent in writing. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent Buyer agrees that it shall not be obtained, seek amendments or modifications to Franchises or agreements. Buyer shall furnish Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain copies of such documents and information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or RegistrationBuyer, including enforcement at the cost financial information and for the account information relating to cable and other operations of Buyer and its affiliated or related companies, as Seller may reasonably request in connection with obtaining any of such consents or approvals or as may be reasonably requested by any and all rights of Seller against the Franchise authority or other third party thereto arising out of the breach in connection with obtaining any consent or cancellation thereof by such other party or otherwiseapproval. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise Seller's obligations hereunder with respect to obtaining any consent or approval shall be satisfied if Buyer has executed a new franchise or contract with the respective Franchise authority or other third party or if such Assumed Contract, Intellectual Property Franchise authority or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not other third party has indicated in writing that it is willing to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledexecute a new franchise or contract with Buyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (NexHorizon Communications, Inc.)
Third Party Consents. To the extent that a Seller’s rights under any Assumed ContractMaterial Contract or Permit constituting a Purchased Asset, Intellectual Property or Registration is any other Purchased Asset, may not assignable be assigned to Buyer without the consent of another partyPerson which has not been obtained, this Agreement shall not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller be unlawful, and Buyer shall each use commercially reasonable efforts to obtain upon the consent request of [****]*Buyer, to the extent requiredsuch Seller, for the assignment of any Assumed Contracts to which it is a party. Seller at its expense, shall use its commercially reasonable best efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(asuch required consent(s) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered as promptly to Buyeras possible. If any such consent shall not be obtainedobtained or if any attempted assignment would be ineffective or would impair Buyer’s rights under the Purchased Asset in question so that Buyer would not in effect acquire the benefit of all such rights, Seller such Seller, to the maximum extent permitted by law and in respect of the Purchased Asset, shall cooperate act after the Closing as Buyer’s agent in order to obtain for it the benefits thereunder, shall enforce, at the request of and for the account of the Buyer at Buyer’s expense, any rights of Sellers or their Affiliates arising thereunder against any Person, including the right to elect to terminate in accordance with the terms thereof upon the direction of the Buyer and shall cooperate, to the maximum extent permitted by Law and in respect of the Purchased Asset, with Buyer in any other reasonable arrangement designed to provide for such benefits to Buyer. To the extent Buyer is provided with the benefits intended of any such Purchased Asset, Buyer shall perform, at the direction of Sellers, the obligations of Sellers or their Affiliates thereunder. To the extent that any Assumed Liability relates to any such Purchased Asset, Sellers shall bear all of the costs arising from such Assumed Liability until such Purchased Asset is transferred and assigned to Buyer or Buyer obtains all the benefits of such Purchased Asset under this Section 2.10; provided, that to the extent Buyer obtains a portion of the benefits of such Purchased Asset, Buyer shall bear a pro rata portion of the costs arising from the related Assumed Liability. To the extent that any Intellectual Property Registration owned by a Seller cannot be assigned * Certain information on this page has been omitted and filed separately transferred by Sellers, then Sellers hereby grant Buyer an irrevocable, perpetual, worldwide, fully-paid up, royalty-free, exclusive license, with the Sec. Confidential treatment has been requested with respect right to the omitted portions. sublicense through multiple tiers and to Buyer under the relevant Assumed Contractenforce, to make, have made, use, sell, offer to sell, import, export, improve, reproduce, distribute, perform, display, transmit, manipulate in any manner, create derivative works based upon, and otherwise practice, exploit or utilize in any manner such Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwiseAsset. If and when such consents are obtained, the applicable Seller shall promptly assign, transfer, convey and deliver the applicable Purchased Asset to Buyer and execute such transfer document as may be reasonably requested by Buyer. Notwithstanding any provision in this Section 2.10 to the extent that such arrangement cannot be madecontrary, Buyer shall not be deemed to have no obligation pursuant waived its rights under Section 7.2(d) unless and until Buyer either provides written waivers thereof or elects to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not proceed to consummate the transactions contemplated by this Agreement if the condition at Closing. For ease of reference, this Section 2.10 does not apply to its obligations hereunder contained in Section 9.1 has not been fulfilledStandard Licenses.
Appears in 1 contract
Third Party Consents. To Notwithstanding anything to the extent contrary in this Agreement, no assets of Seller, including Contracts, that any Assumed Contractotherwise would constitute Purchased Assets shall be deemed sold, Intellectual Property transferred or Registration is not assignable assigned to Buyer pursuant to this Agreement if the attempted sale, transfer or assignment thereof to Buyer without the consent or approval of another partyany third party would be ineffective, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof of contract or a default thereunderviolation of any Law or Governmental Order (assuming compliance with applicable Regulatory Laws) or would in any other way adversely affect the rights of Seller (or Buyer as transferee or assignee) if such consent or approval is not obtained at or prior to the Closing. In such case, if the Closing occurs and to the extent legally permissible: (a) the beneficial interest in or to such assets (collectively, the “Beneficial Rights”) shall in any event pass at the Closing to Buyer under this Agreement; and (b) pending such consent or approval, Buyer shall discharge the obligations of Seller under such Beneficial Rights (except to the extent such obligations constitute Excluded Liabilities) as agent for Seller, and Seller shall act as Buyer’s agent in the receipt of any benefits, rights or interest received from the Beneficial Rights. After the Closing, Seller and Buyer shall each use their commercially reasonable efforts to obtain and secure all consents and approvals reasonably necessary to effect the consent of [****]*legal and valid sale, to the extent required, for the transfer or assignment of the assets underlying the Beneficial Rights to Buyer without any Assumed Contracts adverse change in any of the material terms or conditions of such assets; provided that (a) neither Seller nor Buyer shall be required to which it is a party. pay any consideration or compromise any rights not otherwise required by this Agreement to be compromised for any such consent or approval and (b) neither Seller nor Buyer shall use its commercially reasonable be required to undertake efforts to seek or obtain any those consents and all consents necessary for the effective assignment to and assumption by Buyer approvals described in Section 3.3 of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(aDisclosure Schedule but omitted from Section 9.2(f) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All Pending the completion of such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtainedsale, transfer or assignment of the assets underlying the Beneficial Rights, Seller and Buyer shall reasonably cooperate with Buyer in any other reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been of such assets (including those assets that are the subject of those consents and approvals described in Section 3.3 of the Disclosure Schedule but omitted and filed separately with from Section 9.2(f) of the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or RegistrationDisclosure Schedule), including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If , and to provide for Buyer to discharge any Liability of Seller under such assets to the extent that such arrangement canLiability does not be madeconstitute an Excluded Liability. Except as otherwise set forth in this Section 1.5, Seller shall not have any liability to Buyer shall have no obligation pursuant or its Affiliates arising out of or relating to Section 2.3 or otherwise with respect the failure to obtain any such Assumed Contractconsent or approval (for the avoidance of doubt, Intellectual Property this sentence does not operate to waive any rights Buyer may otherwise have under this Agreement arising from a breach of any representation or Registration. The provisions warranty of Seller set forth in Article 3 of this Section 2.7 shall not affect the right Agreement or a breach of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained any covenant of Seller set forth in Section 9.1 has not been fulfilledArticle 5).
Appears in 1 contract
Samples: Asset Purchase Agreement (H&E Equipment Services, Inc.)
Third Party Consents. To the extent that any Assumed ContractSeller shall use reasonable best efforts (at Seller's expense), Intellectual Property or Registration is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use commercially cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial consideration) with Seller in all reasonable efforts respects to obtain all Consents and Governmental Permits required for the consent transfer to Buyer of [****]*all of the Assets. Seller will not agree to any materially adverse change in any Assumed Contract as a condition to obtaining any such Consent without Buyer's consent, which shall not be unreasonably withheld. Any instrument evidencing any Consent shall be reasonably acceptable to the extent required, for Buyer. If a Required Consent or Governmental Permit to the assignment of any Assumed Contracts Contract is not obtained and Buyer, in its discretion, waives any requirement under this Agreement that such Consent or Governmental Permit be obtained as a condition to which it is a party. Closing and the requirement that such Assumed Contract be assigned to Buyer at the Closing, Seller shall use its commercially reasonable best efforts to keep such Assumed Contract in effect and to give Buyer the benefit of such Assumed Contract to the same extent as if it had been assigned, and Buyer shall perform Seller's obligations under the Assumed Contract relating to the benefit obtained by Buyer. From and after the Closing, Seller will continue to use its reasonable best efforts (at Seller's expense) to obtain all Consents and Governmental Permits that were not obtained prior to Closing. Nothing in this Agreement shall be construed as an attempt to assign any and all consents necessary for Assumed Contract or Governmental Permit that is by its terms nonassignable without the effective assignment to and assumption consent of the other party or as a waiver by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such requirement under this Agreement that consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account assignment of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property Contract or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not Governmental Permit be obtained prior to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledClosing.
Appears in 1 contract
Third Party Consents. (a) Seller shall use its reasonable best efforts to obtain each consent needed to assign to Purchaser at the Closing each Transferred ATM Management Agreement, each Transferred Vendor Contract and each Dealer Agreement. To the extent that any Assumed Contract, Intellectual Property or Registration is such consents have not assignable without been obtained as of the consent of another partyClosing, this Agreement shall and any document delivered pursuant hereto will not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a material breach thereof of such Transferred ATM Management Agreement, Transferred Vendor Contract or Dealer Agreement or would give rise to a default thereundervalid right of termination thereof. If any such third-party consent will not be obtained on or prior to the Closing Date, then the parties will cooperate in entering into any reasonably practicable alternative arrangements at the Closing Date as Purchaser may reasonably request pursuant to which Purchaser would obtain all of the benefits and assume all of the obligations under such Transferred ATM Management Agreement, Transferred Vendor Contract or Dealer Agreement, as applicable, and if such alternative arrangements shall, by their terms, provide Purchaser with substantially all of the benefits of the applicable Transferred ATM Management Agreement, Transferred Vendor Contract or Dealer Agreement, such Transferred ATM Management Agreement, Transferred Vendor Contract or Dealer Agreement, as the case may be, shall be deemed for all purposes of this Agreement to be a Contract as to which consent of the applicable counterparty has been obtained for the assignment of such Contract to Purchaser; provided, however, that nothing contained in this Section 5.4 shall obligate Seller to maintain its operations, refrain from liquidation or winding down or otherwise preserve its status as a legal entity; provided, further, that no such deemed consent shall be effective, or relieve Seller of its obligations under this Agreement, with respect to the Key ATM Management Agreements.
(b) Seller will use its reasonable best efforts to cause the Customer Documentation with respect to each Transferred ATM Management Agreement that is transferred to Purchaser to be delivered to Purchaser or its designated agent to the extent such information may be conveyed in accordance with applicable Requirements of Law and Seller’s contractual rights. Purchaser acknowledges that as of the date of this Agreement Seller may not have the contractual right to cause certain Customer Documentation to be so delivered. Seller will use its reasonable best efforts (which for purposes of this Section 5.4(b) will not require payment of any money or undertaking of any other financial obligations by Seller other than payment of legal, accounting and Buyer similar expenses incidental to its obligations hereunder to the extent such expenses in the aggregate are immaterial in amount) to induce the parties who have the contractual right to refuse such delivery to permit the delivery of such information to Purchaser pursuant to this paragraph (b), but will have no liability to Purchaser, either pursuant to this Agreement or otherwise, if Seller is unable to obtain such consents to transfer and delivery despite its reasonable best efforts to obtain the same.
(c) Purchaser shall each use commercially its reasonable best efforts to cooperate with and assist Seller in connection with all matters covered by this Section 5.4, including Purchaser’s entering into a licensing agreement, at no cost to Purchaser, for use of the Retained Names and Marks in connection with the Key ATM Management Agreements (the “Licensing Agreement”) in the case such Licensing Agreement is necessary to obtain the consent of [****]*the Customers who are parties to such Key ATM Management Agreements. Seller hereby agrees to enter into any such Licensing Agreement necessary to obtain such consent at no cost to Purchaser for a period not to exceed the longer of 36 months or the duration of Seller’s existing obligation under each such Key ATM Management Agreement, as in effect as of the date hereof, and on other terms usual and customary for such usage, which terms shall be at least as permissive as the terms included in the applicable Key ATM Management Agreement, and including restrictions on use as determined by Seller in its sole judgment, which restrictions, in any case, shall be no more restrictive than those contained in the applicable Key ATM Management Agreement.
(d) Seller and E*TRADE Bank, jointly and severally, covenant to obtain, prior to June 9, 2004, the extent requiredconsent necessary to satisfy the closing condition described in Section 6.1(d). If Seller and E*TRADE Bank fail to obtain such consent by June 9, 2004, Seller and E*TRADE Bank shall be jointly and severally liable for the assignment of any Assumed Contracts to which it is a party. same damages Seller shall use its commercially reasonable efforts to obtain any and would have been liable for had all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations closing conditions been satisfied and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not willfully refused to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledhereby.
Appears in 1 contract
Third Party Consents. (a) Prior to the Closing, each of the Sellers shall use all commercially reasonable efforts to assist the Purchasers in obtaining all Consents listed on Section 2.05(a) of the Disclosure Schedule, provided that no Contract shall be amended nor any right thereunder be waived to obtain any such Consent without the consent of Purchaser and, provide further, that such cooperation shall not require any Seller to pay any consideration, costs or expenses or grant any financial accommodation or other benefit; provided, however, that the Sellers shall use all commercially reasonable efforts to obtain the consent required by SunTrust Capital Markets, Inc. referred to in Section 2.05(a) of the Disclosure Schedule.
(b) To the extent that any Assumed Asset Seller Contract, Intellectual Asset Seller Real Property Lease, Asset Seller Personal Property Lease, Asset Seller License or Registration Joint Venture Interest is not assignable without the consent Consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyerthereof. If any such consent Consent shall not be obtained, Seller the parties shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer Purchasers the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registrationthereof, including enforcement at the cost and for the account of Buyer of any and all rights of Seller the Sellers against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If The parties expressly intend and agree that, as between Purchasers and Sellers, the beneficial interest in and to and benefits of the Asset Seller Contracts, the Asset Seller Real Property Leases, the Asset Seller Personal Property Leases and the Asset Seller Licenses pass to Purchasers. The parties further expressly intend and agree that Purchasers, to the extent that they receive the benefits referred to in the preceding sentence, shall assume and agree to perform and discharge all Liabilities under any such arrangement canContract, Lease or License as of the Closing, whether or not an assignment or transfer can be made, Buyer shall have no obligation to the extent such Liabilities constitute Assumed Liabilities under this Agreement. To the extent that a Purchaser does not assume the Liabilities under any such Contract, Lease or License pursuant to Section 2.3 the previous sentence, Sellers shall retain the rights under any such Contract, Leases or otherwise License with respect to any such Assumed Contract, Intellectual Property or RegistrationLiabilities. The provisions of this Section 2.7 2.05 shall not affect the right of Buyer Purchasers or its Designees not to consummate the transactions contemplated by this Agreement if the condition conditions to its their obligations hereunder contained in Section 9.1 has Sections 10.01(f) and 10.01(g) have not been fulfilledfulfilled without giving effect to the provisions and terms of this Section 2.05.
Appears in 1 contract
Third Party Consents. To Nothing in this Agreement or the extent Ancillary Agreements will be construed as an agreement to assign any Transferred Contract or other Transferred Asset that any Assumed Contract, Intellectual Property by its terms or Registration pursuant to applicable Law is not assignable capable of being sold, assigned or transferred without the consent or waiver of another party, a third party or Governmental Authority or without the expiration or termination of any waiting period under any non-U.S. Law applicable to the transactions contemplated by this Agreement shall not constitute an unless and until such consent or 16 waiver is given or such waiting period has expired or terminated. The Parties will use their commercially reasonable efforts, and will cooperate reasonably with each other, to obtain such consents and waivers, to cause such expiration or termination of any such waiting period, if any, and to resolve the impediments to the assignment or an attempted assignment thereof transfer contemplated by this Agreement or the Ancillary Agreements and to obtain any other consents and waivers or to cause the expiration or termination of any other waiting periods, if any, that are necessary to convey to the Company all of the Transferred Assets. In the event such assignment consents or attempted assignment would constitute a breach thereof waivers are not obtained or a default thereunder. Seller and Buyer shall each such waiting periods, if any, have not expired or terminated prior to the Closing Date, the Parties will continue to use their commercially reasonable efforts to obtain the consent relevant consents or waivers or cause the expiration or termination of [****]*such waiting periods until such consents or waivers are obtained or such waiting periods have expired or terminated. The Seller will cooperate with the Company in any lawful, contractually permitted and economically feasible arrangement to provide that the Company will receive the interest of the Seller in the benefits under any such Transferred Contract or other Transferred Asset, including performance by the Seller, if economically feasible, as agent; provided that the Company will undertake to pay or satisfy the corresponding Liabilities for the enjoyment of such benefit to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All Company would have been responsible therefor if such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any or waivers had been obtained or such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has waiting periods had expired or had been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledterminated.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Third Party Consents. To the extent that any Assumed Contract, Intellectual Property or Registration is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or * Certain information on this page has been omitted and filed separately with the SEC. Confidential treatment has been requested with respect to the omitted portions. otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilled.
Appears in 1 contract
Third Party Consents. To the extent that any Assumed Contract, Intellectual Property or Registration is not assignable without the consent of another party, this Agreement Buyer and Seller Entities shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, any necessary third-party consents to the extent required, for transfer of the Acquired Assets and assignment of any the Assumed Contracts prior to which it is a party. Seller Closing; provided, however, that BH Media shall use its commercially reasonable efforts not be required to pay or incur any cost or expense to obtain any and all consents necessary for third party consent that BH Media is not otherwise required to pay or incur in accordance with the effective assignment to and assumption by Buyer terms of the applicable Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to BuyerContract. If any such third party consent shall required to transfer any material Acquired Asset or assign any material Assumed Contract is not be obtainedobtained before the Closing, Seller shall BH Media shall, for a period of six (6) months after the Closing and at Buyer’s expense, use commercially reasonable efforts to: (i) obtain such consent, (ii) cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted of the applicable Acquired Asset or Assumed Contract and filed separately with the Sec. Confidential treatment has been requested (iii) enforce any rights of BH Media under or with respect to the omitted portionsapplicable Acquired Asset or Assumed Contract against all other Persons. to In addition, if any such third party consent is not obtained before the Closing, Buyer shall perform the obligations of BH Media under the relevant such Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and Contract to the extent that such arrangement canobligation would have been an Assumed Liability but for the fact that such consent has not be madebeen so obtained, and Seller Entities shall provide to Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to the benefits of any such Assumed Contract. To the extent that an Acquired Asset or Assumed Contract is an insurance policy and (a) such policy is not transferable or consent is not obtained to transfer such policy to Buyer and (b) Buyer notifies the Seller Entities that Buyer is unable to procure an adequate successor policy, Intellectual Property or Registration. The provisions of this Section 2.7 Seller Entities shall not affect maintain such policy, or, if unable to maintain such policy, purchase and maintain a tail policy to such policy containing substantially similar terms and conditions, at Buyer’s expense, for the right benefit of Buyer not with respect to consummate claims arising on or before the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledClosing Date.
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement (LEE ENTERPRISES, Inc)
Third Party Consents. To the extent that any Assumed Contract, Intellectual Property or Registration is not assignable without the requisite consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts any third party to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts contract which USP or its designee has agreed to assume hereunder has not been obtained prior to the Closing Date, the Closing shall nevertheless take place if USP determines in its sole and reasonable discretion that any such contract is not material, but Physician or the applicable Selling P.C. shall not be deemed to have assigned the contract to which it is such consent relates nor shall USP or its designee (as applicable) be deemed to have assumed the same unless and until such consent shall have been granted. If, at a party. Seller date subsequent to the Closing Date, any previously unobtained consent shall use be obtained, Physician or such Selling P.C. (as applicable) shall be deemed to have assigned to USP or its commercially reasonable efforts designee (as applicable) the contract to obtain any which such consent relates and all consents necessary for USP or its designee (as applicable) shall be deemed to have assumed the effective assignment to and assumption by Buyer same as of the Assumed ContractsClosing Date, provided USP or its designee (as applicable) shall have continuously received the Intellectual Property, benefit of such contract from and after the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to BuyerClosing Date. If any such consent shall is not obtained or if an attempt to assignment would be obtained, Seller shall cooperate with Buyer in ineffective or would impair any reasonable arrangement designed to provide for Buyer of Physician's or Selling P.C.'s rights so that USP or its designee (as applicable) would not receive the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by contract to which the same relates, then Physician and such other party or otherwise. If Selling P.C. agree to use their best efforts and to cooperate fully with USP or its designee (as applicable) in order continuously to obtain for USP or its designee (as applicable) the benefits of such contract from and after the Closing Date. To the extent that USP or its designee does not receive the benefits of such arrangement cancontracts, Physician and such Selling P.C. shall indemnify USP or its designee (as applicable) and hold it harmless of and from all loss of value, liability, costs and expenses as a result of the failure to obtain such consent and receive such benefits. In the event Physician or the applicable Selling P.C. and USP do not agree on the loss of value, liability, costs and expenses resulting from the failure to obtain one or more costs and receive such benefits, the dispute shall be madesettled by arbitration to be held in Philadelphia, Buyer shall have no obligation pursuant to Section 2.3 or otherwise Pennsylvania in accordance with respect to any such Assumed Contract, Intellectual Property or Registrationthe rules of the American Arbitration Association then obtaining. The provisions cost of this Section 2.7 the arbitrator(s) and the arbitration shall not affect be borne 50% by Physician and the right applicable Selling P.C. and 50% by USP. The determination of Buyer not the arbitrator(s) shall be delivered in writing to consummate Physician and USP and shall be final, binding and conclusive upon the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledparties hereto.
Appears in 1 contract
Third Party Consents. (a) Other than as set forth in subsection (b) below, the parties hereto shall reasonably cooperate to obtain any required third party consents and waivers pursuant to Section 6.2(c) and to obtain the fully executed and delivered Novation Agreements pursuant to Section 5.14(a). To the extent that any Assumed Contract, Intellectual Property or Registration is not assignable without the consent of another party, this Novation Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller be fully executed and delivered, Buyer shall each use commercially reasonable efforts to obtain enter into a Guaranty and Indemnity Agreement in respect thereto substantially in the consent of [****]*, form set forth on Exhibit I hereto.
(b) With respect to the extent requiredContracts set forth on Schedule 5.9(b), for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts best efforts, including as set forth on Section 5.9(b), to obtain any required third party consents or waivers prior to Closing, or as soon thereafter as practicable, PROVIDED, that the manner in which Seller exercises such efforts shall be in its sole discretion. In the event that Seller is unable to obtain such required consents or waivers and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents any Contract set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained5.9(b) is terminated, Seller shall cooperate with reimburse Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect of such Contract in an amount equal to the omitted portions. cost of services that are, in Buyer's reasonable opinion, substantially equivalent to Buyer those as provided under such Contract immediately prior to Closing, less the relevant Assumed Contractamount that would have otherwise been payable under such Contract following Closing pursuant to its terms in the event such Contract had not been so terminated, Intellectual Property PROVIDED that Seller shall also be responsible for any termination costs, fees, accelerated payments or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out penalties in respect of the breach or cancellation thereof by termination of such other party or otherwise. If and to the extent Contracts; PROVIDED, FURTHER, that nothing in this Section 5.9(b) shall relieve Buyer from its Liability for that amount that would have otherwise been payable under such arrangement cannot be made, Buyer shall have no obligation Contract following Closing pursuant to Section 2.3 or otherwise with respect to any its terms in the event such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has Contract had not been fulfilledso terminated.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Crown Media Holdings Inc)
Third Party Consents. To the extent that any Assumed right of Seller under any Purchase Contract, Intellectual Property Sale Contract, or Registration is Material Contract may not assignable be assigned to Buyer without the consent of another partyobtaining Third-Party Consent which have not been obtained (“Third-Party Consents”), this Agreement shall not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller be unlawful, and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*Seller, to the extent requiredat their expense, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially their reasonable best efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(asuch required consent(s) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered as promptly to Buyeras possible. If any such consent Third-Party Consent shall not be obtainedobtained as of the Closing or if any attempted assignment would be ineffective and would impair Buyer’s rights under the Purchased Asset in question to the extent set forth in Section 4(f)(ii) of this Agreement, then Buyer shall have the right to exercise one of the options outlined in such Section 4(f)(ii), including to elect to terminate this Agreement by written notice to Seller with respect only to the applicable Purchased Asset (a “Terminated Asset”) pursuant to Section 4(f)(ii)(3), in which event this Agreement shall remain in full force and effect in all other respects and the Purchase Price shall be reduced by an amount equal to the value of the Terminated Asset, which reduction shall be shown on the Updated Balance Sheet. If Buyer does not terminate this Agreement with respect to the applicable Purchased Asset and does not otherwise elect to extend the Closing Date under Section 4(f)(ii)(1) of this Agreement, then Seller shall cooperate act after the Closing as Buyer’s agent in order to obtain for Buyer the benefits thereunder and shall cooperate, to the maximum extent permitted by Law and the Purchased Asset, with Buyer in any other reasonable arrangement designed to provide such benefits to Buyer, and the portion of the Purchase Price attributable to the applicable Purchased Asset shall not be due and payable to Seller at Closing, but rather shall be paid to Seller upon the completion of the transfer of such Purchased Asset to Buyer. In such event, the Allocation Schedule shall not include the Premium for Buyer the benefits intended Purchased Asset, which Premium and the allocations thereof shall be calculated consistent with Schedule 2(f)(iii)(2) and included in an Allocation Schedule to be assigned * Certain information on provided by Buyer within sixty (60) days after the Closing for the Purchased Asset, and any Additional Purchase Price resulting therefrom shall be paid within ten (10) days after delivery of such Allocation Schedule. Notwithstanding any provision in this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect Section 7(e) to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be madecontrary, Buyer shall not be deemed to have no obligation pursuant waived its rights under Section 4(b)(i)(15) unless and until Buyer either provides written waivers thereof or elects to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not proceed to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledat Closing.
Appears in 1 contract
Third Party Consents. To the extent that any Assumed ContractBusiness Contract or Business Permit, or any license, sublicense or other agreement to which Seller or any of its Subsidiaries is a party and pursuant to which Seller or any of its Subsidiaries is authorized to use any third-party Intellectual Property (including generally available "shrink wrap" licenses) relating to the Business or Registration to the Purchased Assets, is not assignable without the consent consent, waiver, approval or other action of another a third party or notice to a third party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such consent, waiver, approval or other action has not been obtained and delivered to Purchaser or if such notice has not been given or such assignment or attempted assignment would otherwise constitute a breach thereof or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a partythereof. Seller shall use its commercially reasonable best efforts to obtain such consent, waiver of such third party approval or other action or to give such notice as to permit or effect the assignment of any and such Business Contract, Business Permit, license, sublicense or other agreement to Purchaser in all consents necessary cases in which such consent, waiver, approval, other action or notice is or may be required for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyerassignment. If any such consent consent, waiver, approval or other action shall not be obtainedobtained or such notice cannot be given, Seller shall cooperate with Buyer Purchaser in any reasonable arrangement designated by Purchaser designed to provide for Buyer Purchaser the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer Purchaser under the relevant Assumed affected Business Contract, Intellectual Property Business Permit, license, sublicense or Registration, other agreement including permission for use of premises or enforcement at the cost and for the account of Buyer Purchaser of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such assignment or arrangement cannot be made, Buyer Purchaser shall have no obligation pursuant to Section 2.3 or otherwise any provision of this Agreement with respect to any such Assumed Business Contract, Intellectual Property Business Permit, license, sublicense or Registrationother agreement. The provisions of this Section 2.7 2.07 shall not affect the right of Buyer Purchaser not to consummate the transactions purchase of Purchased Assets contemplated by this Agreement if any of the condition conditions to its obligations hereunder contained Purchaser's obligation to purchase the Purchased Assets, as set forth in Section 9.1 Article VII, has not been fulfilledsatisfied.
Appears in 1 contract
Samples: Asset Purchase Agreement (Triton Network Systems Inc)
Third Party Consents. To (a) Except with respect to the extent that any Assumed ContractExcluded Assets, Intellectual Property or Registration is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each Purchaser will use commercially reasonable efforts to obtain all waivers, consents, novations, approvals, authorizations and clearances and to effect all registrations, filings and notices with or to third parties or Governmental Authorities which are reasonably necessary or desirable in connection with the assignment of the Contracts to the Company and obtaining consent to a change of control. Any Contract or Lease (other than the GSA Contract) that has not been so assigned or novated to the Company by the Effective Time under the Contribution Agreement shall be deemed an "Unassigned Contract".
(b) Notwithstanding anything in this Agreement to the contrary, if the consent or novation of [****]*, to the extent required, any third party required for the assignment of any Assumed Contracts Contract or Lease (other than the GSA Contract) has not been obtained by the Closing Date, Seller and Purchaser will cooperate in a commercially reasonable manner, which shall not include the payment of money to which it a third party by Seller, to obtain such consent or novation for such Unassigned Contract, and will and hereby does grant the Company the exclusive right to perform all obligations under and receive the benefits of such Unassigned Contract on behalf of Seller (unless prohibited by law or by the terms of such Unassigned Contract and subject to the Company and/or the Converted Companies assuming and performing all obligations and liabilities of Seller and/or the Subsidiaries under such Unassigned Contract) (collectively, the "Subcontracting Arrangement"), until the earlier of (i) the date that is six (6) months after the Closing Date (the "Initial Period"), (ii) the replacement of such Unassigned Contract with a partysubstantially equivalent contract from the same party (a "Replacement Contract") or (iii) the receipt of a consent or novation required for the assignment of such Unassigned Contract. Seller Purchaser shall cause the Company to, and the Company shall use its commercially reasonable efforts to, assist Seller in obtaining the necessary consents or novations, but if following Seller's commercially reasonable efforts to obtain such consents or novations, Seller certifies to Purchaser in writing that it appears that a third party consent or novation cannot be obtained for any and all consents necessary for Unassigned Contract prior to the effective assignment to and assumption by Buyer end of the Assumed Initial Period, Purchaser shall cause the Company to, and the Company shall use commercially reasonable efforts to, obtain a Replacement Contract for such Unassigned Contract. After the date hereof, Seller shall, prior to contacting any third party regarding a consent or novation, provide Purchaser with the right to review the form of communication to be used by Seller to obtain consents and novations and shall include any reasonable modification to such form requested by Purchaser within two (2) business days of submission to Purchaser. With respect to Material Contracts, the Intellectual PropertyPurchaser shall be promptly provided upon receipt or delivery thereof a copy of all correspondence with third parties regarding consents and novations and a copy of all written replies. In seeking such consents and novations, the Registrations and the Assumed LiabilitiesSeller shall not agree to any amendment of any Contract or Lease, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 or to any other adverse modification of the Disclosure Schedule. All such consents shall be in writing relationship between the 39 48 Company and executed counterparts thereof shall be delivered promptly to Buyer. If any such third party, without the prior written consent of Purchaser (which consent shall not be obtainedunreasonably withheld).
(c) If a third party consent or novation or Replacement Contract for any Mission Critical Contract (other than the GSA Contract) has not been obtained prior to the end of the Initial Period, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted Initial Period and filed separately with the Sec. Confidential treatment has been requested Subcontracting Arrangement with respect to such Mission Critical Contracts only shall be extended for up to three (3) additional months (the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer "Extended Initial Period").
(d) The Company shall have no obligation pursuant under, or receive any benefits of, any Unassigned Contract after the expiration of the Initial Period, except for (i) any Unassigned Contract for which a consent or novation required for the assignment of such Unassigned Contract to Section 2.3 the Company has been obtained and (ii) any Mission Critical Contract until the expiration of the Extended Initial Period.
(e) Seller shall terminate any Unassigned Contract for which a consent or otherwise novation required for such Unassigned Contract's assignment has not been obtained upon the earlier of (i) the expiration of the Initial Period or (ii) the execution and delivery of a Replacement Contract, or, with respect to any such Assumed Unassigned Contract that is a Mission Critical Contract, Intellectual Property upon the earlier of (x) the expiration of the Extended Initial Period or Registration. The provisions (y) the execution and delivery of a Replacement Contract; provided, however, that if the termination of any Unassigned Contract would result in a penalty or other extra expense to Seller, then such termination shall be solely in the discretion of Seller and Seller shall be responsible for any liabilities arising under or related to such Unassigned Contract after the Subcontracting Arrangement.
(f) Subject to the terms and conditions of this Section 2.7 Agreement and the Ancillary Agreements, all obligations and liabilities arising under the Unassigned Contracts during the Initial Period, or to the extent the Unassigned Contract is a Mission Critical Contract, the Extended Initial Period, if applicable, shall not affect be deemed to constitute Assumed Liabilities. Notwithstanding any of the right foregoing, from and after the date of Buyer not this Agreement, Seller shall have no obligation to consummate the transactions contemplated by this Agreement if the condition to renew any Contract that comes up for renewal or that will expire in accordance with its obligations hereunder contained in Section 9.1 has not been fulfilledown terms.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Micron Electronics Inc)
Third Party Consents. To (a) Prior to the extent Applicable Closing, the Purchaser and the Seller shall, and the Seller shall cause each other member of the Seller Group to, use commercially reasonable efforts to obtain, or cause to be obtained, all consents required in connection with the consummation of the transactions contemplated by this Agreement, including all required consents under Transferred Business Contracts and Transferred Real Property Leases and the Real Property Subleases, but excluding consents of Governmental Authorities, which are governed by Section 5.5; provided that (i) neither the Purchaser nor any Assumed Contractmember of the Seller Group shall be obligated to pay any consideration to any third party from whom consent is requested, Intellectual Property or Registration is not assignable without (ii) the prior written consent of another partythe Purchaser shall be required with respect to any amendment or modification to any such Contract for the purpose of obtaining any such consent that is materially adverse to the Purchaser, this Agreement the Business or the Transferred Entities and (iii) obtaining any such consents shall not constitute an assignment or an attempted assignment thereof if be a condition to the Principal Closing. In furtherance of the foregoing, the Purchaser agrees to use commercially reasonable efforts to provide such assignment or attempted assignment would constitute assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any third party whose consent is sought hereunder.
(b) For a breach thereof or a default thereunder. period of twelve (12) months after the Applicable Closing Date, the Purchaser and the Seller shall, and Buyer the Seller shall cause each other member of the Seller Group to, use commercially reasonable efforts to obtain the consent any consents, approvals or authorizations of [****]*, any third parties that are not obtained prior to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any Applicable Closing Date and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be that are required in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate connection with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if Agreement; provided that neither the condition Purchaser nor any member of the Seller Group (nor any of their respective Affiliates) shall be obligated to its obligations hereunder contained pay any consideration to any third party from whom consent is requested.
(c) Prior to the Applicable Closing, the Seller shall use commercially reasonable efforts to cause (i) Contracts entered into by Transferred Entities to not include a change in Section 9.1 has control provision in favor of the other party or parties thereto to the extent such provision does not been fulfilledcarve out the transactions contemplated hereby or (ii) Contracts primarily relating to the Business and entered into by a member of the Seller Group that is not a Transferred Entity to not include an anti-assignment provision requiring consent or approval to effect the assignment (or partial assignment, as applicable) of such Contract in connection with the transactions contemplated hereby.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Pitney Bowes Inc /De/)
Third Party Consents. To the extent that any Assumed Contractcontract, Intellectual Property lease, -------------------- license or Registration other agreement included in the Assets is not assignable or transferable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder(an "Unassigned Item"). Seller and Buyer shall each use commercially reasonable efforts to obtain the necessary consent of [****]*, to the extent requiredassignment or transfer of all Unassigned Items, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller Purchaser shall cooperate in those efforts. The beneficial interest in and to each Unassigned Item shall in any event pass to Purchaser at Closing, and Seller covenants and agrees to cooperate with Buyer Purchaser in any reasonable arrangement designed to provide for Buyer Purchaser with Seller's entire interest in the benefits intended under each Unassigned Item. If and only if such reasonable arrangement can be made, Purchaser agrees to be assigned * Certain information on this page has been omitted accept the burdens and filed separately with perform the Secobligations under such Unassigned Item. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed ContractFurthermore, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against if the other party party's consent is subsequently obtained (without any modification thereto arising out of the breach or cancellation thereof by which is adverse to Purchaser), Purchaser shall at such other party or otherwisetime agree to assume all liabilities and obligations thereunder at which time such Unassigned Item shall become an Asset. If and to the extent that such arrangement cannot be made, Buyer Purchaser shall have no obligation pursuant to Section 2.3 1.02(a) or otherwise with respect to any such Assumed --------------- Contract, Intellectual Property or Registration. The provisions of this Section 2.7 8.08 shall not affect the right of Buyer ------------ Purchaser not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 5.06 has not ------------ been fulfilled.
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Third Party Consents. (a) To the extent that any Assumed Contract, Intellectual Property or Registration Contract included in the Assets is not by its express terms assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a partythereof. Seller shall use its commercially reasonable efforts to obtain the consent of such other party to the assignment of any and such Asset to Purchaser in all consents necessary cases in which such consent is or may be required for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyerassignment. If any such consent shall not be obtained, Seller and Purchaser shall cooperate with Buyer in to enter into any reasonable arrangement designed to provide for Buyer the benefits realization and assumption by Purchaser of the rights and obligations intended to be assigned * Certain information on this page has been omitted to and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registrationassumed by Purchaser, including enforcement enforcement, at the cost Purchaser's expense and for the account of Buyer Purchaser, of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer Purchaser shall have no rights or obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed ContractAsset.
(b) With respect to Software License and Support Agreements that are not assigned in accordance with Section 1.06(a), Intellectual Property Newco II hereby agrees to perform, on behalf of Seller, and to assume all of Seller's obligations and liabilities under such Software License and Support Agreements, including without limitation all performance obligations, indemnity obligations, claims, disputes, litigation, settlements and taxes which are required to be performed or Registration. The provisions arise after the Closing Date and do not result from any act or omission of this Seller occurring prior to the Closing Date.
(c) With respect to Contracts that are not assigned in accordance with Section 2.7 1.06(a), after the Closing, the Purchaser and Seller shall not affect cooperate in negotiating with the right third parties under such Contracts the assignment of Buyer not the Contracts to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledPurchaser.
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Third Party Consents. (a) To the extent that Seller's rights under any Assumed Contract, Intellectual Property or Registration is contracts (other than the Subscriber Agreements) relating to the Business may not assignable be assigned without the consent of another a third party, which consent has not been obtained prior to Closing, this Agreement shall not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunderbe unlawful. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*Seller, to the extent requiredat its expense, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all such required consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered as promptly to Buyeras possible after Closing. If any such consent consents are not obtained or if any attempted assignment would be ineffective or would impair Buyer's rights so that Buyer would not in effect acquire the benefit of all such rights, Seller, to the maximum extent permitted by law and by the terms of the applicable contract(s), at Seller's expense, shall not be obtainedact for six months after the Closing as Buyer's agent in order to obtain for Buyer the benefits thereunder, Seller and shall cooperate cooperate, to the maximum extent permitted by law and by the terms of the applicable contract(s), with Buyer in any other reasonable arrangement designed to provide for Buyer the benefits intended of such contracts to Buyer. Alternatively, at Seller's option, Seller may recharacterize any contract of Seller for which the required consent of a third party could not be obtained at Closing or within six months after Closing Date as an Excluded Asset (and not an Asset to be assigned * Certain information on this page has transferred to Buyer), and all rights and obligations relating to such contract shall remain with Seller.
(b) Notwithstanding Section 1.6.3(a) above, should Seller be unable to obtain the third party consents required to assign the hospital contract with certain Columbia hospitals, dated January 1, 1995, as amended ("Columbia Hospital Contract"), Seller shall attempt to substitute an adequate hospital network for the existing service area of the HMO Business. Irrespective of whether Seller or Buyer provides such substitute hospital network, Seller shall pay to Buyer 75% of the excess (if any) of the amount that Buyer must pay for hospital services with such substitute hospital delivery network over the amount which Buyer would have enjoyed as an assignee of Seller pursuant to the Columbia Hospital Contract, for the period from the Closing Date through December 31, 1999. The amount due hereunder shall be determined by repricing the services actually used during the period in question as if they had been omitted and filed separately with provided under the Sec. Confidential treatment has been requested Columbia Hospital Contract.
(c) All third party consent issues with respect to the omitted portions. Subscriber Agreements shall be resolved pursuant to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out terms of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledAssumption Reinsurance Agreement.
Appears in 1 contract
Samples: Asset Sale and Purchase Agreement (Sierra Health Services Inc)
Third Party Consents. To (a) If Sellers’ or Owner’s rights to any Purchased Asset, the extent that any Assumed Contract, Intellectual Property First Closing Equity or Registration is the Second Closing Equity may not assignable be transferred without the consent of another partyperson or entity, and if such consent has not been obtained as of the First Closing Date or Second Closing Date, as applicable, despite the exercise by Sellers or Owner of their respective reasonable efforts, this Agreement shall not constitute an assignment or agreement to transfer such Purchased Asset (a “Non-Transferred Purchased Asset”) if an attempted assignment transfer thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunderbe unlawful. Seller In any such case, Sellers and Owner, to the maximum extent permitted by law, (i) shall act after the First Closing or Second Closing, as applicable, as the Buyer’s agent to obtain for Buyer the benefits and satisfy the associated obligations related to the Non-Transferred Purchased Asset, and (ii) shall cooperate with Buyer in any other reasonable arrangement designed to provide those benefits to the Buyer, including by agreeing to remain liable under any applicable contract, and Buyer shall each with cooperation from Sellers make any payments with respect to a Non-Transferred Purchased Asset required to obtain the benefit thereof.
(b) With respect to any Equipment Indebtedness that is not a Non-Transferred Purchased Asset and may not be transferred without the consent of another person or entity, and if such consent has not been obtained as of the First Closing Date despite the exercise by Sellers or Owner of their respective reasonable efforts, Sellers shall continue to perform, and make all payments required, under the terms of such Equipment Indebtedness until such time as such Equipment Indebtedness is transferred to Buyer and Buyer assumes the related Equipment Indebtedness. Until such transfer and assumption, the Parties shall cooperate to allow Buyer to make any payments required pursuant to such Equipment Indebtedness on behalf of Sellers. The Parties shall cooperate to obtain a release of Owner and Sellers, as applicable, from the applicable Equipment Indebtedness at the time of its transfer and assumption.
(c) Nothing contained in this Section 5.11 shall relieve the Sellers or Owner of their respective obligations under any other provisions of this Agreement, including the obligation pursuant to Section 5.4 to use commercially their respective reasonable efforts to obtain the consent of [****]*, the applicable person or entity to transfer the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly Non-Transferred Purchased Asset to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilled.
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Third Party Consents. At the Closing, Seller shall assign, and Purchaser shall assume and be entitled to, all rights, benefits, interests, duties and obligations under the Assumed Contracts. To the extent that any Assumed Contract, Intellectual Property or Registration Contract is not assignable without the consent of another partyany other party to such Contract (“Other Parties”), this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer Purchaser shall each use commercially their respective best efforts (provided that Purchaser shall bear all reasonable efforts and documented out-of-pocket expenses of Seller that are borne after notice is given to obtain the consent of [****]*Purchaser and Purchaser consents to such expenses) to obtain, as soon as reasonably practical and subject to the extent required, for Purchaser obtaining all necessary Permits in connection with the assignment of any such Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed ContractsContract, the Intellectual Property, consent of each Other Party to each Assumed Contract to the Registrations and the assignment of any such Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All Contract to Purchaser in all cases in which such consents shall consent is or may be in writing and executed counterparts thereof shall be delivered promptly to Buyerrequired for such assignment. If any such consent shall not be obtainedobtained as of the Closing Date, Seller shall cooperate with Buyer Purchaser in any reasonable arrangement designed to provide for Buyer Purchaser the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer Purchaser under the relevant applicable Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer Purchaser of any and all rights of Seller against the other party Other Party thereto arising out of the breach or cancellation thereof by such other party Other Party or otherwise. If Purchaser acknowledges that it has reviewed each Assumed Contract. Seller represents, warrants and agrees that it has obtained the consent of each Other Party to each Assumed Contract to permit Purchaser to act as a subcontractor to Seller under each Assumed Contract, except as set forth on Schedule 7.10. In furtherance of the extent that such arrangement cannot be madeforegoing, Buyer at the Closing Seller and Purchaser shall have no obligation pursuant to Section 2.3 or otherwise enter into a Subcontractor Agreement in the form of Exhibit C. In addition, after the Closing Date, Seller shall maintain insurance with respect to any the Assets and the Assumed Contracts at the same levels as prior to the Closing, so long as such Assumed ContractContracts and related Assets are covered by the Subcontractor Agreement, Intellectual Property or Registration. The provisions and Purchaser shall reimburse Seller for Seller’s incremental out-of-pocket costs of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledsuch post-Closing insurance.
Appears in 1 contract
Third Party Consents. To Without derogating from the conditions to Closing set forth in Article 6, to the extent that any Assumed Acquired Asset (including Assigned Contract, Intellectual Property or Registration ) is not assignable without the consent of another partyPerson, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof thereof. To the extent the preceding sentence applies in respect of an Assigned Contract, at the Closing, Purchaser will assume and agree to pay, perform and satisfy when due the liabilities of Seller under such Assigned Contract (but not such Assigned Contract itself) to the extent that such liabilities would otherwise be an Assumed Liability, and the rights and benefits of Seller under such Assigned Contract or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*resulting therefrom (but not such Assigned Contract itself), to the extent requiredthat such rights and benefits would otherwise be an Acquired Asset, for the assignment of any Assumed Contracts will be sold, transferred and assigned to which it is a partyPurchaser. Seller shall use its commercially reasonable efforts to obtain assist Purchaser (at Purchaser’s expense) in obtaining the consent of such other Person to the assignment of any and such Acquired Asset to Purchaser in all consents necessary cases in which such consent is required for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyerassignment. If any such consent shall not be obtained, Seller shall cooperate with Buyer Purchaser in any reasonable arrangement designed to provide for Buyer Purchaser the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer Purchaser under the relevant Assumed Contract, Intellectual Property or RegistrationAcquired Asset, including enforcement at the cost and for the account of Buyer Purchaser of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise, in each case at Purchaser’s sole expense. If and Notwithstanding anything to the extent that such arrangement cannot be madecontrary, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions the obligations of Seller under this Section 2.7 2.12 shall not affect in no event extend beyond the right completion of Buyer not the Wind-Up. Seller shall [***] the consent to consummate assignment of the transactions contemplated by this Agreement if contract counterparty for the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledAssigned Contracts listed on Schedule 2. [***].
Appears in 1 contract
Samples: Asset Purchase Agreement (Sol-Gel Technologies Ltd.)
Third Party Consents. To the extent that Seller’s rights under any Assumed Contract, Intellectual Property or Registration is contracts relating to the Medicaid Business (which are part of the Assets) may not assignable be assigned without the consent of another a third party, which consent has not been obtained prior to Closing, this Agreement shall not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunderbe unlawful. Both Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, acknowledge and agree that in addition to the extent requiredPurchased Provider Agreements (which are not assignable to Buyer and will be dealt with pursuant to Section 11.1(b)), for each of the assignment agreements set forth on Schedule 2.7(c) are not assignable and Seller has agreed to either secure the consents of its contracting parties or to take all actions necessary in order to provide the benefits of any Assumed Contracts such agreement to which it is a partyBuyer. Seller Seller, at its expense, shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered required consent as promptly to Buyeras possible after Closing. If any such consent consents are not obtained or if any attempted assignment would be ineffective or would impair Buyer’s rights so that Buyer would not in effect acquire the benefit of all such rights, Seller, to the maximum extent permitted by law and by the terms of the applicable contract(s), at Seller’s expense, shall not be obtaineduse its commercially reasonable efforts in acting as Buyer’s agent in order to obtain for Buyer the benefits thereunder, Seller and shall cooperate cooperate, to the maximum extent permitted by law and by the terms of the applicable contract(s), with Buyer in any other reasonable arrangement designed to provide for Buyer the benefits intended of such contracts to Buyer. Seller shall, without further consideration therefor, pay and remit to the Buyer promptly all monies, rights, and other considerations received in respect of the Buyer’s performance of any obligations, and, at the Buyer’s request, shall direct that such payments be assigned * Certain information on made directly to the Buyer. Without limiting the foregoing, Seller shall not terminate any such contract without the prior written consent of Buyer. Buyer may, from time to time, upon five (5) Business Days’ written notice to Seller, terminate any arrangements which are the subject of this page has been omitted and filed separately with the Sec. Confidential treatment has been requested Section 2.7(c) with respect to the omitted portions. periods after such notice, without liability or further obligation to Buyer under the relevant Assumed Contract, Intellectual Property Seller or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledthird party.
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Third Party Consents. To Nothing in this Agreement nor the extent that consummation of the transactions contemplated hereby shall be construed as an attempt or agreement to assign any Assumed Purchased Asset, including any Contract, Intellectual Property Assumed Lease, Permit, certificate, approval, authorization or Registration other right, which by its terms or by Applicable Law is not assignable nonassignable without the consent of another party, this Agreement shall not constitute a Third Party or a Governmental Authority or is cancelable by a Third Party or a Governmental Authority in the event of an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller (“Nonassignable Assets”) unless and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All until such consents shall be given. Seller agrees to use all commercially reasonable efforts, with the cooperation of Buyer, where appropriate, to obtain such consents prior to Closing. To the extent permitted by Applicable Law, in writing and executed counterparts the event consents to the assignment thereof shall be delivered promptly to Buyer. If any such consent shall cannot be obtained, such Nonassignable Assets shall be held, as and from the Closing Date, by Seller in trust for Buyer and the covenants and obligations thereunder shall be performed by Buyer in Seller’s name and all benefits and obligations existing thereunder shall be for Buyer’s account. Seller shall cooperate with take at Seller’s expense such action in its name or otherwise as Buyer in any reasonable arrangement designed may reasonably request so as to provide for Buyer with the benefits intended of the Nonassignable Assets and to be assigned * Certain information on this page has been omitted effect collection of money or other consideration to become due and filed separately with payable under the Sec. Confidential treatment has been requested Nonassignable Assets, and Seller shall promptly pay over to Buyer all money or other consideration received by them with respect to all Nonassignable Assets. For clarity, the omitted portions. to Buyer under Permits are (i) the relevant Assumed ContractIndirect Air Carrier's license granted by the Transportation Security Administration, Intellectual Property or Registration(ii) Federal Highway Administration truckload broker's license MC 360210 B, including enforcement at and (iii) Standard Carrier Alpha Code “URLD.” After Closing, Seller will retain the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and Permits to the extent necessary to complete shipments which Seller is committed, immediately prior to Closing, to complete, but Seller will not otherwise use the Permits except as necessary to wind up its operations. Notwithstanding anything else in this Agreement, (i) Buyer acknowledges that such arrangement canneither Seller nor the Partners are making any representation or warranty that Seller has the right or power to transfer the Permits or that any attempt to transfer the Permits will not result in a violation or termination of the Permits, (ii) Buyer is not relying on Seller’s ability to convey any rights under the Permits, (iii) it is not a condition to Buyer’s obligation to close that Seller be able to convey any rights under the Permits, and (iv) it will not be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions a breach of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if Seller is unable to convey any rights under the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledPermits.
Appears in 1 contract
Third Party Consents. To the extent that any Assumed Contract, Intellectual Property or Registration is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Section 1.07
(a) Seller shall use its commercially reasonable efforts to obtain any Contract, license (including any modification to, extension or renewal of, or replacement for an existing license), or consent or waiver under its own Contracts entered into with any Third Party and all consents necessary for the effective assignment that pertain to and assumption by Buyer any software, equipment, systems or other materials or associated services required in connection with performance or receipt of the Assumed ContractsServices under this Agreement (each, a “Required Consent”); provided, that if, in order to obtain any Required Consent, costs or expenses must be incurred, the Intellectual Propertycosts and expenses incurred to obtain Required Consents required by Seller in connection with its performance of the Services shall be solely borne by Purchaser and constitute Allowable Expenses under the Purchase Agreement. Purchaser shall use its commercially reasonable efforts to cooperate with the Seller in obtaining such Required Consents from Third Parties.
(b) If, despite using commercially reasonable efforts, Seller is unable to obtain a Required Consent hereunder, Purchaser and Seller shall work together in good faith to develop a mutually acceptable alternative arrangement that is sufficient to enable Seller to provide, and Purchaser to receive, the Registrations Services without such Required Consent. Purchaser shall bear the costs and the Assumed Liabilitiesexpenses of such alternative arrangement incurred by either Party, including the Third Party Consents set forth on Attachment 4.2(a) hereto as applicable, which costs and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents expenses shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer constitute Allowable Expenses under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and Purchase Agreement to the extent that the costs of the Service to which such alternative arrangement relates are included in Allowable Expenses pursuant to the Purchase Agreement. If such alternative arrangement cannot be madeagreed upon by Purchaser and Seller or is required for a period longer than thirty (30) days following the Effective Date, Buyer either Party may request that the affected Services be terminated, in which case the Services Fees and Out-of-Pocket Costs for such Services, if any, shall be equitably adjusted to account for such terminated Services, reflecting the actual FTE Costs and Out-of-Pocket Costs incurred by Seller. Seller shall have no obligation pursuant (and no Liability for failing) to provide (or cause the provision of) a Service for which a Required Consent has not been obtained, unless and until such Required Consent is obtained, so long as Seller has complied with this Section 2.3 1.07.
(c) Purchaser acknowledges and agrees that any Services provided through or otherwise involving Third Parties or using any Intellectual Property owned by a Third Party or systems or facilities are subject to the terms and conditions of any applicable Contracts between Seller or its Affiliates or Subcontractors (as applicable) and such Third Parties, as well as compliance with applicable Law. Purchaser shall comply, and shall cause its Affiliates to comply, with the terms and conditions of any such applicable Contracts notified to Purchaser from time to time in all material respects, and with applicable Law in connection with the receipt by Purchaser or its designees of the Services, provided that Seller shall, and shall use commercially reasonable efforts to, and cause its Affiliates and Subcontractors to, provide Purchaser reasonable information in advance with respect to such terms and conditions, subject to any such Assumed confidentiality obligations under the applicable Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilled.
Appears in 1 contract
Samples: Transition Services Agreement (Seres Therapeutics, Inc.)
Third Party Consents. To (a) Notwithstanding anything in this Agreement to the contrary, to the extent that any Assumed Contract, Intellectual Property Contract included in the Purchased Assets may not be properly assigned or Registration is not assignable transferred without the consent of another a third party, or if the assignment or attempted assignment of any such Contract would constitute a violation or breach thereof or a violation of any law, nothing in this Agreement shall not will constitute an assignment or an attempted assignment thereof if such assignment and, except as provided for in SECTION 3.3(c), Purchaser will not be deemed to assume any liabilities or attempted assignment would constitute a breach thereof or a default thereunderobligations thereunder until properly assigned. The Seller Companies and Buyer shall each the Purchaser Companies will use commercially reasonable efforts to obtain the consent any such consents; provided, however, that commercially reasonable efforts shall not include any requirement of [****]*, any Party to commence any litigation or offer or grant any accommodation (financial or otherwise) to any other Person.
(b) To the extent requiredthat the consents described in SECTION 3.3(a) are not obtained prior to Closing, for each of the assignment of any Assumed Contracts to which it is a party. Seller shall Companies will use its commercially reasonable efforts to obtain any and all consents necessary for (i) provide the effective assignment to and assumption by Buyer applicable Purchaser Company with the economic benefits of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtainedContract until its termination date, Seller shall (ii) cooperate with Buyer in any reasonable lawful arrangement designed to provide for Buyer the such benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contractapplicable Purchaser Company and (iii) enforce, Intellectual Property or Registration, including enforcement at the cost request of and for the account of Buyer the applicable Purchaser Company at its expense, any rights of such Seller Company arising from any such Contract against any third party, including the right to elect to terminate such Contract in accordance with the terms thereof upon the advice of Purchaser. The failure or inability to obtain any consent subject to this SECTION 3.3(b) will not be a breach of this Agreement so long as the Seller Companies have carried out their obligations under this SECTION 3.3(b).
(c) To the extent that a Purchaser Company is provided the benefits of any Contract pursuant to SECTION 3.3(b), Purchaser will perform or cause its Affiliates to perform the obligations of the applicable Seller Company thereunder or in connection therewith, at no cost to such Seller Company, including reimbursing the applicable Seller Company for rent and other costs for any such Contract for Leased Real Property, but only to the extent (i) that such action by Purchaser would not result in any default thereunder or in connection therewith and (ii) such performance pertains to the benefits provided to a Purchaser Company. The Purchaser Companies will indemnify the Seller Companies against any and all rights of Seller against the other party thereto Losses (as defined in SECTION 8.1) arising out of any default by a Purchaser Company in the breach or cancellation thereof by performance of such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registrationobligations. The indemnification of the Seller Companies under this SECTION 3.3 will be governed by the indemnification provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained set forth in Section 9.1 has not been fulfilledARTICLE VIII hereto.
Appears in 1 contract
Samples: Purchase Agreement (Heidrick & Struggles International Inc)
Third Party Consents. To the extent that any Assumed Contract, Intellectual Property or Registration of the Purchased Assets is not assignable without the consent consent, waiver or approval of another partyPerson under any applicable Contract or Law, neither this Agreement nor any Ancillary Document shall not constitute an assignment or or• an attempted assignment thereof of such Purchased Asset if such assignment or attempted assignment would constitute a breach thereof and such consent, waiver or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, approval is not obtained prior to the extent requiredClosing (each, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts"Outstanding Consent"); provided, the Intellectual Propertyhowever, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent that this sentence shall not be obtainedconstrued to have any effect on any of the representations or warranties set forth in this Agreement. The Sellers, Seller at their sole cost and expense, shall cooperate with Buyer in any reasonable arrangement designed arrange to provide for Buyer the Purchaser with the rights, use and benefits intended to be assigned * Certain information on this page has been omitted and filed separately with to the Sec. Confidential treatment has been requested Purchaser with respect to the omitted portions. underlying Purchased Asset related to Buyer under the relevant Assumed Contract, Intellectual Property or Registrationany Outstanding Consent, including all current pricing arrangements with vendors of the Business in effect immediately prior to the Closing and enforcement at the cost and for the account of Buyer of any and all rights of Seller the Sellers against the other party parties thereto arising out of the breach or cancellation thereof by such other party parties or otherwise, with the Purchaser (or, if not allowable or practicable, the Sellers at the cost of the Purchaser) satisfying any and all of the Liabilities that may arise, directly or indirectly, following the Closing in connection therewith, including by the Sellers subcontracting, sublicensing or subleasing to the Purchaser such Liabilities; provided, that all reasonable out-of-pocket expenses of such arrangement and related actions shall be paid by the Sellers. Furthermore, if the other party's consent, waiver or approval in connection with any Outstanding Consent is subsequently obtained, then the Sellers shall immediately sell, transfer, convey, assign and deliver such Purchased Asset to the Purchaser for no additional consideration. If and to the extent that such arrangement cannot be mademade in respect of any Outstanding Consent promptly following the Closing, Buyer the Purchaser shall have no further obligation pursuant to Section 2.3 or otherwise with respect to any the Purchased Assets to which such Assumed ContractOutstanding Consent pertains and the Purchase Price shall be correspondingly reduced in an amount to be determined by the Purchaser, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained acting reasonably and in Section 9.1 has not been fulfilledgood faith.
Appears in 1 contract
Samples: Asset Purchase Agreement
Third Party Consents. To the extent that Seller or any Assumed Seller Subsidiary’s rights under any agreement, Contract, Intellectual Property commitment, lease, Permit, or Registration is other Transferred Asset to be assigned to Buyer hereunder may not assignable be assigned without the consent of another partyPerson which has not been obtained prior to or as of Closing, this Agreement shall not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. be unlawful, and Seller and Buyer shall each agrees to use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(asuch required consent(s) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered as promptly to Buyeras possible after Closing. If any such consent shall not be obtainedobtained or if any attempted assignment would be ineffective or would impair Buyer’s rights under the Transferred Asset in question so that Buyer would not in effect acquire the benefit of all such rights, Seller and Buyer shall cooperate with Buyer in any lawful and commercially reasonable arrangement designed arrangement, as Buyer may reasonably request, under which Buyer would, to provide the maximum extent permitted by Law and the Transferred Asset, obtain the economic Claims, rights and benefits under such Transferred Asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing such Transferred Asset to Buyer. Seller shall promptly pay to Buyer when received all monies received by Seller under such Transferred Asset or any Claim or right or any benefit arising thereunder and Buyer shall promptly pay Seller for all liabilities of Seller associated with such Transferred Asset that would otherwise constitute “Assumed Liabilities” had such Transferred Asset been assigned to Buyer at the benefits intended Closing. Nothing in this Agreement shall be construed as having obligated Seller to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested have paid or committed to pay any amount in order to obtain any consent, waiver, or approval with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and Contracts with third parties prior to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledClosing.
Appears in 1 contract
Third Party Consents. To The Company shall use commercially reasonable efforts to obtain, or cause to be obtained, any approvals or consents necessary to convey to Buyer the extent that benefit of all Purchased Assets, including, without limitation, any Assumed Contract, Intellectual Property Contracts licensing to the Company any images or Registration is not assignable without videos appearing on the consent Company’s websites and marketing materials as of another partythe Closing Date (the “Photographer Agreements”). Anything contained herein to the contrary notwithstanding, this Agreement shall not constitute an assignment or agreement to assign any property, an attempted assignment thereof if such assignment or attempted assignment thereof, without the consent of any other Person party thereto, would constitute a breach thereof or a default thereunderin any way negatively affect the rights of Buyer (such property referred to as “Unassignable Property”), and any Unassignable Property shall not be included in the Purchased Assets unless and until such requisite consent is obtained. Seller In the event any consent or approval to an assignment contemplated hereby is not obtained on or prior to the Closing Date, the Company and Buyer shall cooperate with each use commercially reasonable efforts other in an arrangement reasonably designed to provide that Buyer shall receive the Company’s interest in the benefits under any such Unassignable Property, provided that Buyer shall undertake to pay or satisfy the corresponding liabilities for the enjoyment of such benefit to the extent Buyer would have been responsible therefor if such consent or approval had been obtained and the Company shall have no obligation to pay or satisfy such corresponding liabilities. Without limiting the foregoing, in the event the Company is unable to obtain the consent of [****]*, or approval to the extent required, for the an assignment of any Assumed Contracts Photographer Agreement prior to which it is the Closing Date, the Company shall continue to work in good faith towards obtaining such consents or approvals, and the Company hereby grants to Buyer a party. Seller shall use its commercially reasonable efforts fully-paid up, non-exclusive, and royalty free right and license to obtain any and all consents necessary for the effective assignment to and assumption by Buyer rights of the Assumed Contracts, Company pursuant to the Intellectual Property, Photographer Agreements that are sublicensable or otherwise transferrable by the Registrations and the Assumed LiabilitiesCompany, including the Third Party Consents right to use any images licensed (together, the “Photographer Licensed Rights”) for a reasonable period after the Closing sufficient to allow the Buyer to use such Photographer Licensed Rights in a manner consistent with the use of such rights prior to the Closing Date until such assets can be reasonably replaced, which period shall be no less than 90 days from the Closing Date; provided that (a) Buyer’s use of such images shall not breach the terms of any such Photographer Agreements as of the date hereof, and (b) the foregoing license shall terminate as to each Photographer Agreement assigned to Buyer prior to the expiration of the license term. The Company agrees that other than as set forth on Attachment 4.2(a) hereto and in this Section 6.6 for the consents set forth on Schedule 6.3 benefit of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect or pursuant to the omitted portions. to Buyer under Transition Services Agreement, the relevant Assumed Contract, Intellectual Property Company will not use or Registration, including enforcement at the cost and provide a license or other right for the account of Buyer of any and all rights of Seller against the other party thereto arising out to use any of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledPhotographer Licensed Rights.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cpi Corp)
Third Party Consents. To (a) Seller and Buyer agree that the extent third party consents that are listed on Schedule 8.7(a) and which the underlying Contract has not expired or terminated prior to the Closing Date shall be all of the third party consents needed to satisfy the condition precedent described in Section 9.4 (the "Necessary Third Party Consents"). Buyer agrees to assume all risk and liability resulting from the failure to obtain any other third party consents that are required in connection with the sale and assignment of the Subject Business and the Acquired Assets from Seller to Buyer, but are not treated as between Seller and Buyer as Necessary Third Party Consents. Buyer agrees to cooperate in good faith with Seller and take all commercially reasonable actions, other than the payment of consent money, in connection with obtaining the Necessary Third Party Consents and the release of Seller or its Affiliates with respect to a guarantee, if any, that is associated with a Necessary Third Party Consent. Buyer understands that certain of the Assumed Contracts are in the name of one of Seller's Affiliates and the parties agree to use commercially reasonable efforts, other than the payment of consent money, in connection with obtaining the consent of the third party.
(b) As soon as practicable after the date hereof, Buyer and Seller agree to work in good faith to begin notifying the Customers, suppliers and other Persons having current business relationships with the Subject Business that the Subject Business is under contract to be sold to Buyer, and Buyer and Seller agree to cooperate in good faith and to take all commercially reasonable and necessary actions, other than the payment of consent money to a third party, required to assign to Buyer each Assumed Contract and obtain a release of Seller and its Affiliates with respect to any Assumed Contract guarantees. In addition, within 10 days after the Closing Date, Buyer shall confirm, in writing, to all Customers, suppliers and other Persons having current business relationships with the Subject Business that the Subject Business has been sold to Buyer; and the form of such notice shall be reasonably acceptable to Seller and shall additionally contain a provision in all notices to vendors and suppliers under the Operating Contracts assigned to Buyer that the Seller shall not be responsible for the payment for any goods or services that are provided under the Operating Contracts from and after the Closing Date. Except with respect to the Necessary Third Party Consents that are not waived by Buyer, if Seller is unable to obtain the requisite consent to assignment of any Assumed Contract or the release of Seller or its Affiliates with respect to a guarantee of any Assumed Contract prior to the Closing Date, the obtaining of such consent shall not be a condition to Closing. If Buyer and Seller should determine that any consent to assignment to Buyer is reasonably necessary to the continued operation of the Subject Business either commercially or in accordance with Applicable Law, then, except where such action would be unlawful or prohibited by the affected Assumed Contract, Intellectual Property Seller shall retain the affected Assumed Contract and shall enter into an arrangement with Buyer to provide Buyer with the benefits of such Assumed Contract until such Assumed Contract is properly assigned to Buyer or Registration is not assignable without expires at the consent of another partyearliest opportunity in accordance with its terms, this Agreement provided, that Buyer shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. perform Seller's obligations thereunder arising after the Closing and Buyer shall indemnify Seller against any Damages arising in connection therewith from and after the Closing.
(c) From and after the date hereof, Seller and Buyer shall each cooperate for the purpose of causing Buyer to be substituted, as of the Closing Date, for Seller and its Affiliates and Buyer shall use commercially reasonable efforts to obtain cause the consent release of [****]*Seller and its Affiliates, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer as of the Assumed ContractsClosing Date, the Intellectual Propertywith respect to each letter of credit, the Registrations and the Assumed Liabilitiesguaranty, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 bond or other indemnity obligation of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If Seller or any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested of its Affiliates with respect to the omitted portionsSubject Business (collectively, the "Seller Guarantee Obligations") listed on Schedule 8.7(c); provided, however, that Buyer will not have any obligation to pay any fees or expenses in connection with obtaining any such release and substitution other than the costs and expenses associated with the replacement bonds or other sureties. to Buyer under the relevant Assumed ContractIn addition, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contractother Seller Guarantee Obligation that the parties become aware of, Intellectual Property Buyer agrees that it will cooperate for the purpose of causing Buyer to be substituted, as of the Closing Date, for Seller and its Affiliates and use commercially reasonably efforts to cause the release of Seller and its Affiliates, as of the Closing Date. Buyer agrees to be responsible for all of the normal fees of Seller and its Affiliates and all Damages incurred by Seller or Registration. The provisions any of this Section 2.7 shall not affect its Affiliates under any Seller Guarantee Obligation or any drawing made or acceptance delivered thereunder with respect to events giving rise to liability under any Seller Guarantee Obligation occurring from and after the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledClosing Date.
Appears in 1 contract
Third Party Consents. To Unless otherwise agreed to by the Purchaser, to the extent that any Assumed Contract, Intellectual Property or Registration Contract is not assignable without the consent of another partyConsent, this Agreement shall not constitute an assignment or an attempted assignment thereof thereof, or an assumption or attempted assumption of Obligations and Liabilities arising thereunder, if such assignment assignments or attempted assignment would constitute a breach thereof or a default thereunderunless the necessary Consents are obtained. The Seller and Buyer the Shareholder shall each use commercially reasonable best efforts to obtain the consent of [****]*, to the extent required, Consents required for the assignment of any Assumed Contracts the Purchased Assets. The Purchaser will cooperate to which it is a party. Seller shall use its the extent commercially reasonable with the Seller and the Shareholder in their efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to BuyerConsents. If any such consent Consent shall not be obtained, Seller then either, at the Purchaser's option, (i) the Contract shall be an Excluded Asset and the Purchaser shall not assume any Obligations and Liabilities related thereto or arising thereunder, or (ii) the Seller, the Shareholder and the Purchaser shall cooperate with Buyer in any a reasonable arrangement designed to provide (a) providing for Buyer the Purchaser the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with to the Sec. Confidential treatment has been requested Purchaser hereunder with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, any such other Contract (including enforcement at the cost and for the account of Buyer the Purchaser of any and all rights of the Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise), (b) to relieve the Seller of its obligations to the other contracting party under any such Contract. If and to the extent that such arrangement cannot be mademade on terms and conditions acceptable to the Seller, Buyer the Shareholder and the Purchaser, the Purchaser shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed ContractContract or any Obligation Liability with respect thereto, Intellectual Property or Registrationand the Closing Balance Sheet and the Closing Adjustments shall be adjusted accordingly, with any additional Purchase Price adjustment as a result thereof being paid to Purchaser pursuant to the terms of Section 2.2(c) hereof. The Without limiting the provisions of this Section 2.7 Section, the Seller and the Purchaser shall use commercially reasonable efforts to enter into, and shall cooperate with one another in good faith in entering into, appropriate and reasonable alternative arrangements pursuant to clause (ii) above, if elected by the Purchaser, on terms mutually agreeable, with respect to any Contract which is not, by its terms, assignable (in whole or in part) by the Seller or under which the Seller may not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to assign its obligations hereunder contained in Section 9.1 has not been fulfilledor delegate its duties.
Appears in 1 contract
Third Party Consents. To the extent that (a) If Sellers’ or Owner’s rights to any Assumed Contract, Intellectual Property or Registration is Purchased Asset may not assignable be transferred without the consent of another partyperson or entity, and if such consent has not been obtained as of the Closing Date as applicable, despite the exercise by Sellers or Owner of their respective reasonable efforts, this Agreement shall not constitute an assignment or agreement to transfer such Purchased Asset (a “Non-Transferred Purchased Asset”) if an attempted assignment transfer thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunderbe unlawful. Seller In any such case, Sellers and Owner, to the maximum extent permitted by law, (i) shall act as the Buyer’s agent to obtain for Buyer the benefits and satisfy the associated obligations related to the Non-Transferred Purchased Asset, and (ii) shall cooperate with Buyer in any other reasonable arrangement designed to provide those benefits to the Buyer, including by agreeing to remain liable under any applicable contract, and Buyer shall each with cooperation from Sellers make any payments with respect to a Non-Transferred Purchased Asset required to obtain the benefit thereof.
(b) With respect to any Equipment Indebtedness that is not a Non-Transferred Purchased Asset and may not be transferred without the consent of another person or entity, and if such consent has not been obtained as of the Closing Date despite the exercise by Sellers or Owner of their respective reasonable efforts, Sellers shall continue to perform, and make all payments required, under the terms of such Equipment Indebtedness until such time as such Equipment Indebtedness is transferred to Buyer and Buyer assumes the related Equipment Indebtedness. Until such transfer and assumption, the Parties shall cooperate to allow Buyer to make any payments required pursuant to such Equipment Indebtedness on behalf of Sellers. The Parties shall cooperate to obtain a release of Owner and Sellers, as applicable, from the applicable Equipment Indebtedness at the time of its transfer and assumption.
(c) Nothing contained in this Section 4.9 shall relieve the Sellers or Owner of their respective obligations under any other provisions of this Agreement, including the obligation pursuant to Section 4.4 to use commercially their respective reasonable efforts to obtain the consent of [****]*, the applicable person or entity to transfer the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly Non-Transferred Purchased Asset to Buyer. If any such consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions contemplated by this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilled.
Appears in 1 contract
Third Party Consents. To the extent that any Assumed Contract, Intellectual Property Business Contract or Registration Business License is not assignable without the consent of another partyPerson, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunderthereof. Seller and Buyer Purchaser shall each use commercially reasonable efforts before the Closing Date to obtain the consent of [****]*, all such other Persons to the extent required, for the assignment of any Assumed Contracts such Business Contract or Business License to Purchaser in all cases in which it such consent is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary or may be required for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyerassignment. If any such consent shall not be obtained, Seller shall cooperate with Buyer Purchaser in any reasonable arrangement designed to provide for Buyer Purchaser the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer Purchaser under the relevant Assumed ContractBusiness Contract or Business License, Intellectual Property or Registrationincluding, including but not limited to, enforcement at the cost of Seller and for the account of Buyer Purchaser of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer Purchaser shall have no obligation or liability pursuant to Section 2.3 or otherwise under this Agreement or the Operative Agreements with respect to any such Assumed ContractBusiness Contract or Business License. If, Intellectual Property in the opinion of Purchaser, the absence of a third party consent has deprived Purchaser of a material benefit of its bargain hereunder or Registrationunder the Operative Agreements, and if Seller and Purchaser have been unable to agree upon an arrangement designed to provide for Purchaser the benefits intended to be assigned to it, then the parties agree to negotiate in good faith an offset to the Purchase Price paid by Purchaser hereunder for that part of the benefit which the parties agree has been lost. The provisions of Nothing in this Section 2.7 2.6 shall not affect be deemed to waive the right rights of Buyer the Purchaser not to consummate the transactions contemplated by this Agreement or the Operative Agreements if the condition conditions to its obligations hereunder contained in Section 9.1 has 3.5 have not been fulfilled.
Appears in 1 contract
Samples: Product Asset Purchase Agreement (King Pharmaceuticals Inc)
Third Party Consents. To the extent that Seller’s rights under any Assumed ContractContract or Permit constituting a Purchased Asset may not be sold, Intellectual Property assigned, transferred or Registration is not assignable delivered to Buyer without the consent or waiver of another partyPerson which has not been obtained on or prior to the Closing Date, this Agreement shall not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller be unlawful, and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*Seller, to the extent requiredat its expense, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable best efforts to obtain any such required consent(s) and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(awaiver(s) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered as promptly to Buyeras possible. If any such consent or waiver shall not be obtainedobtained or if any attempted sale, Seller assignment, transfer or delivery of any Purchased Asset would be ineffective or would impair Buyer’s rights under the Purchased Asset in question so that Buyer would not acquire the full benefit of all such rights, Seller, to the maximum extent permitted by Law and the Purchased Asset, shall cooperate act after the Closing as Buyer’s agent in order to obtain for it the benefits thereunder, and shall cooperate, to the maximum extent permitted by Law, with Buyer in any other reasonable arrangement designed to provide such benefits to Buyer. Without limiting the foregoing, at Buyer’s reasonable request Seller shall (a) cooperate in any lawful arrangement proposed by Buyer under which Buyer (or its designee(s)) would obtain the economic, operational and other benefits of any such Purchased Asset and assume any related economic burden thereunder; (b) enforce for the benefit of Buyer and as reasonably directed by Buyer Seller’s rights under such Purchased Asset as if such Purchased Asset had been sold, conveyed, assigned and delivered to Buyer, including in the benefits intended name of Seller as party to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested such Purchased Asset or otherwise as Buyer shall specify; (c) permit Buyer to enforce any rights arising with respect to the omitted portions. thereto; and (d) promptly pay to Buyer under the relevant Assumed Contractall income, Intellectual Property or Registration, including enforcement at the cost proceeds and for the account of Buyer of any and all rights of other DM3\7875356.18 monies received by Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and from third parties to the extent that related to Buyer’s intended rights under such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer not to consummate the transactions Purchased Asset as contemplated by this Agreement if Section 2.07. Once such consent, authorization, approval, waiver, notice or novation is obtained or made, Seller shall sell, assign, transfer, convey and deliver to Buyer the condition relevant Purchased Asset to its obligations hereunder contained in Section 9.1 has not been fulfilledwhich such consent or waiver relates for no additional consideration.
Appears in 1 contract
Third Party Consents. (a) To the extent that any Assumed Contract, Intellectual Property or Registration Third-Party Consent is not assignable without the consent of another required (i) under any Contract to which FAMCO is a party, this Agreement FAMCO and Principal shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, such Third-Party Consent on or prior to the extent requiredClosing Date; provided, for however, that notwithstanding anything to the assignment contrary in this Agreement, Seller and its Affiliates shall not have any obligation under this Agreement to pay any money or other consideration to any Person or to initiate any claim or proceeding against any Person in order to obtain any Third-Party Consents.
(b) In furtherance (and without limitation) of any Assumed Contracts Section 5.8(a) above, with respect to which it is a party. Seller shall each Separate Account Client, Purchaser and Principal shall, and cause FAMCO to, use its commercially reasonable efforts to obtain any and all consents necessary for obtain, as promptly as practicable following the effective assignment date hereof, such consent of such Separate Account Client to and assumption by Buyer the “assignment” of its Advisory Contract resulting from the consummation of the Assumed Contracts, transactions contemplated hereby as is required by the Intellectual Property, the Registrations terms of such Advisory Contract and the Assumed LiabilitiesInvestment Advisers Act (each such consent, including a “Separate Account Consent”). The parties hereto agree that the Third Party Consents set forth on Attachment 4.2(aSeparate Account Consent for any such Advisory Contract shall be deemed given for all purposes of this Agreement as follows: (i) hereto if written consent is required under Applicable Law or the applicable Advisory Contract, upon receipt of written consent prior to the Closing Date, or (ii) if consent other than written consent is sufficient under Applicable Law and the consents set forth on Schedule 6.3 applicable Advisory Contract, (A) upon receipt of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyer. If any such a written consent shall not be obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect prior to the omitted portions. to Buyer under the relevant Assumed ContractClosing Date or (B) if no such written consent is received, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer if 30 days shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registration. The provisions passed since the sending of this Section 2.7 shall not affect the right a notice of Buyer not to consummate the transactions contemplated by this Agreement if and the condition related assignment of the applicable Advisory Contract (which notice must be sent by FAMCO to the Separate Account Client at least 30 days prior to the Closing Date); provided, however, that any Advisory Client who has informed FAMCO or Purchaser, whether orally or in writing, of its obligations hereunder contained intention to terminate or seek a material modification of the terms of its Advisory Contract with FAMCO, withdraw assets under management by FAMCO (other than in the ordinary course of business consistent with past practice), put its account up for bid or refuse or delay its consent prior to the Closing Date shall be deemed not to have provided its Separate Account Consent unless, as of the Closing Date, such notice shall have been rescinded or withdrawn.
(c) In furtherance (and without limitation) of Section 5.8(a) above, with respect to each Sponsored Fund, Purchaser and Principal shall, and cause FAMCO to, use commercially reasonable efforts to obtain, as promptly as practicable following the date hereof, such consents of investors in each of the Sponsored Funds representing a majority-in-interest of the limited partners or members of such Sponsored Fund (as applicable) to the “assignment” of such Sponsored Fund's Advisory Contract resulting from the consummation of the transactions contemplated hereby (each such consent, a “Sponsored Fund Consent”).
(d) In furtherance (and without limitation) of Section 5.8(a) above, with respect to each Sub-Advised Fund, the Seller shall, and shall cause FAMCO to, use commercially reasonable efforts to obtain, as promptly as practicable following the date hereof, the due consideration and approval by the board of directors or trustees (as applicable) of such Sub-Advised Fund (each such approval, a “Fund Board Approval”) of, in accordance with section 15 of the Investment Company Act, a new Advisory Contract with FAMCO or the Purchaser or its Affiliate to be in effect as of the Closing Date (and subject to the Closing), in all material respects on the same terms and conditions as the terms of FAMCO's existing Advisory Contract relating to such Sub-Advised Fund (with the exception of the effective and termination dates of such Advisory Contract) or otherwise in form and substance reasonably satisfactory to the Purchaser. To the extent Fund Board Approval has been obtained with respect to a new Advisory Contract relating to a Sub-Advised Fund in accordance with this Section 5.8(d), the Seller shall, and shall cause FAMCO to, use commercially reasonable efforts to cause the sponsor of such Sub-Advised Fund to obtain, as promptly as practicable following the date of such Fund Board Approval, the due consideration and approval by the shareholders of such Sub-Advised Fund (each such approval, a “Fund Shareholder Approval”) of such new Advisory Contract in accordance with section 15 of the Investment Company Act.
(e) Seller and Purchaser shall cooperate, jointly plan and share information with respect to all material communications with any Advisory Clients with respect to the transactions contemplated by this Agreement following the Closing. All notices and related materials distributed to any Advisory Clients in connection with obtaining any Client Consents or any other Third-Party Consents pursuant to this Section 5.8 shall be in form and substance reasonably acceptable to Seller, and to the extent not restricted under the terms of the applicable Advisory Contract or Applicable Law.
(f) Upon the request of Purchaser, Seller shall (i) use commercially reasonable efforts to assist Purchaser in obtaining the Third-Party Consents pursuant to this Section 5.8, and (ii) prepare the form of all notices and consents required to obtain the Third-Party Consents, to the extent reasonably requested by Purchaser; provided, however, that notwithstanding anything to the contrary in this Agreement, except as set forth in Section 9.1 has not been fulfilled11.4, neither Seller nor any of its Affiliates shall have any obligation under this Agreement to pay any money or other consideration to any Person or to initiate any claim or proceeding against any Person in order to obtain any Third-Party Consents. All such notices and consents shall be in compliance with the terms of the applicable Advisory Contract and Applicable Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Piper Jaffray Companies)
Third Party Consents. To As promptly as practicable after the extent that date hereof, the respective Seller will give all required notices to any Assumed Contractthird parties and will use commercially reasonable efforts to obtain the consents, Intellectual Property novations or Registration is not assignable without waivers (prior to the consent of another partyClosing) set forth on Schedule 2.1.5. Notwithstanding anything contained herein to the contrary, this Agreement shall not constitute an assignment or an attempted assignment thereof of any Contract if such assignment or attempted assignment would constitute be a breach thereof or a default thereunderwithout the counterparty’s consent. Seller Sellers and Buyer shall each use commercially reasonable efforts following the Closing to obtain the consent of [****]*all consents, to the extent requirednovations, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents waivers set forth on Schedule 6.3 of 2.1.5 to the Disclosure Schedule. All such consents shall be in writing extent not obtained prior to Closing, and executed counterparts thereof shall be delivered promptly to Buyer. If any such consent shall not be obtainedfrom and after the Closing Date, Seller Sellers and Buyer shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer under such Contract, provided, however, that neither Sellers nor Buyer shall not be required to incur out-of-pocket expenses or agree to any monetary obligations or non-monetary commitments in connection with the relevant foregoing. In the case of Assumed Contracts included in the Acquired Assets, if such consents, novations or waivers are not obtained on or prior to the Closing Date, or if an attempted assignment would be ineffective, until such consent, novation or waiver is obtained, Sellers shall use commercially reasonable efforts to (i) provide to Buyer the benefits of each such Assumed Contract, Intellectual Property or Registration(ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer and (iii) enforce, including enforcement at the cost request and expense of Buyer and for the account of Buyer Buyer, any rights of any Seller arising from any such Assumed Contract; and Sellers will promptly pay to Buyer when received all rights of monies received by any Seller against the other party thereto arising out of the breach or cancellation thereof by under such other party or otherwiseAssumed Contract, except for any monies received under any such Assumed Contract that would constitute an Excluded Asset. If and to To the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to is provided the benefit of any such Assumed Contract, Intellectual Property Buyer will perform or Registrationdischarge, on behalf of the applicable Seller, such Seller’s obligations and liabilities under each such Assumed Contract in accordance with the provisions thereof except for any obligations and liabilities under any such Assumed Contract that constitute a Retained Liability. The provisions of this Section 2.7 shall not affect Once a necessary consent, novation or waiver is obtained, the right of applicable Assumed Contract will be deemed to have been automatically transferred to Buyer not to consummate on the transactions contemplated by terms set forth in this Agreement if with respect to the condition other Assumed Contracts transferred and assumed at the Closing, and consistent with the foregoing, the obligations pursuant to its obligations hereunder contained in Section 9.1 has not been fulfilledthe applicable Assumed Contract will be deemed to be Assumed Liabilities, and the rights pursuant to the applicable Assumed Contract will be deemed to be Acquired Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sanfilippo John B & Son Inc)
Third Party Consents. 4.3.1. To the extent that Seller's rights under any Assumed ContractContracts, Intellectual Property Assumed Liability, Lease or Registration is any other Asset (including any claim or right to any benefit arising thereunder or resulting therefrom), to be assigned to Purchaser hereunder may not assignable be assigned without the consent of another partyperson which has not been obtained by Seller prior to the Closing, neither this Agreement nor any of the instruments of transfer, assignment or conveyance as set forth above shall not constitute an assignment or agreement to assign the same if an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Seller be unlawful, and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, to the extent required, for the assignment of any Assumed Contracts to which it is a party. Seller shall use its commercially all reasonable efforts to obtain any and all such required consents necessary for as promptly as possible after the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, Closing Date (including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyerany postponed Closing Date). If (i) any such consent has not been obtained or (ii) any attempted assignment would be ineffective or would impair Purchaser's rights under the instrument in question so that Purchaser would not in effect acquire the benefit of all such rights, then Seller, to the maximum extent permitted by law and the instrument, shall not act as Purchaser's agent in order to obtain for Purchaser the benefits thereunder subsequent to the Closing Date and, as may be obtainedappropriate, Seller shall cooperate with Buyer Purchaser in any other reasonable arrangement designed to provide for Buyer to
4.3.2. If, prior to the benefits intended Closing Date, Purchaser determines in its sole discretion that it does not wish to assume that certain agreement listed as item 1 to Exhibit 6.12(ii), Purchaser shall notify Seller, and the parties shall agree that such agreement shall be assigned * Certain information on this page has been omitted an Excluded Asset and filed separately the liabilities associated with such agreement shall be Excluded Liabilities. Furthermore, in the Sec. Confidential treatment has been requested event Seller is notified pursuant to the preceding sentence, Purchaser and Seller shall enter into a subcontracting arrangement pursuant to which Seller shall act as Purchaser's agent with respect to the omitted portions. such agreement and shall take all actions necessary to Buyer under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and obtain for the account of Buyer of any and Purchaser all rights of Seller against the other party thereto arising out of the breach or cancellation thereof benefits thereunder. In connection with such arrangement, (a) Seller shall (i) comply with all obligations under such agreement and (ii) without further consideration therefor pay and remit to Purchaser promptly all monies, rights and other considerations received in respect of Seller's performance of the obligations under such agreement and (b) Purchaser shall reimburse Seller for all costs and expenses incurred by Seller in complying with the obligations under such other party or otherwise. If and to the extent that such arrangement cannot be made, Buyer shall have no obligation pursuant to Section 2.3 or otherwise with respect to any such Assumed Contract, Intellectual Property or Registrationagreement. The provisions of arrangement set forth in this Section 2.7 4.3.2 shall not affect terminate on the right one-year anniversary of Buyer not the termination or expiration of the agreement referred to consummate the transactions contemplated by in this Agreement if the condition to its obligations hereunder contained in Section 9.1 has not been fulfilled4.3.2.; 4.4.
Appears in 1 contract
Third Party Consents. To the extent that any Assumed Contract, Intellectual Property or Registration Contract is not assignable without the consent of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof or a default thereunder. Purchaser and Seller and Buyer shall each use commercially reasonable efforts to obtain the consent of [****]*, such other party to the extent required, for the assignment of any such Assumed Contracts Contract to Purchaser in all cases in which it such consent is or may be required for such assignment or, in the alternative, a party. Seller shall use its commercially reasonable efforts to obtain any and all consents necessary for the effective assignment to and assumption by Buyer of the Assumed Contracts, the Intellectual Property, the Registrations and the Assumed Liabilities, including the Third Party Consents set forth on Attachment 4.2(a) hereto and the consents set forth on Schedule 6.3 of the Disclosure Schedule. All such consents shall be in writing and executed counterparts thereof shall be delivered promptly to Buyerreplacement contract. If any such consent or replacement contract shall not be obtained, Seller shall cooperate with Buyer Purchaser in any reasonable arrangement designed to provide for Buyer Purchaser the benefits intended to be assigned * Certain information on this page has been omitted and filed separately with the Sec. Confidential treatment has been requested with respect to the omitted portions. to Buyer Purchaser under the relevant Assumed Contract, Intellectual Property or Registration, including enforcement at the cost and for the account of Buyer of any and all rights of Seller against the other party thereto arising out of the breach or cancellation thereof by such other party or otherwise. If and to the extent that such arrangement cannot be mademade to the satisfaction of Seller and Purchaser, Buyer Purchaser may, at its option, either:
(i) waive the conditions to closing set forth in Section 6.07 and proceed to consummate the transactions contemplated by this Agreement; provided, however, Seller and the Stockholder shall indemnify and hold Purchaser harmless from any and all Losses resulting from the failure to obtain such consent; or
(ii) (A) if the Assumed Contract at issue is the agreements for the card shufflers listed in Section 2.17(a) of the Disclosure Schedule (the “Card Shuffler Agreements”) (solely in the event that the card shufflers described therein have no obligation pursuant not been purchased by Seller prior to Section 2.3 Closing and included within the Assets) or otherwise (B) in the event that in excess of 10% of the Table Game Licenses are not assigned to Purchaser or replaced with respect to any such Assumed Contractnew and substantially similar contracts by Closing, Intellectual Property or Registration. The provisions of this Section 2.7 shall not affect the right of Buyer elect not to consummate the transactions contemplated by this Agreement if in accordance with Section 6.07 as a result of Seller’s failure to fulfill the condition to its obligations hereunder contained in Section 9.1 has not been fulfilledclosing condition.
Appears in 1 contract
Samples: Asset Purchase Agreement (Nevada Gold & Casinos Inc)