Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to Closing, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”). (b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto. (c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith. (d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations set forth herein.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Barnes Group Inc), Asset Purchase Agreement (MSC Industrial Direct Co Inc)
Consent of Third Parties. (a) For each Transferred Notwithstanding anything in this Agreement or in any Related Agreement to the contrary, neither this Agreement nor any such Related Agreement shall constitute an agreement to assign or otherwise transfer, or require the Buyer to assume any obligations under, any Assigned Contract and Transferred Permit where if an attempted assignment or transfer thereof would, without the consent of a third party is required for to such assignment but or transfer, constitute a breach thereof, would be ineffective, would affect adversely the rights of the Buyer thereunder or would violate any applicable law. If any such consent has not been obtained as of the Closing Date and the Buyer nevertheless determines to proceed with the Closing, the Buyer may waive the closing condition that such consent be delivered at the Closing, and the Company shall use its best efforts to obtain such consent following the Closing, and the Buyer will provide reasonable cooperation to the Company in seeking to obtain any such consent. The Company shall pay and discharge any and all out-of-pocket costs or expenses of seeking to obtain or obtaining any such consent or approval whether before or after the Closing Date.
(b) If any Assigned Contract is not received prior transferred to Closingthe Buyer at the Closing pursuant to this Agreement, Seller the Company shall cooperate with the Buyer in any reasonable arrangement designed to provide for the Buyer all of the benefits of, and to have the Buyer assume the burdens, liabilities, obligations and expenses expressly assumed by the Buyer hereunder with respect to, such Assigned Contract. In such event, until such consent has been obtained, (i) the Buyer shall use commercially reasonable efforts (which to perform in the Company’s name, and, in respect of the incremental costs incurred by the Buyer in performing in the Company’s name, at the Company’s expense, all of the Company’s obligations with respect to each Assigned Contract; provided, however, that the Company shall not include be required to take any action in performing such obligations which, in the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred PermitBuyer’s reasonable judgment, as applicable, to novate the Seller Group’s obligations and rights to would subject the Buyer Group to any Liability or an unreasonable risk of incurring any such Liability and (as directed ii) the Company shall take all actions reasonably requested by Buyer), so that the Buyer (or, as applicable, another member to enforce for the benefit of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, any and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent rights of the third party thereto would constitute a breach thereof or would be ineffective Company with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Assigned Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To The Company hereby authorizes the extent Buyer to perform all of its obligations after the Closing with respect to all Assigned Contracts that any such consents and waivers are not obtained, or until assigned to the impediments Buyer at the Closing and the Company hereby grants to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment Buyer a power of any consent fees) attorney to (i) provide to Buyer (or, as applicable, another member act in the name of the Buyer Group as designated by Buyer), at the request Company with respect thereto. Such power of Buyer, the benefits of any such Transferred Contract or Transferred Permit attorney shall be coupled with an interest and shall be irrevocable. The Company agrees to remit promptly to the extent related to Buyer all collections or payments received by the BusinessCompany in respect of all such Assigned Contracts, (ii) cooperate and shall hold all such collections or payments in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and trust for the benefit of of, and promptly pay the same over to, the Buyer; provided, however, that nothing herein shall create or provide any rights or benefits in or to third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewithparties.
(d) It is understood and agreed that, notwithstanding anything to the contrary Nothing in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have 1.6 shall be deemed to modify in any liability respect any of the Company’s representations or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations warranties set forth hereinherein or be deemed to constitute an agreement to exclude from the Acquired Assets any assets described under Section 1.1.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Homeland Security Capital CORP), Asset Purchase Agreement (DJSP Enterprises, Inc.)
Consent of Third Parties. (a) For each Transferred Nothing in this Agreement nor the consummation of the transactions contemplated hereby will be construed as an attempt or agreement to assign (i) any Shared Contract and Transferred or (ii) any Purchased Asset, including any Contract, Permit where or other right, which by its terms or by Law is nonassignable without the consent or waiver of a third party or a Governmental Body or is required for assignment but cancelable by a third party in the event of an assignment, unless and until such consent or waiver is obtained (any such Purchased Assets for which consent or waiver have not received been obtained at or prior to the Closing, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable ContractNonassignable Assets”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent Material Permits that any such consents and waivers are not obtained, or until the impediments to such assignment are resolvedNonassignable Assets, Seller shall will use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4at its request during the period commencing on the date hereof and ending on the date that is 180 days after the Closing Date in endeavoring to obtain promptly any consents or waivers with respect to such Permits.
(c) With respect to Material Contracts that are Nonassignable Assets or that are Shared Contracts, Buyer and Seller will not have any liability or obligation use their respective commercially reasonable efforts to develop and implement a mutually agreeable arrangement under which Buyer if any consent is not obtained or if Buyer is not able to would obtain the benefits referred and perform and discharge the obligations thereunder in accordance with this Agreement, or under which the applicable Seller would enforce for the benefit of Buyer, at Buyer’s sole cost and expense, with Buyer being responsible for the performance and discharge of Seller’s obligations, any and all rights of Seller thereunder against a third party. Buyer will also use commercially reasonable efforts to above, and Buyer shall indemnify Seller and its Affiliates enter into a separate Contract with respect to any the third party claims arising from Seller’s compliance with to each Contract described in the immediately foregoing sentences of this Section 1.4(c) on comparable terms as promptly as practicable after the Closing. The obligations set forth hereinof Seller under this Section 1.4(c) will terminate and expire one year after the Closing Date.
Appears in 2 contracts
Sources: Asset Purchase Agreement (BOISE CASCADE Co), Asset Purchase Agreement (BOISE CASCADE Co)
Consent of Third Parties. On the Closing Date, Sellers shall assign to Purchasers, and Purchasers will assume, the Assigned Contracts, in each case, to the extent permitted by, and in accordance with, applicable Law. Notwithstanding anything herein to the contrary, if the assignment or assumption of all or any portion of any rights or obligations under any Assigned Contract shall require the consent of any other party thereto or any other Third Party that has not been obtained prior to the Closing Date, this Agreement shall not constitute an agreement to assign, license, sublicense, lease, sublease, convey or otherwise transfer any rights or obligations under any such Assigned Contract. In order, however, to seek to provide Purchasers the full realization and value of every Assigned Contract of the character described in the immediately preceding sentence: (a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to as soon as practicable after the Closing, Seller Sellers and Purchasers shall use commercially cooperate, in all reasonable efforts (which shall not include the payment of any consent fees) respects, to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights any necessary consents to the Buyer Group (as directed by Buyerassignment of the Assigned Contracts listed on Schedule 1.1(a), so provided that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract neither Party shall be required to make any payments or Transferred Permit, as applicableagree to any material undertakings in connection therewith, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to earliest of: (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any date all such Transferred Contract or Transferred Permit to the extent related to the Businessconsents are obtained, (ii) cooperate in any reasonable and lawful arrangement designed to provide the date all such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and Assigned Contracts expire or are terminated; or (iii) enforcethe date which is three (3) months from the Closing Date, at Sellers and Purchasers shall cooperate, in all reasonable respects, to provide to Purchasers the request of benefits under the Assigned Contracts (with Purchasers being entitled to all the gains and responsible for the account of Buyerall Losses, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right Taxes and Liabilities thereunder), subject to elect all Liabilities thereunder. In connection with this Section 2.6, if reasonably requested by Purchasers, Sellers shall use Commercially Reasonable Efforts to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and seek to enforce for the benefit of any third Person (including any Governmental Authority) Purchasers all reasonable claims or rights of Sellers arising under the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed thatapplicable Assigned Contracts at Purchasers expense; provided, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer that Purchasers shall indemnify Seller Sellers and its Affiliates for any and all Losses arising in connection with any Action by a Third Party arising from, in connection with or otherwise with respect to actions taken or failed to be taken by Sellers or any third party claims arising from Seller’s compliance with of its Affiliates at Purchasers request pursuant to this Section 2.6. Purchasers shall perform and comply with, at Purchasers cost, all of Sellers obligations under the obligations set forth hereinAssigned Contracts accruing on or after the Closing Date as if Purchasers were Sellers thereunder.
Appears in 2 contracts
Sources: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement (Pernix Therapeutics Holdings, Inc.)
Consent of Third Parties. (a) For each Transferred Notwithstanding anything in this Agreement or in any Related Agreement to the contrary, neither this Agreement nor any such Related Agreement shall constitute an agreement to assign or otherwise transfer, or require the Buyer to assume any obligations under, any Assigned Contract and Transferred Permit where if an attempted assignment or transfer thereof would, without the consent of a third party is required for to such assignment but or transfer, constitute a breach thereof, would be ineffective, would affect adversely the rights of the Buyer thereunder or would violate any applicable law. If any such consent has not been obtained as of the Closing Date and the Buyer nevertheless determines to proceed with the Closing, the Buyer may waive the closing condition that such consent be delivered at the Closing, and the Company shall use its best efforts to obtain such consent following the Closing, and the Buyer will provide reasonable cooperation to the Company in seeking to obtain any such consent. The Company shall pay and discharge any and all out-of-pocket costs or expenses of seeking to obtain or obtaining any such consent or approval whether before or after the Closing Date.
(b) If any Assigned Contract is not received prior transferred to Closingthe Buyer at the Closing pursuant to this Agreement, Seller the Company shall cooperate with the Buyer in any reasonable arrangement designed to provide for the Buyer all of the benefits of, and to have the Buyer assume the burdens, liabilities, obligations and expenses expressly assumed by the Buyer hereunder with respect to, such Assigned Contract. In such event, until such consent has been obtained, (i) the Buyer shall use commercially reasonable efforts (which to perform in the Company’s name, and, in respect of the incremental costs incurred by the Buyer in performing in the Company’s name, at the Company’s expense, all of the Company’s obligations with respect to each Assigned Contract; provided, however, that the Company shall not include be required to take any action in performing such obligations which, in the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred PermitBuyer’s reasonable judgment, as applicable, to novate the Seller Group’s obligations and rights to would subject the Buyer Group to any Liability or an unreasonable risk of incurring any such Liability and (as directed ii) the Company shall take all actions reasonably requested by Buyer), so that the Buyer (or, as applicable, another member to enforce for the benefit of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, any and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent rights of the third party thereto would constitute a breach thereof or would be ineffective Company with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Assigned Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To The Company hereby authorizes the extent Buyer to perform all of its obligations after the Closing with respect to all Assigned Contracts that any such consents and waivers are not obtained, or until assigned to the impediments Buyer at the Closing and the Company hereby grants to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment Buyer a power of any consent fees) attorney to (i) provide to Buyer (or, as applicable, another member act in the name of the Buyer Group as designated by Buyer), at the request Company with respect thereto. Such power of Buyer, the benefits of any such Transferred Contract or Transferred Permit attorney shall be coupled with an interest and shall be irrevocable. The Company agrees to remit promptly to the extent related to Buyer all collections or payments received by the BusinessCompany in respect of all such Assigned Contracts, (ii) cooperate and shall hold all such collections or payments in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and trust for the benefit of of, and promptly pay the same over to, the Buyer; provided, however, that nothing herein shall create or provide any rights or benefits in or to third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewithparties.
(d) It is understood and agreed that, notwithstanding anything to the contrary Nothing in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have 1.7 shall be deemed to modify in any liability respect any of the Company’s representations or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations warranties set forth hereinherein or be deemed to constitute an agreement to exclude from the Acquired Assets any assets described under Section 1.1.
Appears in 1 contract
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to ClosingOn the Closing Date, Seller the Sellers shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights assign to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyerwill assume, the benefits of any such Transferred Contract or Transferred Permit Assigned Leases and Assigned Contracts, to the extent related provided in this Agreement, in each case to the Business, (ii) cooperate in any reasonable extent permitted by and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense said Assigned Leases and liability, on behalf of the Seller Group Assigned Contracts and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding applicable Law. Notwithstanding anything to the contrary in this Agreement, if the foregoingassignment or assumption of all or any portion of any rights or obligations under any Assigned Lease or Assigned Contract shall require the consent of the other party thereto or any other third party that has not been obtained prior to the Closing Date, so long as Seller uses its commercially reasonable efforts and if an attempted assignment or transfer without any such consent would constitute a breach or violation thereof (a “Non-Assignable Contract”), then this Agreement shall not constitute an agreement to cooperate assign or otherwise transfer any rights or obligations under any such Non-Assignable Contract. In connection with Buyer as contemplated by this Section 2.41.4, Seller will not have any liability if reasonably requested by the Buyer, the Sellers shall use Reasonable Efforts to seek to enforce for the benefit of the Buyer all reasonable claims or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain rights of the benefits referred to aboveSellers arising under the applicable Non-Assignable Contracts; provided, and however, that the Buyer shall indemnify Seller and its Affiliates hold harmless the Sellers for any and all Liabilities arising in connection with any action by a third party arising from, in connection with, or otherwise with respect to any third party actions taken or failed to be taken by the Sellers at the Buyer’s request pursuant to this Section 1.4, and that the Buyer shall reimburse the Sellers for all reasonable and documented out-of-pocket expenses incurred by the Sellers arising from, in connection with or otherwise with respect to actions taken by the Sellers at the Buyer’s request pursuant to this Section 1.4. To the extent such claims arising from Selleror rights under the Non-Assignable Contracts are made available to the Buyer, the Buyer shall perform and comply with, at the Buyer’s compliance with sole cost, all of the Sellers’ obligations set forth hereinunder the Non-Assignable Contracts as if the Buyer was the Sellers thereunder.
Appears in 1 contract
Consent of Third Parties. (a) For As of the Effective Time, Seller shall assign to Buyer, and Buyer will assume, the Assigned Contracts to the extent provided in this Agreement, in each Transferred case to the extent permitted by, and in accordance with, applicable Law. Schedule 2.5 sets forth a complete list of all Assigned Contracts that require Third Party consent prior to assignment. Notwithstanding anything herein to the contrary, if the assignment or assumption of all or any portion of any rights or obligations under any Assigned Contract and Transferred Permit where shall require the consent of a third any other party is required for thereto or any other Third Party that has not been obtained prior to the Effective Time, this Agreement shall not constitute an agreement to assign, license, sublicense, lease, sublease, convey or otherwise transfer any rights or obligations under any such Assigned Contract if an attempted assignment but or license, etc. without any such consent is not received prior would constitute a breach or violation thereof. In order, however, to seek to provide Buyer the full realization and value of every Assigned Contract of the character described in the immediately preceding sentence: (i) as soon as practicable after the Closing, Seller shall use its commercially reasonable efforts to obtain any remaining necessary consents to the assignment of the Assigned Contracts and Buyer shall cooperate in all reasonable respects; [***]; and (ii) until the earliest of: (A) the date on which all such consents are obtained, or (B) the date on which all such Assigned Contracts expire pursuant to their terms, [***]. In connection with this Section 2.5, if reasonably requested by Buyer, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and enforce for the benefit of any third Person (including any Governmental Authority) Buyer all reasonable claims or rights of Seller arising under the applicable Assigned Contracts. Upon assignment to Buyer, Buyer shall perform and comply with, at Buyer’s cost, all of Seller’s obligations of under the Assigned Contracts as if Buyer were Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed thatthereunder, notwithstanding anything subject to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by other applicable terms and conditions of this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations set forth hereinAgreement.
Appears in 1 contract
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to ClosingOn the Closing Date, the Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights assign to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved Buyer will assume, the Assigned Contracts to the extent provided in this Agreement. To the extent that the assignment of all further obligations and rights. Nothing in or any portion of any Assigned Contract shall require the consent of the other party thereto or any other third party, this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of agreement to assign any Transferred such Assigned Contract or Transferred Permit if the an attempted assignment or novation thereof without any such consent of the third party thereto would constitute a breach thereof or would violation thereof. In order, however, to seek to provide the Buyer the full realization and value of every Assigned Contract of the character described in the immediately preceding sentence (a) as soon as practicable after the Closing, the Seller and the Buyer shall cooperate, in all reasonable respects, to obtain any necessary consents to the assignment of the Assigned Contracts, provided that neither Party shall be ineffective with respect required to make any payments or agree to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
material undertakings in connection therewith, and (b) With respect to any Unassignable Contractuntil all such consents are obtained or all such Assigned Contracts expire or are terminated, Buyer (or, as applicable, another member of the Seller and the Buyer Group as designated by Buyershall cooperate, in all reasonable respects, to provide to the Buyer the benefits under the Assigned Contracts (with the Buyer entitled to all the gains and responsible for all the losses, Taxes, liabilities and/or obligations thereunder). In connection with clause (b) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit 2.1(e), the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay seek to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), enforce at the request cost of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations Buyer all claims or rights of the Seller Group arising under each Transferred Contract the Assigned Contracts, and Transferred Permit or the Buyer shall perform and comply with, at the Buyer's cost, all of the Seller's obligations under the Assigned Contracts as if the Buyer was the Seller thereunder. Nothing in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have 2.1(e) shall in any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain way diminish the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations set forth hereincondition in Section 6.1(f) of this Agreement.
Appears in 1 contract
Consent of Third Parties. (a) For each Transferred On the Closing Date, the Seller shall assign to the Buyer, and the Buyer shall assume, the Assigned Contracts to the extent provided in this Agreement. To the extent that the assignment of all or any portion of any Assigned Contract and Transferred Permit where shall require the consent of a the other party thereto or any other third party is required for party, this Agreement shall not constitute an agreement to assign any such Assigned Contract if an attempted assignment but without any such consent is not received prior would constitute a breach or violation thereof. In order, however, to seek to provide the Buyer the full realization and value of every Assigned Contract of the character described in the immediately preceding sentence (i) as soon as practicable after the Closing, the Seller and the Buyer shall use commercially cooperate, in all reasonable efforts (which shall not include the payment of any consent fees) respects, to obtain any necessary consents to the consent assignment of the Assigned Contracts, provided that neither party shall be required to make any payments or agree to any material undertakings in connection therewith, and approval of (ii) until all such third party to consents are obtained or all such Transferred Contract Assigned Contracts expire or Transferred Permitare terminated, as applicablethe Seller and the Buyer shall cooperate, in all reasonable respects, to novate the Seller Group’s obligations and rights provide to the Buyer Group the benefits under the Assigned Contracts (as directed by Buyerwith the Buyer entitled to all the gains and responsible for all the losses, Taxes and Liabilities thereunder). In connection with clause (ii) of this Section 2.5, so that Buyer (or, as applicable, another member the Seller shall seek to enforce at the cost of and for the benefit and risk of the Buyer Group as directed by Buyer) is substituted for all claims or rights of the Seller Group arising under the Assigned Contracts to the extent such Transferred Contract claims or Transferred Permit, as applicablerights are included in the Purchased Assets, and the Buyer shall perform and comply with, at the Buyer’s cost, all of the Seller’s obligations under the Assigned Contracts, to the extent such obligations are Assumed Liabilities as if the Buyer was the Seller Group is relieved of all further obligations and rightsthereunder. Nothing in this Agreement Section 2.5 shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of in any Transferred Contract or Transferred Permit if way diminish the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions conditions in Article IX of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating theretoAgreement.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations set forth herein.
Appears in 1 contract
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any of the Liberty Sub Contracts, Liberty Sub Permits, Liberty Sub Warranties, Holdings Contracts, Holdings Permits or Holdings Warranties or any claim, right or benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party is required Person thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of Holdings or Liberty Sub, as the case may be, thereunder. Liberty Sub or Holdings, as applicable, will use reasonable best efforts to obtain the consent of the other parties to any such Liberty Sub Contract, Liberty Sub Permit, Liberty Sub Warranty, Holdings Contract, Holdings Permit or Holdings Warranty, as the case may be, for the assignment but thereof to Holdings or Liberty Sub, as applicable. If such consent is not received obtained prior to the Closing, Seller shall use commercially reasonable efforts (which shall not include or if an attempted assignment thereof would be ineffective or would adversely affect the payment rights of any consent fees) to obtain Holdings or Liberty Sub, as the consent and approval of such third party to such Transferred Contract case may be, thereunder so that Holdings or Transferred PermitLiberty Sub, as applicable, would not in fact receive all such rights, Liberty Sub and Holdings will cooperate to novate achieve a mutually agreeable arrangement under which (i) Holdings would obtain the Seller Group’s benefits and assume the obligations and rights thereunder (but only to the Buyer Group extent such obligations would have constituted Liberty Sub Assumed Liabilities if such assignment occurred on the Closing Date) from and after the Closing Date in accordance with this Agreement, including subcontracting, sublicensing or subleasing to Holdings, or under which Liberty Sub would enforce for the benefit of Holdings, with Holdings assuming Liberty Sub's obligations to the same extent as if it would have constituted a Liberty Sub Assumed Liability, and any and all rights of Liberty Sub against a third Person thereto; and (ii) Liberty Sub would obtain the benefits and assume the obligations thereunder (but only to the extent such obligations would have constituted Holdings Assumed Liabilities if such assignment occurred on the Closing Date) from and after the Closing Date in accordance with this Agreement, including subcontracting, sublicensing or subleasing to Liberty Sub or under which Holdings would enforce for the benefit of Liberty Sub with Liberty Sub assuming Holdings' obligations to the same extent as directed by Buyer)if it would have constituted a Holdings Assumed Liability, so that Buyer (or, and any and all rights of Holdings against a third Person thereto. Liberty Sub or Holdings as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior will pay promptly to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) other applicable party when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, Liberty Sub or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (orHoldings, as applicable, another member after the Closing Date under any of the Buyer Group Liberty Sub Contracts, Liberty Sub Permits, Liberty Sub Warranties, Holdings Contracts, Holdings Permits or Holdings Warranities, as designated by Buyer)the case may be, at the request of Buyeror any claim, the benefits of any such Transferred Contract right or Transferred Permit benefit arising thereunder to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (orthat Holdings or Liberty Sub, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewithwould be entitled thereto pursuant hereto.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations set forth herein.
Appears in 1 contract
Sources: Asset Exchange Agreement (Liberty Group Publishing Inc)
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to ClosingOn the Closing Date, the Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights assign to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved Buyer will assume, the Assigned Contracts and the Other Assigned Contracts, to the extent provided in this Agreement, in each case to the extent permitted by and in accordance with applicable Law. Notwithstanding anything to the contrary in this Agreement, if the assignment or assumption of all further or any portion of any rights or obligations under any Assigned Contract shall require the Consent of the other party thereto or any other third party that has not been obtained prior to the Closing Date (or otherwise are not in full force and rights. Nothing effect) and, if applicable, the Buyer waives the condition set forth in Section 7.2(c) and the Closing occurs, then this Agreement shall be deemed not constitute an agreement to (x) require Seller to seek a novation assign or consent for assignment of a Transferred otherwise transfer any rights or obligations under any such Assigned Contract or Transferred Permit where such Transferred Other Assigned Contract or Transferred Permit does not require consent, or (y) constitute if an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof transfer without consent of the third party thereto any such Consent would constitute a breach or violation thereof or would be ineffective (each, a "Restricted Assigned Contract"). Following the Closing the Parties shall use their Reasonable Efforts, and cooperate with respect each other, to any party obtain the required Consent relating to such Transferred each Restricted Assumed Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable as soon as practicable and, pending the receipt of the required Consent for the Restricted Assumed Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) Parties shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate with each other in any reasonable and lawful arrangement arrangements designed to provide such to the Buyer the benefits to Buyer of use of the Restricted Assumed Contract for its term (oror any right or benefit arising thereunder, as applicable, another member including the enforcement for the benefit of the Buyer Group of any and all rights of the Seller against a third party thereunder); provided, however, that, except as designated set forth in the Transition Services Agreement (i) the Buyer shall indemnify and hold harmless the Seller and its Affiliates for any and all Liabilities arising in connection with any action by a third party arising from, in connection with, or otherwise with respect to actions taken or failed to be taken by the Seller at the Buyer's request pursuant to this Section 1.4, and (ii) the Buyer shall reimburse the Seller for all reasonable and documented out‑of‑pocket expenses incurred by the Seller arising from, in connection with or otherwise with respect to actions taken by the Seller at the Buyer's request pursuant to this Section 1.4, and (iii) enforcethe Buyer shall perform and comply with, at the request Buyer's sole cost, all of and the Seller's obligations arising after Closing, except to the extent such obligations do not constitute an Assumed Liability, under the Restricted Assigned Contracts as if the Buyer was the Seller thereunder. Upon receipt of the required Consent for the account assignment and transfer of a Restricted Assigned Contract, the Seller shall promptly assign and transfer such Restricted Assigned Contract to the Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of and the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) assume the obligations of the Seller Group under each Transferred such Restricted Assigned Contract pursuant to a special-purpose assignment and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything assumption agreement reasonably satisfactory to the contrary Parties (which special-purpose agreement the Parties shall prepare, execute and deliver in good faith at the foregoingtime of such transfer, so long as Seller uses its commercially reasonable efforts all at no additional cost to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations set forth hereinBuyer).
Appears in 1 contract
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where Nothing in this Agreement shall be construed as an attempt by the Seller to assign to the Buyer pursuant to this Agreement any Contract, permit, franchise, claim, or asset included in the Purchased Assets that is by its terms, Contract, or Law nonassignable without the consent of a third any other party is required for assignment but or parties, unless such consent is or approval shall have been given, or as to which all the remedies for the enforcement thereof available to the Seller would not received prior by Contract pass to Closingthe Buyer as an incident of the assignments provided for by this Agreement (a “Non-Assignable Contract”). To the extent that any Seller Required Consent in respect of, or a novation of, a Non-Assignable Contract shall not have been obtained on or before the Closing Date, the Seller Parties shall continue to use commercially reasonable efforts (which shall not include the payment of any consent feesmoney by the Seller Parties) to obtain any such Seller Required Consent or novation after the consent and approval of Closing Date until such third party to such Transferred Contract or Transferred Permit, time as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicableit shall have been obtained, and the Seller Group is relieved shall cooperate with the Buyer in any economically feasible arrangement to provide that the Buyer shall receive the interest of all further obligations and rightsthe Seller in the benefits under such Non-Assignable Contract, including performance by the Seller as agent if economically feasible, provided that the Buyer shall undertake to pay or satisfy the corresponding Liabilities under the terms of such Non-Assignable Contract to the extent that the Buyer would have been responsible therefor if such consent or approval had been obtained. Nothing in this Agreement This Section 2.7 shall not be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of agreement to exclude from the Purchased Assets any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute Contracts as to which a breach thereof or would Seller Required Consent may be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent necessary. Except for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations set forth hereinin this Section 2.7, the Seller Parties shall have no Liability to the Buyer or Parent for failing to obtain any Seller Required Consent.
Appears in 1 contract
Sources: Asset Purchase Agreement (World Health Alternatives Inc)
Consent of Third Parties. Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any Asset (aincluding, without limitation, any Commerce Agreement or any interest of Commerce in any Commerce Permit) For each Transferred Contract and Transferred Permit where or any claim or right or any benefit arising thereunder or resulting therefrom if such assignment, without the consent of a third party is required for assignment but thereto, would constitute a breach or other contravention of such consent is not received prior to ClosingAsset or in any way adversely affect the rights of Cygne thereunder. Each of Commerce, Seller shall the Members and Cygne will use commercially reasonable their best efforts (which shall not include the but without any payment of money or incurrence of any consent feesadditional liability by them except to the extent the terms of any Commerce Agreement requires Commerce to pay or incur any costs in connection with an assignment of such agreement, in which case Commerce shall pay such costs) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted other parties to any such Asset or any claim or right or any benefit arising thereunder for the Seller Group under assignment thereof to Cygne as Cygne may request. If such Transferred Contract or Transferred Permit, as applicable, and the Seller Group consent is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until if an attempted assignment thereof would be ineffective or would adversely affect the impediments to rights of Cygne thereunder so that Cygne would not in fact receive all such assignment are resolvedrights, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) Commerce and Cygne will cooperate in any reasonable and lawful arrangement a mutually agreeable arrangement, including sub-contracting, sub-licensing or sub-leasing to Cygne, designed to provide such Cygne after the Closing with the benefits intended to Buyer (orbe assigned to Cygne with respect to the underlying Asset, as applicableincluding in the case of any Asset that is a Commerce Agreement, another member enforcement of the Buyer Group as designated by Buyer) and (iii) enforce, rights thereunder at the request of cost and for the account of BuyerCygne, and, provided Cygne receives all such benefits, Cygne shall pay or satisfy any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates liabilities with respect to such Commerce Agreement as and when they are due, to the extent Cygne would have been responsible therefor hereunder if such consent or approval had been obtained. Nothing in this Section 1.7 shall be deemed a waiver by Cygne of its right to have received on or before the Closing an effective assignment of all the Assets, nor shall this Section 1.7 be deemed to constitute an agreement to exclude from the Assets any third party claims arising from Seller’s compliance with the obligations set forth hereinassets described in Section 1.1.
Appears in 1 contract
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to Closing, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed construed as an attempt or obligation to (x) require Seller to seek a novation assign any contract, agreement, permit, license, guaranty, warranty, franchise or consent for assignment of a Transferred Contract claim included in the Assets which is by its terms or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if by law nonassignable without the attempted assignment or novation thereof without consent of the third other party thereto would constitute or parties thereto, unless such consent shall have been given, or as to which all the remedies for the enforcement thereof enjoyed by Seller would, as a breach thereof matter of law, pass to Purchaser as an incident of the assignments provided for by this Agreement (any such contract, agreement, permit, license, guaranty, warranty, franchise or would claim, a "Non-Assignable Right"). In order, however, to provide Purchaser the full realization and value of every Non-Assignable Right, Seller agrees that on and after the Closing, it will, at the request and under the direction of Purchaser, in the name of Seller or otherwise as Purchaser shall specify, take all actions necessary or proper (a) to assure that the rights of Seller under such Non-Assignable Rights shall be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
preserved for the benefit of Purchaser and (b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member facilitate receipt of the Buyer Group as designated consideration to be received by Buyer) Seller in and under every such Non-Assignable Rights, which consideration shall be deemed such member of held for the Seller Group’s agent for purpose of completingbenefit of, fulfilling and discharging all of such member of the Seller Group’s liabilities thereundershall be delivered to, Purchaser. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to From and after the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use its commercially reasonable efforts (which shall not include the but without any payment of any consent feesmoney by Purchaser or Seller) to obtain the consent of the other parties to any Non-Assignable Right for the assignment thereof to Purchaser as Purchaser may request, and upon receipt of such consent, Seller shall take such other actions pursuant to Section 9.1 hereof to assign such Non-Assignable Right to Purchaser as Purchaser may request. Nothing in this Section 9.2 shall in any way diminish (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract Seller's obligations under Section 6.3 or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or Purchaser's obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain pay, perform and discharge the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations set forth hereinAssumed Liabilities.
Appears in 1 contract
Consent of Third Parties. On the Closing Date, Seller shall assign to Buyer, and Buyer shall assume, the Contracts and the Permits which are to be transferred to Buyer as provided in this Agreement by means of an Assignment and Assumption Agreement. To the extent that the assignment of all or any portion of any Contract or Permit shall require the consent of the other party thereto or any other third party, this Agreement shall not constitute an agreement to assign any such Contract or Permit included in the Acquired Assets if an attempted assignment without any such consent would constitute a breach or violation thereof. In order, however, to provide Buyer the full realization and value of every Contract and Permit of the character described in the immediately preceding sentence, Seller agrees that on and after the Closing, Seller will, at the request and under the direction of Buyer, in the name of Seller or otherwise as Buyer shall specify, take all reasonable actions (including without limitation the appointment of Buyer as attorney-in-fact for Seller to proceed at Buyer’s sole cost and expense) and do or cause to be done all such things to the extent both necessary and proper, (a) For each Transferred to preserve the rights of Seller under such Contracts and Permits for the benefit of Buyer and (b) to facilitate receipt of the consideration to be received by Seller in and under every such Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to Closing, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted which consideration shall be held for the Seller Group under such Transferred Contract or Transferred Permit, as applicablebenefit of, and the Seller Group is relieved of all further obligations and rightsshall be delivered to, Buyer. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 2.6 shall in no any way limit the obligation of Seller pursuant diminish Seller’s obligations under Section 5.5 hereof or to this Agreement to seek take all such consents other actions prior to the Closing. Seller shall promptly pay or at Closing as are necessary to Buyer enable Sellers to convey or assign good and marketable title free and clear of Liens (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent feesother than Permitted Liens) to (i) provide all the Acquired Assets to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations set forth herein.
Appears in 1 contract
Sources: Asset Purchase Agreement (Integrated Electrical Services Inc)
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where Nothing in this Agreement nor the consummation of the transactions contemplated hereby shall be construed as an attempt or agreement to assign any Purchased Asset, including any Contract, Permit, Intellectual Property, certificate, approval, authorization or other right, which by its terms or by Law is nonassignable without the consent of a third party or a Governmental Authority or is required for cancelable by a third party in the event of an assignment but (“Nonassignable Assets”) unless and until such consent is not received prior to Closing, shall have been obtained. Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicableshall, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consentcause its Affiliates to, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable best efforts to cooperate with Buyer at its request in endeavoring to obtain such consents promptly. To the extent permitted by applicable Law, in the event consents to the assignment thereof cannot be obtained, such Nonassignable Assets shall be held, as contemplated of and from the Closing Date, by this Section 2.4Seller or the applicable Affiliate of Seller in trust for Buyer and the covenants and obligations thereunder shall be performed by Buyer in Seller’s or such Affiliate’s name and all benefits and obligations existing thereunder shall be for Buyer’s account. Seller shall take or cause to be taken at Seller’s expense such actions in its name or otherwise as Buyer may reasonably request so as to provide Buyer with the benefits of the Nonassignable Assets and to effect collection of money or other consideration that becomes due and payable under the Nonassignable Assets, and Seller or the applicable Affiliate of Seller shall promptly pay over to Buyer all money or other consideration received by it in respect of all Nonassignable Assets. As of and from the Closing Date, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller on behalf of itself and its Affiliates authorizes Buyer, to the extent permitted by applicable Law and the terms of the Nonassignable Assets, at Buyer’s expense, to perform all the obligations and receive all the benefits of Seller or its Affiliates under the Nonassignable Assets and appoints Buyer its attorney-in-fact to act in its name on its behalf or in the name of the applicable Affiliate of Seller and on such Affiliate’s behalf with respect to any third party claims arising from Seller’s compliance with the obligations set forth hereinthereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cambium Learning Group, Inc.)
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any of the Triple Sub Contracts, Triple Sub Permits, Triple Sub Warranties, Holdings Contracts, Holdings Permits or Holdings Warranties or any claim, right or benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party is required Person thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of Holdings or Triple Sub, as the case may be, thereunder. Triple Sub or Holdings, as applicable, will use reasonable best efforts to obtain the consent of the other parties to any such Triple Sub Contract, Triple Sub Permit, Triple Sub Warranty, Holdings Contract, Holdings Permit or Holdings Warranty, as the case may be, for the assignment but thereof to Holdings or Triple Sub, as applicable. If such consent is not received obtained prior to the Closing, Seller shall use commercially reasonable efforts (which shall not include or if an attempted assignment thereof would be ineffective or would adversely affect the payment rights of any consent fees) to obtain Holdings or Triple Sub, as the consent and approval of such third party to such Transferred Contract case may be, thereunder so that Holdings or Transferred PermitTriple Sub, as applicable, would not in fact receive all such rights, Triple Sub and Holdings will cooperate to novate achieve a mutually agreeable arrangement under which (i) Holdings would obtain the Seller Groupbenefits and assume the obligations thereunder (but only to the extent such obligations would have constituted Triple Sub Assumed Liabilities if such assignment occurred on the Closing Date) from and after the Closing Date in accordance with this Agreement, including subcontracting, sublicensing or subleasing to Holdings, or under which Triple Sub would enforce for the benefit of Holdings, with Holdings assuming Triple Sub’s obligations and rights to the Buyer Group same extent as if it would have constituted a Triple Sub Assumed Liability, and any and all rights of Triple Sub against a third Person thereto; and (ii) Triple Sub would obtain the benefits and assume the obligations thereunder (but only to the extent such obligations would have constituted Holdings Assumed Liabilities if such assignment occurred on the Closing Date) from and after the Closing Date in accordance with this Agreement, including subcontracting, sublicensing or subleasing to Triple Sub or under which Holdings would enforce for the benefit of Triple Sub with Triple Sub assuming Holdings’ obligations to the same extent as directed by Buyer)if it would have constituted a Holdings Assumed Liability, so that Buyer (or, and any and all rights of Holdings against a third Person thereto. Triple Sub or Holdings as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior will pay promptly to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) other applicable party when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, Triple Sub or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (orHoldings, as applicable, another member after the Closing Date under any of the Buyer Group Triple Sub Contracts, Triple Sub Permits, Triple Sub Warranties, Holdings Contracts, Holdings Permits or Holdings Warranities, as designated by Buyer)the case may be, at the request of Buyeror any claim, the benefits of any such Transferred Contract right or Transferred Permit benefit arising thereunder to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (orthat Holdings or Triple Sub, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewithwould be entitled thereto pursuant hereto.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations set forth herein.
Appears in 1 contract
Sources: Asset Exchange Agreement (Triple Crown Media, Inc.)
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to Closing, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding Notwithstanding anything to the contrary in this Agreement or any Ancillary Agreement, neither this Agreement nor any Ancillary Agreement shall constitute an agreement to assign, assume or transfer, any Permit, Assumed Contract (other than the foregoingPower Contract), so long as or any claim, right, benefit or obligation arising thereunder or resulting therefrom if the assignment or transfer thereof or the attempt to make an assignment or transfer thereof without the Consent of a third party would constitute a material breach thereof or affect adversely the rights and/or obligations of Purchaser or Seller uses its thereunder. Any transfer or assignment to Purchaser by Seller of any interest, or assumption by Purchaser of any obligation, under any such Permit or Assumed Contract (other than the Power Contract) that requires the Consent of a third party to make any assignment or transfer thereof shall be made subject to such Consent being obtained. In the event any such Consent is not obtained prior to the Closing Date, Seller shall continue to use all commercially reasonable efforts to obtain any such Consent on or after the Closing Date until such time as such Consent has been obtained, and Seller will cooperate with Buyer Purchaser in any lawful arrangement requested by Purchaser to provide that Purchaser shall receive the interest of Seller, in the benefits under any such Permit or Assumed Contract (other than the Power Contract), including sublicensing, subcontracting or performance by Seller as contemplated by agent; provided, however, that Purchaser shall undertake to pay or satisfy the corresponding liabilities for the enjoyment of such benefit to the extent Purchaser would have been responsible therefor hereunder if such Consent had been obtained prior to the Closing Date (and Seller shall pay or bear responsibility for any additional liabilities). Seller shall pay and discharge, and shall indemnify and hold Purchaser harmless from and against, any and all reasonable out-of-pocket costs of seeking to obtain or obtaining any such Consent on or after the Closing Date. Nothing in this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain 2.07 shall be deemed a waiver by Purchaser of the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations conditions set forth hereinin Sections 6.01(e) or 6.01(f) or its right to have received at or prior to the Closing an effective assignment of all of the Purchased Assets and/or Assumed Contracts (including the Power Contract), nor shall this Section 2.07 be deemed to constitute an agreement to exclude from the Purchased Assets any asset.
Appears in 1 contract
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to Closing, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed construed as an attempt or agreement to (x) require Seller to seek a novation assign any asset, contract, lease, permit, license or consent for assignment of a Transferred Contract other right which would otherwise be included in the Purchased Assets but which is by its terms or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if by law non-assignable without the attempted assignment or novation thereof without consent of the third other party or parties thereto or any Governmental Authority unless such consent shall have been given, or as to which all the remedies for the enforcement thereof enjoyed by any Transferor or the Business would constitute not, as a breach thereof or would be ineffective with respect matter of law, pass to any party to such Transferred Contract or Transferred Permit (Transferee as an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member incident of the Buyer Group assignments provided for by this Agreement (the "NON-ASSIGNABLE ASSETS"). Each Transferor agrees to use Reasonable Efforts to obtain such consent or consents promptly. At such time as designated by Buyer) any Non-Assignable Asset is properly assigned to the appropriate Transferee, such Non-Assignable Asset shall become a Purchased Asset. Following the Closing and until such time as such Non-Assignable Assets may be properly assigned to the appropriate Transferee, such Non-Assignable Assets shall be deemed such member held in trust for the appropriate Transferee and the covenants and obligations thereunder shall be performed by the appropriate Transferee in the name of the Seller Group’s agent for purpose of completingTransferor, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 benefits and obligations existing thereunder shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and be for the account of Buyerthe appropriate Transferee. During such period, any rights the Transferor shall take or cause to be taken such action in its name or otherwise as the appropriate Transferee may reasonably request, at the appropriate Transferee's expense, so as to provide the appropriate Transferee with the benefits of the Seller Group arising from any such Transferred Contract Non-Assignable Assets and to effect collection of money or Transferred Permit against any third Person other consideration to become due and payable under the Non-Assignable Assets, and the Transferor shall promptly pay over to the appropriate Transferee all money or other consideration received by it (including any Governmental Authorityor its Affiliates) including in respect of all Non-Assignable Assets. Following the right Closing, the Transferor authorizes the appropriate Transferee, to elect to terminate in accordance with the extent permitted by applicable law and the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall performNon-Assignable Assets, at the appropriate Transferee's expense, to perform all of the obligations and receive all of the benefits under the Non-Assignable Assets and appoints the appropriate Transferee its sole expense attorney-in-fact to act in its name on its behalf (and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authorityits Affiliates) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations set forth hereinthereto.
Appears in 1 contract
Sources: Reorganization Agreement (Semiconductor Components Industries LLC)
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where Anything in this Agreement to the ------------------------ contrary notwithstanding, this Agreement shall not constitute an agreement to assign any of the Contracts or Permits 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 is required Person thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of Buyer thereunder. Seller will use reasonable best efforts to obtain the consent of the other parties to any such Contract or Permit for the assignment but thereof to Buyer. If such consent is not received obtained prior to the Closing, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), thereunder so that Buyer would not in fact receive all such rights, Seller and Buyer will cooperate to achieve a mutually agreeable arrangement under which Buyer would obtain the benefits and assume the obligations thereunder (orbut only to the extent such obligations would have constituted Assumed Liabilities if such assignment occurred on the Closing Date) from and after the Closing Date in accordance with this Agreement, including subcontracting, sublicensing or subleasing to Buyer, or under which Seller would enforce for the benefit of Buyer, with Buyer assuming Seller's obligations to the same extent as applicable, another member if it would have constituted an Assumed Liability and any and all rights of Seller against a third Person thereto. Seller will pay promptly to Buyer when received all monies received by Seller after the Closing Date under any of the Contracts or any claim or right or any benefit arising thereunder to the extent that Buyer Group as directed by Buyer) is substituted for would be entitled thereto pursuant hereto. In addition, without limiting the Seller Group under such Transferred Contract or Transferred Permitforegoing, as applicable, and Buyer agrees that to the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of extent any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third service agreements listed on Part A of Schedule 3.6(a) that Seller is a party thereto would constitute a breach thereof or would be ineffective to with respect to Tetra-Chlor, Inc., Liquid Carbonic Industries Corporation, Bio-Lab, Inc. or Fertilizer Acquisition Company III are not assigned to Buyer on the Closing Date as a result of the failure to obtain any required third party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contractconsent, Buyer (orshall assume Seller's obligations thereunder to the same extent as if it would have constituted an Assumed Liability to provide such services on behalf of Seller as Seller's subcontractor, as applicable, another member and Seller shall enforce its rights under such service agreements for the benefit of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 2.7 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations Closing condition set forth hereinin Section 6.1(c).
Appears in 1 contract
Consent of Third Parties. (a) For each Transferred Notwithstanding anything in this Agreement or in any Transaction Document to the contrary, neither this Agreement nor any such Transaction Document shall constitute an agreement to assign or otherwise transfer, or require the Buyer to assume any obligations under, any Assigned Contract and Transferred Permit where if an attempted assignment or transfer thereof would, without the consent of a third party is required for to such assignment but or transfer, constitute a breach thereof, would be ineffective, would affect adversely the rights of the Buyer thereunder or would violate any applicable Law. If any such consent has not been obtained as of the Closing Date and the Buyer nevertheless determines to proceed with the Closing, the Sellers shall use their reasonable best efforts to obtain such consent following the Closing, and the Buyer will provide reasonable cooperation to the Sellers in seeking to obtain any such consent.
(b) If any Assigned Contract is not received prior transferred to Closingthe Buyer for lack of consent as described above at the Closing pursuant to this Agreement (a “Post-Closing Assigned Contract”), Seller the Sellers shall cooperate with the Buyer in any reasonable arrangement designed to provide for the Buyer all of the benefits of, and to have the Buyer assume the burdens, liabilities, obligations and expenses with respect to, such Post-Closing Assigned Contract. In such event, until such consent has been obtained, (i) the Buyer shall use commercially reasonable efforts (which shall not include to perform in the payment applicable Seller’s name, all of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Groupapplicable Seller’s obligations with respect to each Post-Closing Assigned Contract, and rights to (ii) the Sellers shall take all actions reasonably requested by the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member to enforce for the benefit of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, any and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent rights of the third party thereto would constitute a breach thereof or would be ineffective Sellers with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Post-Closing Assigned Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To The Sellers hereby authorize the extent that any Buyer to perform all of their respective obligations after the Closing with respect to all Post-Closing Assigned Contracts and the Sellers hereby grant to the Buyer a power of attorney to act in the name of the Sellers with respect thereto. Such power of attorney shall be coupled with an interest and shall be irrevocable. The power of attorney granted to the Buyer pursuant to this Section will expire upon the actual assignment of the Post-Closing Assigned Contracts to the Buyer, at which time such consents Post-Closing Assigned Contracts will constitute an Assigned Contract and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member an Acquired Asset of the Buyer Group as designated by Buyerdescribed in Section 1.1(a), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit . The Sellers agree to remit promptly to the extent related Buyer all collections or payments received by either Seller in respect of all such Post-Closing Assigned Contracts pursuant to the Businessthis Section, (ii) cooperate and shall hold all such collections or payments in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and trust for the benefit of of, and promptly pay the same over to, the Buyer; provided, however, that nothing herein shall create or provide any rights or benefits in or to third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewithparties.
(d) It is understood and agreed that, notwithstanding anything to the contrary Nothing in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have 1.7 shall be deemed to modify in any liability respect any of the Sellers’ representations or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations warranties set forth hereinherein or be deemed to constitute an agreement to exclude from the Acquired Assets any assets described under Section 1.1.
Appears in 1 contract
Consent of Third Parties. On the Closing Date, Seller will assign to Buyer, and Buyer will assume, the Contracts and the Permits which are to be transferred to Buyer as and to the extent provided in this Agreement by means of the Assignment and Assumption Agreement referred to in Section 1.7. To the extent that the assignment of all or any portion of any Contract or Permit shall require the consent of the other party thereto or any other third party and such consent has not been obtained prior to the Closing, this Agreement and the Assignment and Assumption Agreement shall not constitute an agreement to assign any such Contract or Permit included in the Acquired Assets if an attempted assignment without any such consent would constitute a breach or violation thereof. In order, however, to provide Buyer the full realization and value of every Contract or Permit of the character described in the immediately preceding sentence, Seller agrees that on and after the Closing, it will, at the request and under the direction of Buyer, in the name of Seller or otherwise as Buyer shall specify, take all commercially reasonable actions (including the appointment of Buyer as attorney-in-fact for Seller to proceed at Buyer's sole cost and expense) to obtain such consent, including forwarding to Buyer any funds received pursuant to The Dingley Press Municipal Development and Tax Increment Financing Program, dated December 7, 1993, and the Credit Enhancement Agreement, dated as of March 1, 1994, between the Town of Lisbon, Maine and The Dingley Press, as amended (including by Amendment dated January 22, 1998). Pending obtaining such consents, Buyer and Seller shall cooperate with each other in reasonable and lawful arrangements designed (a) For each Transferred Contract to assure that the rights of Seller under such Contracts or Permits shall be preserved for the benefit of or transferred or issued to Buyer and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to Closing, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent feesb) to obtain facilitate receipt of the consent consideration to be received by Seller in and approval of under every such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted which consideration shall be held for the Seller Group under such Transferred Contract or Transferred Permit, as applicablebenefit of, and the Seller Group is relieved of all further obligations and rightsshall be delivered to, Buyer. Nothing in this Agreement Section 1.4 shall be deemed in any way diminish Seller's obligations hereunder to (x) require obtain all consents and approvals and to take all such other actions prior to or at Closing as are necessary to enable Seller to seek a novation convey or consent for assignment assign good and marketable title free and clear of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or Liens (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent feesother than Permitted Exceptions) to (i) provide all the Acquired Assets to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations set forth herein.
Appears in 1 contract
Consent of Third Parties. Further Assurances
(a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior From time to time following the Closing, Seller Sellers shall use commercially reasonable efforts (which shall not include the payment of any consent fees) execute and deliver, or cause to obtain the consent be executed and approval of such third party to such Transferred Contract or Transferred Permit, as applicabledelivered, to novate the Seller Group’s obligations Buyer such additional instruments of conveyance and rights transfer as Buyer may reasonably request or as may be otherwise necessary to the more effectively convey or transfer to, and vest in, Buyer Group (as directed by Buyer)and put Buyer in possession of, so that Buyer (or, as applicable, another member any part of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”)Purchased Assets.
(b) With Nothing in this Agreement nor the consummation of the transactions contemplated hereby shall be construed as an attempt or agreement to assign any Purchased Asset, which by its terms or by law is nonassignable ("Nonassignable Assets") without the consent of third Persons ("Consents") unless and until such Consent shall be given. Sellers agree to cooperate with Buyer at its request in endeavoring to obtain such Consents promptly; provided, however, that such cooperation shall not require Sellers to remain secondarily liable with respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating theretoNonassignable Asset.
(c) To the extent that any such consents and waivers are permitted by applicable law, in the event Consents cannot be obtained, or until the impediments to such assignment are resolved, Seller Nonassignable Assets shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (orbe held, as applicableand from the Closing Date, another member of by Sellers in trust for Buyer and the covenants and obligations thereunder shall be performed by Buyer Group as designated by in Sellers' name and all benefits and obligations existing thereunder shall be for Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith's account.
(d) It is understood Sellers shall take or cause to be taken at Buyer's expense such action in its name or otherwise as Buyer may reasonably request so as to provide Buyer with the benefits of the Nonassignable Assets and agreed thatto effect collection of money or other consideration to become due and payable under the Nonassignable Assets, notwithstanding anything and Sellers shall promptly pay over to Buyer all money or other consideration received by it in respect to all Nonassignable Assets.
(e) As of and from the Closing Date, Sellers authorize Buyer, to the contrary in extent permitted by applicable law and the foregoingterms of the Nonassignable Assets, so long as Seller uses its commercially reasonable efforts at Buyer's expense, to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain perform all the obligations and receive all the benefits referred of Sellers under the Nonassignable Assets and appoints Buyer its attorney-in-fact to above, and Buyer shall indemnify Seller and act in its Affiliates name on its behalf with respect to any third party claims arising from Seller’s compliance with the obligations set forth hereinthereto.
Appears in 1 contract
Consent of Third Parties. (a) For As of the Effective Time, Seller shall assign to Buyer, and Buyer will assume, the Assigned Contracts to the extent provided in this Agreement, in each Transferred case to the extent permitted by, and in accordance with, applicable Law. Notwithstanding anything herein to the contrary, if the assignment or assumption of all or any portion of any rights or obligations under any Assigned Contract and Transferred Permit where shall require the consent of a any other party thereto or any other third party is required for that has not been obtained prior to the Effective Time, this Agreement shall not constitute an agreement to assign, license, sublicense, lease, sublease, convey or otherwise transfer any rights or obligations under any such Assigned Contract if an attempted assignment but without any such consent would constitute a breach or violation thereof. In order, however, to seek to provide Buyer the full realization and value of every Assigned Contract of the character described in the immediately preceding sentence (i) as soon as practicable after the Closing, Seller and Buyer shall cooperate, in all reasonable respects, to obtain any remaining necessary consents to the assignment of any Assigned Contracts; provided, however, that neither Party shall be required to make any material payments or agree to any material undertakings in connection therewith, and (ii) until the earliest of: (A) the date all such consents are obtained, (B) the date all such Assigned Contracts expire or are terminated, or (C) the date which is not received prior three (3) months from the Closing Date, Seller and Buyer shall cooperate, in all reasonable respects, to Closingprovide to Buyer the benefits under the Assigned Contracts (with Buyer being entitled to all the gains and subject to, and responsible for, all Losses, Taxes and Liabilities thereunder). In connection with this Section 2.5, if reasonably requested by Buyer, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and enforce for the benefit of any third Person Buyer all reasonable claims or rights of Seller arising under the applicable Assigned Contracts; provided, however, (including any Governmental AuthorityY) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates for any and all Losses arising in connection with any Action by a third party arising from, in connection with, or otherwise with respect to any third party claims actions taken or failed to be taken by Seller at Buyer’s request pursuant to this Section 2.5 and (Z) Buyer shall reimburse Seller for all reasonable and documented out-of-pocket expenses actually incurred by Seller arising from from, in connection with, or otherwise with respect to actions taken by Seller at Buyer’s request pursuant to this Section 2.5. Buyer shall perform and comply with, at Buyer’s cost, all of Seller’s compliance with obligations under the obligations set forth hereinAssigned Contracts as if Buyer was Seller thereunder.
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Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to Closing, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed construed as an attempt by BAM to (x) require Seller assign to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller OpCo pursuant to this Agreement any Contract, Governmental Permit, franchise, claim or asset included in the BAM Contributed Assets that is by its terms or by Law nonassignable without the consent of any other party or parties, unless such consent or approval shall have been given, or as to seek such consents prior which all the remedies for the enforcement thereof available to the Closing. Seller shall promptly pay BAM would not by Law pass to Buyer (or, OpCo as applicable, another member an incident of the Buyer Group as designated assignments provided for by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
this Agreement (c) a "Non- Assignable Contract"). To the extent that any such consents and waivers are consent in respect of, or a novation of, a Non-Assignable Contract has not been obtained, or until the impediments BAM shall continue to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of obtain any such Transferred Contract consent or Transferred Permit to the extent related to the Businessnovation until such time as it shall have been obtained, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) BAM shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its use commercially reasonable efforts to cooperate with Buyer OpCo to provide that OpCo shall receive the interest of BAM in the benefits under such Non-Assignable Contract, including performance by BAM as contemplated by this Section 2.4agent if commercially reasonable, Seller will provided that OpCo shall undertake to pay or satisfy the corresponding Liabilities under the terms of such Non-Assignable Contract to the extent that OpCo would have been responsible therefor if such consent or approval had been obtained. If, despite such efforts, BAM is unable to provide OpCo with the interest of BAM in the benefits under any such Non-Assignable Contract, such Non-Assignable Contract shall not have any liability or obligation to Buyer if any consent be included in the BAM Contributed Assets, and the Liabilities under such Non-Assignable Contract shall not be included in the BAM Assumed Liabilities, in each case until such time as BAM is not obtained or if Buyer is not able to obtain provide OpCo with the interest of BAM in such benefits referred to above, and Buyer shall indemnify Seller and its Affiliates or BAM obtains the aforesaid consent or novation with respect to any third party claims arising from Seller’s the Non-Assignable Contract. Bulk Transfer Laws. Bidder, Bidder Member and OpCo each hereby waive compliance by BAM and the Transferring Partnerships with the obligations set forth hereinprovisions of any and all Laws relating to bulk transfer in connection with the sale of the BAM Contributed Assets. BAM shall indemnify OpCo from and against any and all Liabilities (including reasonable attorneys' fees) arising out of noncompliance with such bulk transfer Laws.
Appears in 1 contract
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to Closing, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require construed as an attempt by Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect assign to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement any Contract, permit, franchise, claim or Asset included in the Purchased Assets that is by its terms or by law nonassignable without the consent of any other party or parties, unless such consent or approval shall have been given, or as to seek such consents prior which all the remedies for the enforcement thereof available to the Closing. Seller shall promptly pay would not by law pass to Buyer (or, as applicable, another member an incident of the Buyer Group as designated assignments provided for by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
this Agreement (c) a “Non-Assignable Contract”). To the extent that any such consents and waivers are not obtainedSeller Required Consent in respect of, or until a novation of, a Non-Assignable Contract shall not have been obtained on or before the impediments to such assignment are resolvedClosing Date, Seller shall continue to use commercially its reasonable best efforts (which to obtain any such Seller Required Consent or novation after the Closing Date until such time as it shall not include have been obtained, and Seller shall cooperate with Buyer in any economically feasible arrangement to provide that Buyer shall receive the payment interest of Seller in the benefits under such Non-Assignable Contract, including performance by Seller as agent if economically feasible; provided that Buyer shall undertake to pay or satisfy the corresponding Liabilities under the terms of such Non-Assignable Contract to the extent that Buyer would have been responsible therefor if such consent or approval had been obtained. Seller shall pay and discharge, and shall indemnify and hold harmless Buyer and its Affiliates from and against, any and all out-of-pocket costs of seeking to obtain or obtaining any consent to the assignment of any consent fees) to Contract, whether before or after the Closing Date, except for (i) provide to Buyer (or, as applicable, another member of any vendor agreement with the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, Seller’s customers listed on Schedule 4.4 and (ii) cooperate any license for the use of a Trademark, Copyright or Patent used in any reasonable and lawful arrangement designed or on an item of Inventory where Seller’s sales of such item during the calendar year 2006 or during the period commencing January 1, 2007 through the Closing Date were or are less than $25,000 per year. Nothing contained in this Section 2.6 or elsewhere in this Agreement shall be deemed a waiver by Buyer of its right to provide such benefits to Buyer (or, as applicable, another member have received on the Closing Date an effective assignment of all of the Buyer Group as designated by Buyer) and (iii) enforce, at Purchased Assets or of the request covenant of and for the account of Buyer, any rights Seller to obtain all of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (orRequired Consents, as applicable, another member of the Buyer Group as designated by Buyer) nor shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, 2.6 or any other provision of this Agreement be deemed to constitute an agreement to exclude from the Purchased Assets any Contracts as to which a Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations set forth hereinRequired Consent may be necessary.
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Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to Closing, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require ------------------------ construed as an attempt by the Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect assign to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement any Contract, permit, franchise, claim or asset included in the Purchased Assets that is by its terms or by law nonassignable without the consent of any other party or parties, unless such consent or approval shall have been given, or as to seek such consents prior which all the remedies for the enforcement thereof available to the Closing. Seller shall promptly pay would not by law pass to Buyer (or, as applicable, another member an incident of the Buyer Group as designated assignments provided for by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
this Agreement (c) a "Non-Assignable Contract"). To the extent that any Seller Required Consent in respect of, or a novation of, a Non- Assignable Contract shall not have been obtained on or before the Closing Date, the Buyer may elect to proceed with the Closing, in which case, the Seller shall continue to use reasonable efforts to obtain any such consents and waivers are not Seller Required Consent or novation after the Closing Date until such time as it shall have been obtained, or until and the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which cooperate with the Buyer in any economically feasible arrangement to provide that the Buyer shall not include receive the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member interest of the Buyer Group as designated by Buyer), at the request of Buyer, Seller in the benefits under such Non-Assignable Contract, including performance by the Seller as agent if economically feasible, provided that Buyer shall undertake to pay or satisfy the corresponding Liabilities under the terms of any such Transferred Non- Assignable Contract or Transferred Permit to the extent related that the Buyer would have been responsible therefor if such consent or approval had been obtained. The Seller shall pay and discharge, and shall indemnify and hold harmless the Buyer and its Affiliates from and against, any and all out-of-pocket costs of seeking to obtain or obtaining any such Seller Required Consent whether before or after the Business, (ii) cooperate Closing Date. Nothing contained in any reasonable and lawful arrangement designed this Section 2.7 or elsewhere in this Agreement shall be deemed a waiver by the Buyer of its right to provide such benefits to Buyer (or, as applicable, another member have received on the Closing Date an effective assignment of all of the Buyer Group as designated by Buyer) and (iii) enforce, at Purchased Assets or of the request of and for the account of Buyer, any rights covenant of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf obtain all of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed thatRequired Consents, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by nor shall this Section 2.4, 2.7 or any other provision of this Agreement be deemed to constitute an agreement to exclude from the Purchased Assets any Contracts as to which a Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations set forth hereinRequired Consent may be necessary.
Appears in 1 contract
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to Closing, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be construed as an attempt by Seller to assign to Buyer pursuant to this Agreement any Contract, permit, franchise, claim or asset included in the Purchased Assets that is by its terms or by law nonassignable without the consent of any other party or parties, unless such consent or approval shall have been given, or as to which all the remedies for the enforcement thereof available to Seller or Tetra, as appropriate, would not by law pass to Buyer as an incident of the assignments provided for by this Agreement (a "Non-Assignable Contract"). To the extent that any Seller Required Consent in respect of, or a novation of, a Non-Assignable Contract shall not have been obtained on or before the Closing Date, Buyer may elect to proceed with the Closing, in which case, Seller and Tetra shall each continue to use reasonable efforts to obtain any such Seller Required Consent or novation after the Closing Date until such time as it shall have been obtained, or as the Parties otherwise agree, and Seller or Tetra, as appropriate, shall cooperate with Buyer in structuring and entering into an economically feasible arrangement to provide that Buyer shall receive the interest of Seller or Tetra, as appropriate, in the benefits under such Non-Assignable Contract, including performance by Seller or Tetra, as appropriate, as agent if economically feasible, provided that Buyer shall undertake to pay or satisfy the corresponding Liabilities under the terms of such Non-Assignable Contract to the extent that Buyer would have been responsible therefor if such consent or approval had been obtained and such Liabilities shall be deemed an Assumed Liability. Seller shall pay and discharge, and shall indemnify and hold harmless Buyer and its Affiliates from and against, any and all out-of-pocket costs of seeking to obtain or obtaining any such Seller Required Consent whether before or after the Closing Date. Nothing contained in this SECTION 2.7 or elsewhere in this Agreement shall be deemed a waiver by Buyer of its right to have received on the Closing Date an effective assignment of all of the Purchased Assets or of the covenant of Seller to use reasonable efforts obtain all of Seller Required Consents, nor shall this SECTION 2.7 or any other provision of this Agreement be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment agreement to exclude from the Purchased Assets any Contracts as to which a Seller Required Consent may be necessary. The Parties hereby acknowledge that there can be no assurances that the Seller will be able to obtain the Seller Required Consents prior to or novation of any Transferred Contract or Transferred Permit if after the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”)Closing.
(b) With respect Buyer shall indemnify and hold harmless such Indemnified Seller Party from and against any Damages that any Indemnified Seller Party may sustain, suffer or incur that results from, arises out of, or otherwise relates to any Unassignable Contract, Buyer (or, as applicable, another member of breach by the Buyer Group as designated by Buyer) shall be deemed such member of its obligation to pay or satisfy the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of Liabilities under the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net terms of any costs of collection relating thereto.
(c) To such Non-Assignable Contract except to the extent that any such consents and waivers damages which result from or are not obtained, attributable to any Companies' gross negligence or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member willful misconduct. The obligations of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit pursuant to the extent related this SECTION 2.7 shall continue to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and survive for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts any Company is providing services to cooperate with the Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations set forth hereinNon-Assignable Contract and for a period of three years thereafter.
Appears in 1 contract
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where Nothing in this Agreement nor the consummation of the transactions contemplated hereby shall be construed as an attempt or agreement to assign any Purchased Asset, including any contract or agreement, permit, certificate, approval, authorization or other right, which by its terms or by law is nonassignable without the consent of a third party or a governmental authority or is required for cancelable by a third party or governmental authority in the event of an assignment but (“Nonassignable Assets”) unless and until such consent is not received prior to Closing, shall have been obtained. Seller shall use its commercially reasonable efforts (which to obtain such consents promptly. Buyer shall not include use its commercially reasonable efforts to assist and cooperate with Seller in fulfilling the payment foregoing obligations. Once the consent to assignment of any consent fees) to obtain the consent and approval of Nonassignable Asset is obtained, such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement Nonassignable Asset shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay automatically assigned to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereofand conditions of this Agreement without further action by any party hereto. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) Seller shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any arising out of the operation or management of the Nonassignable Assets other than for gross negligence or willful misconduct or violations of its obligations under this Agreement. As of and from the Closing Date, Seller authorizes Buyer, to the extent permitted by applicable law and the terms of the Nonassignable Assets, at Buyer’s expense, to perform all the obligations and receive all the benefits of Seller under the Nonassignable Assets. In the event a Purchased Asset set forth on Section 5.2 of the Disclosure Schedule remains a Nonassignable Asset 14 days following the Closing Date, the principal amount due under the Promissory Note shall be reduced by the amount set forth opposite the applicable contract on Section 5.4(a) of the Disclosure Schedule. If, after a reduction of the Promissory Note pursuant to the preceding sentence, a consent is not obtained or if Buyer is not able to obtain received for such Nonassignable asset within 90 days of the benefits referred to aboveClosing Date, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations applicable amount set forth hereinon Section 5.4(a) of the Disclosure Schedule shall be returned to the principal balance due under the Promissory Note.
Appears in 1 contract
Sources: Asset Purchase Agreement (Zix Corp)
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to Closing, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require construed as an attempt by Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect assign to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement any Seller Contract, permit, franchise, claim or Asset included in the Purchased Assets that is by its terms expressly or implicitly or by law nonassignable without the consent of any other party or parties, unless such consent or approval shall have been given, or as to seek such consents prior which all the remedies for the enforcement thereof available to the Closing. Seller shall promptly pay would not by law pass to Buyer (or, as applicable, another member an incident of the Buyer Group as designated assignments provided for by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
this Agreement (c) a “Non-Assignable Contract”). To the extent that any such consents and waivers are not obtainedSeller Required Consent in respect of, or until a novation of, a Non-Assignable Contract shall not have been obtained on or before the impediments to such assignment are resolvedClosing Date, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense continue to use its Commercially Reasonable efforts to obtain any such Seller Required Consent or novation after the Closing Date until such time as it shall have been obtained, and liability, on behalf Seller shall cooperate with Buyer in any Commercially Reasonable arrangement to provide that Buyer shall receive the interest of Seller in the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group benefits under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed thatsuch Non-Assignable Contract, notwithstanding anything including performance, to the contrary in the foregoingextent permitted by applicable Law, by Seller as agent if Commercially Reasonable; provided that, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation shall provide to Buyer if any consent is not obtained or if Buyer is not able to obtain substantially all the benefits referred to aboveof each such Non-Assignable Contracts, and Buyer shall indemnify undertake to pay or satisfy the corresponding Liabilities under the terms of each such Non-Assignable Contract (or such lesser amount corresponding to the value of benefits actually provided to Buyer by Seller and its Affiliates with respect to such Non-Assignable Contract) to the extent that Buyer would have been responsible therefor if such consent or approval had been obtained. Nothing contained in this Section 2.4 or elsewhere in this Agreement shall be deemed a waiver by Buyer of its right to have received on the Closing Date an effective assignment of all of the Purchased Assets or of the covenant of Seller to obtain all of Seller Required Consents, nor shall this Section 2.4 or any third party claims arising other provision of this Agreement be deemed to constitute an agreement to exclude from Seller’s compliance with the obligations set forth hereinPurchased Assets any Contracts as to which a Seller Required Consent may be necessary.
Appears in 1 contract
Sources: Asset Purchase Agreement (Discovery Laboratories Inc /De/)
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any of the Contracts or Permits 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 is required Person thereto, would constitute a breach or other contravention thereof or in any way adversely affect the rights of Buyer thereunder. Seller will use reasonable best efforts to obtain the consent of the other parties to any such Contract or Permit for the assignment but thereof to Buyer. If such consent is not received obtained prior to the Closing, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), thereunder so that Buyer would not in fact receive all such rights, Seller and Buyer will cooperate to achieve a mutually agreeable arrangement under which Buyer would obtain the benefits and assume the obligations thereunder (orbut only to the extent such obligations would have constituted Assumed Liabilities if such assignment occurred on the Closing Date) from and after the Closing Date in accordance with this Agreement, including subcontracting, sublicensing or subleasing to Buyer, or under which Seller would enforce for the benefit of Buyer, with Buyer assuming Seller's obligations to the same extent as applicable, another member if it would have constituted an Assumed Liability and any and all rights of Seller against a third Person thereto. Seller will pay promptly to Buyer when received all monies received by Seller after the Closing Date under any of the Contracts or any claim or right or any benefit arising thereunder to the extent that Buyer Group as directed by Buyer) is substituted for would be entitled thereto pursuant hereto. In addition, without limiting the Seller Group under such Transferred Contract or Transferred Permitforegoing, as applicable, and Buyer agrees that to the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of extent any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third service agreements listed on Part A of Schedule 3.6(a) that Seller is a party thereto would constitute a breach thereof or would be ineffective to with respect to Tetra-Chlor, Inc., Liquid Carbonic Industries Corporation, Bio-Lab, Inc. or Fertilizer Acquisition Company III are not assigned to Buyer on the Closing Date as a result of the failure to obtain any required third party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contractconsent, Buyer (orshall assume Seller's obligations thereunder to the same extent as if it would have constituted an Assumed Liability to provide such services on behalf of Seller as Seller's subcontractor, as applicable, another member and Seller shall enforce its rights under such service agreements for the benefit of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 2.7 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims arising from Seller’s compliance with the obligations Closing condition set forth herein.in Section 6.1(c). 2.8
Appears in 1 contract
Sources: Asset Purchase Agreement (Olin Corp)
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to Closing, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement nor the consummation of the transactions contemplated hereby shall be construed as an attempt or agreement to sell, transfer, assign convey or deliver any asset, property or right to Buyer (provided, that this Section 2.7(a) shall not affect whether any such asset, property or right shall be deemed to (xbe a Purchased Asset for any other purpose under this Agreement) require Seller or for Buyer and its respective successors and assigns to seek a novation assume any Assumed Liability which by its terms or by Law is not transferable or nonassignable, as applicable without the consent for assignment or waiver of a Transferred Contract Third Party or Transferred Permit where is cancelable by a Third Party in the event of such Transferred Contract a transfer or Transferred Permit does not require consentassignment without the consent or waiver of such Third Party, in each case unless and until such consent or waiver shall have been obtained (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to such Transferred Contract or Transferred Permit (an “Unassignable Contract”collectively, "Nonassignable Assets").
(b) With respect Seller shall use its reasonable commercial efforts to obtain, or to cause to be obtained, any Unassignable Contractconsent or waiver that is required for Seller to sell, transfer, assign, convey and deliver the Purchased Assets to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunder. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement Agreement, and for Buyer to seek assume the Assumed Liabilities pursuant to this Agreement. To the extent permitted by applicable Law, in the event any such consents consent or waiver cannot be obtained prior to Closing, (i) the Nonassignable Assets subject thereto and affected thereby shall be held, as of and from the Closing. , by Seller or the applicable Affiliate of Seller in trust for the benefit of Buyer, and all benefits and obligations existing thereunder shall be for Buyer's account, (ii) Buyer shall pay, perform or otherwise discharge (in accordance with the respective terms and subject to the respective conditions thereof, and in the name of Seller or applicable Affiliate of Seller) all of the covenants and obligations of Seller incurred after the Closing with respect to such Nonassignable Asset, and (iii) Seller shall take or cause to be taken at Buyer's expense such actions in its name or otherwise as Buyer may reasonably request so as to provide Buyer with the benefits of such Nonassignable Assets and to effect the collection of money or other consideration that becomes due and payable under such Nonassignable Assets, and promptly pay over to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies money or other consideration received by the Seller Group under any Transferred Contract net it in respect of any costs of collection relating theretosuch Nonassignable Assets.
(c) To the extent that any such consents Unless and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates approval with respect to any third party claims arising from Seller’s compliance with the obligations set forth hereinNonassignable Asset is obtained, such Nonassignable Asset shall be deemed not to be assigned or transferred pursuant to this Agreement and any associated liability shall not constitute an Assumed Liability for any purpose under this Agreement, but instead shall be governed by this Section 2.7 for such time that it is a Nonassignable Asset.
Appears in 1 contract
Sources: Asset Purchase Agreement (Lattice Semiconductor Corp)
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where Notwithstanding anything in this Agreement to the contrary, this Agreement will not constitute an agreement to assign any of the Assumed Contracts or any claim or right or any benefit arising thereunder or resulting therefrom if the assignment thereof is adjudicated by a court of competent jurisdiction to be a breach or contravention thereof or if such assignment is adjudicated by a court of competent jurisdiction to be ineffective or requiring consent of a third party is required for to any such Assumed Contract (a “Required Consenting Party”) (each, an “Assignment Rejection”). In the event of an Assignment Rejection or in the event that a controversy arises between Buyer or a Seller and a party to an Assumed Contract claiming that the assignment but of such Assumed Contract was ineffective, or requires the consent is not received prior to Closingof such party (such party an “Objecting Party”), then each Seller shall use their commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of any Required Consenting Party or any Objecting Party for the assignment to Buyer of any such Assumed Contract. If a subsequent consent to the assignment of such third party to Assumed Contract could not be obtained from a Required Consenting Party, thereby resulting in Buyer not in fact receiving all of the rights and benefits of such Transferred Contract or Transferred PermitAssumed Contract, as applicableeach Seller shall, to novate from and after the Seller Group’s obligations and rights to consummation of the Buyer Group (as directed by Buyer), so that Buyer (Closing or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require Seller to seek a novation or consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party Optional Pro Elite Contract, from and after the Election Date, provide Buyer with all the rights and the benefits under such Assumed Contract so affected consistent with the terms of such Assumed Contract, as if such Assumed Contract had been effectively assigned to such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With Buyer at Closing or, with respect to any Unassignable Optional Pro Elite Contract, on the Election Date, and Buyer agrees to perform at its sole expense all of the obligations of the applicable Seller (excluding any Unassumed Liabilities) arising after Closing or, as applicablewith respect to any Optional Pro Elite Contract, another member of on or after the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunderElection Date. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior to the Closing. Each Seller shall pay promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by a Seller, from and after the Seller Group consummation of the Closing, under any Transferred Contract net of the Assumed Contracts or any costs of collection relating thereto.
(c) To claim or right or any benefit arising thereunder to the fullest extent that any such consents and waivers Buyer would be entitled thereto pursuant hereto as if all assignments are not obtainedeffective as of the Closing. In addition, or until the impediments to such assignment are resolved, each Seller shall use commercially reasonable efforts direct in writing (which shall not include the payment of any consent fees) to (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable form and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated content previously approved by Buyer) each paying party to any Assumed Contract that has not been effectively assigned to Buyer to pay all amounts payable under such Contract directly to Buyer. Each Seller shall also supply to Buyer any and (iii) enforce, at the request all services of and for the account of Buyer, any rights of the Seller Group arising from any such Transferred party to an Assumed Contract or Transferred Permit against any third Person (including any Governmental Authority) including the right to elect to terminate in accordance consistent with the terms thereof. of such Assumed Contract to the fullest extent that Buyer (would be entitled thereto pursuant hereto as if all assignments are effective as of the Closing or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit of any third Person (including any Governmental Authority) the obligations of the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent is not obtained or if Buyer is not able to obtain the benefits referred to above, and Buyer shall indemnify Seller and its Affiliates with respect to any third party claims Optional Pro Elite Contract, from and after the Election Date. Each Seller hereby agrees that it shall not use any of the Assumed Contracts for its benefit. From and after the consummation of the Closing, if and when any such required consents from a Required Consenting Party shall be obtained, the Sellers shall promptly assign their rights thereunder to Buyer without payment of consideration and Buyer shall, without payment of any consideration therefor, assume from and after the date of such assignment the obligations thereunder arising exclusively from, and accruing exclusively with respect to, the period after such assignment and assumption (but only to the extent such obligations would constitute Assumed Liabilities). Buyer shall make no claim against Seller solely arising from Seller’s compliance the Sellers’ inability to assign an Assumed Contract with the obligations set forth hereina ProElite Fighter who is a Required Consenting Party in connection with an Assignment Rejection.
Appears in 1 contract
Consent of Third Parties. (a) For each Transferred Contract and Transferred Permit where consent of a third party is required for assignment but such consent is not received prior to Closing, Seller shall use commercially reasonable efforts (which shall not include the payment of any consent fees) to obtain the consent and approval of such third party to such Transferred Contract or Transferred Permit, as applicable, to novate the Seller Group’s obligations and rights to the Buyer Group (as directed by Buyer), so that Buyer (or, as applicable, another member of the Buyer Group as directed by Buyer) is substituted for the Seller Group under such Transferred Contract or Transferred Permit, as applicable, and the Seller Group is relieved of all further obligations and rights. Nothing in this Agreement shall be deemed to (x) require construed as an attempt for Seller to seek a novation assign to Purchaser, or for Purchaser to assume from Seller, any Assumed Contract that is not capable of being validly assigned, conveyed and transferred without the consent for assignment of a Transferred Contract or Transferred Permit where such Transferred Contract or Transferred Permit does not require consent, or (y) constitute an assignment or novation of any Transferred Contract or Transferred Permit if the attempted assignment or novation thereof without consent of the third party thereto would constitute a breach thereof or would be ineffective with respect to any party to unless such Transferred Contract or Transferred Permit (an “Unassignable Contract”).
(b) With respect to any Unassignable Contract, Buyer (or, as applicable, another member of consent shall have been obtained and remains in full force and effect at the Buyer Group as designated by Buyer) shall be deemed such member of the Seller Group’s agent for purpose of completing, fulfilling and discharging all of such member of the Seller Group’s liabilities thereunderClosing. The provisions of this Section 2.4 shall in no way limit the obligation of Seller pursuant to this Agreement to seek such consents prior Subsequent to the Closing. Seller shall promptly pay to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) when received all monies received by the Seller Group under any Transferred Contract net of any costs of collection relating thereto.
(c) To the extent that any such consents and waivers are not obtained, or until the impediments to such assignment are resolved, Seller shall use commercially its reasonable best efforts (to assist Purchaser in obtaining such consents, and shall assign each Assumed Contract to Purchaser upon receipt of the relevant consents for that contract. Until such time as such consents may be obtained, the parties agree that to the extent practicable they will engage in mutually agreeable arrangements, including subcontracting, sublicensing or subleasing, by which shall not include Purchaser will perform Seller's obligations under the payment relevant Assumed Contract and by which Seller will provide the benefits of any consent fees) such contract to Purchaser, including (i) provide to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer), at the request of Buyer, the benefits of any such Transferred Contract or Transferred Permit to the extent related to the Business, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) and (iii) enforce, at the request enforcement of and for the account of BuyerPurchaser, at Purchaser's expense and direction, any and all rights and remedies of Seller against the Seller Group arising from any such Transferred Contract or Transferred Permit against any third Person other party thereto, and (including any Governmental Authorityii) including the right diligent collection and payment to elect to terminate in accordance with the terms thereof. Buyer (or, as applicable, another member of the Buyer Group as designated by Buyer) shall perform, at its sole expense and liability, on behalf of the Seller Group and for the benefit Purchaser of any amounts received after the Closing Date by Seller under the relevant contract, in each case with payment to Purchaser to be made within 5 days of receipt of such amounts; provided, however, that if Purchaser shall so request, Seller shall instruct third Person (including any Governmental Authorityparties to such contract to pay amounts due thereunder directly to Purchaser and/or to accept invoices thereunder directly from Seller. For the avoidance of doubt, Seller is retaining certain rights to payment under Sections 2.1(b)(i) and 2.1(b)(ii) of this Agreement, and the obligations of foregoing provisions shall not apply to such amounts. The relationship, if any, between the Seller Group under each Transferred Contract and Transferred Permit or in connection therewith.
(d) It is understood and agreed that, notwithstanding anything to the contrary in the foregoing, so long as Seller uses its commercially reasonable efforts to cooperate with Buyer as contemplated Parties established by this Section 2.4, Seller will not have any liability or obligation to Buyer if any consent 5.8 is not obtained or if Buyer is not able to obtain the benefits referred to abovethat of independent contractors, and Buyer nothing in this Section 5.8 shall indemnify be construed to create a relationship of agency or partnership between the parties or to create any obligation to, or provide any benefit for, any third party. Seller and its Affiliates Purchaser shall similarly cooperate in subcontracting, sublicensing or subleasing arrangements with respect to any third party claims arising from Contract that is shared between the Business and Seller’s compliance with 's remaining business until such time as such Contract shall be separated into separate contracts for the obligations set forth hereinBusiness and Seller's remaining business.
Appears in 1 contract