Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.08, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE III, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration on account thereof. Following the Closing, Seller and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver in order for Seller to effect an assignment of the Assigned Contract. Once such consent, authorization, approval or waiver is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract to which such consent, authorization, approval or waiver relates for no additional consideration, which shall be considered the Closing Date for such Assigned Contract. (b) To the extent that any Assigned Contract cannot be transferred to Buyer at or following the Closing in accordance with this Agreement, Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and operational equivalent of the transfer of such Assigned Contract to Buyer as of the Closing and the performance by Buyer of its obligations with respect thereto.
Appears in 1 contract
Sources: Asset Purchase and Servicing Rights Agreement (Eagle Financial Services Inc)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE IIIArticle VII, if Buyer, at its sole option, waives the condition in Section 7.01(c), the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Purchase Price on account thereof. Following the Closing, Seller and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in order writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer shall be solely responsible for such liabilities and obligations from and after the Effective Time; provided, however, that neither Seller nor Buyer shall be required to effect an assignment pay any consideration therefor, unless the agreement being assigned requires payment of the Assigned Contracta de minimis review fee or similar fee, in which case, Seller shall be responsible for such payment. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Purchased Asset to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration. Applicable sales, which transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be considered the Closing Date for such Assigned Contractpaid by Seller in accordance with Section 6.14.
(b) To the extent that any material asset of Seller utilized in connection with the Business on a non-exclusive basis, including a Contract that is not an Assigned Contract (a "Shared Contract"), or any Purchased Asset and/or Assumed Liability cannot be transferred to Buyer at or following the Closing in accordance with pursuant to this AgreementSection 2.07, Buyer and Seller shall provide, pursuant to the Transition Services Agreement or Section 6.17, or use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide provide, to the parties the economic and and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Assigned Shared Contract or Purchased Asset and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer of its obligations with respect thereto; provided that Buyer acknowledges that certain human resources, travel, corporate development, commercial banking, legal, accounting, finance, vendor management, insurance and tax-related functions provided to the Business by the Seller will be taken over by Buyer at the Closing. Buyer shall, as agent or subcontractor for Seller pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Effective Time. To the extent permitted under applicable Law, Seller shall, at Buyer's expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Shared Contract or Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Shared Contract or Purchased Asset in connection with the arrangements under this Section 2.07. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07. Following the Closing, Seller and Buyer shall use commercially reasonable efforts, and shall cooperate with each other, to obtain the agreement of the counterparties to any Shared Contracts to enter into new, separate Shared Contracts relating to the services of the respective businesses of Buyer and Seller.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Customers Bancorp, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.08, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE IIIArticle VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Purchase Price on account thereof. Following the Closing, Seller and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in order writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to effect an assignment of the Assigned Contractpay any consideration therefor. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Purchased Asset to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration. Applicable sales, which transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be considered the Closing Date for such Assigned Contractpaid in accordance with Section 6.11.
(b) To the extent that any Assigned Contract Purchased Asset and/or Assumed Liability cannot be transferred to Buyer at or following the Closing in accordance with pursuant to this AgreementSection 2.08, Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Assigned Contract Purchased Asset and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.08. Seller shall be permitted to set off against such amounts all direct third-party costs associated with the retention and maintenance of such Purchased Assets to the extent not paid by Buyer. Notwithstanding anything herein to the contrary, the provisions of this Section 2.08 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.06.
Appears in 1 contract
Sources: Asset Purchase Agreement (Higher One Holdings, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.08, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE IIIArticle VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Purchase Price on account thereof. Following the Closing, Seller Sellers and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in order writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer shall be solely responsible for Seller such liabilities and obligations from and after the Closing Date; provided, however, that neither Sellers nor Buyer shall be required to effect an assignment of the Assigned Contractpay any consideration therefor. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, Seller Sellers shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Purchased Asset to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration. Applicable sales, which transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be considered the Closing Date for such Assigned Contractpaid by Buyer in accordance with Section 6.12.
(b) To the extent that any Assigned Contract Purchased Asset or Assumed Liability cannot be transferred to Buyer at or following the Closing in accordance with pursuant to this AgreementSection 2.08, Buyer and Seller Sellers shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Assigned Contract Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Sellers pay, perform and discharge fully the liabilities and obligations of Sellers thereunder from and after the Closing Date. To the extent permitted under applicable Law, Sellers shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Sellers to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.08. Sellers shall be permitted to set off against such amounts all reasonable direct costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.08 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Sources: Asset Purchase Agreement (Esports Entertainment Group, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.09, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE IIIArticle VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Purchase Price on account thereof. Following the Closing, the Seller Parties and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in order writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer shall be solely responsible for Seller to effect an assignment of such liabilities and obligations from and after the Closing Date and solely benefit from the Assigned ContractContracts from and after the Closing Date; provided, however, that neither the Seller Parties nor Buyer shall be required to pay any consideration therefor. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, the Seller Parties shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Purchased Asset to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration. Applicable sales, which transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be considered paid by the Closing Date for such Assigned Contractparties in accordance with Section 6.08.
(b) To the extent that any Assigned Contract Purchased Asset and/or Assumed Liability cannot be transferred to Buyer at or following the Closing in accordance with pursuant to this AgreementSection 2.09, Buyer and the Seller Parties shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Assigned Contract Purchased Asset and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer of its obligations with respect thereto. To the extent permitted under applicable Law, Buyer shall, as agent or subcontractor for the Seller Parties pay, perform and discharge fully the liabilities and obligations of the Seller Parties thereunder from and after the Closing Date. To the extent permitted under applicable Law, the Seller Parties shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by the Seller Parties to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.09. Each party shall be permitted, as applicable, to set off against such amounts all direct costs associated with the retention and maintenance of such Purchased Assets and all direct costs associated with the payment, performance and discharge of the liabilities and obligations.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, delivery thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE III, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Purchase Price on account thereof. Following the Closing, Seller and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in order writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to effect an assignment of the Assigned Contractpay any consideration therefor. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Purchased Asset to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration. Applicable sales, which transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be considered the Closing Date for such Assigned Contractpaid by Buyer in accordance with Section 6.01.
(b) To the extent that any Assigned Contract Purchased Asset and/or Assumed Liability cannot be transferred to Buyer at or following the Closing in accordance with pursuant to this AgreementSection 2.07, Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Assigned Contract Purchased Asset and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller, pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct costs associated with the retention and maintenance of such Purchased Assets.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE IIIVII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Purchase Price on account thereof. Following the Closing, Seller and Seller, Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall reasonably cooperate with each other, to obtain any such required consent, authorization, approval or waiver waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in order writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to effect an assignment of the Assigned Contractpay any consideration therefor. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, Seller shall shall, upon request of Buyer, sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Purchased Asset to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration. Applicable sales, which transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be considered the Closing Date for such Assigned Contractpaid by Buyer in accordance with Section 6.12.
(b) To the extent that any Assigned Contract Purchased Asset or Assumed Liability cannot be transferred to Buyer at or following the Closing in accordance with pursuant to this AgreementSection 2.07, Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Assigned Contract Purchased Asset or Assumed Liability to Buyer as of the Closing and the performance by Buyer of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller to pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.07. Seller shall be permitted to set off against such amounts all direct reasonably and properly incurred costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 6.07.
Appears in 1 contract
Sources: Asset Purchase Agreement (Recruiter.com Group, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE IIIVII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Purchase Price on account thereof. Following the Closing, Seller and Buyer Seller, at its expense, shall continue to use commercially its reasonable efforts, and Seller and Buyer shall cooperate with each other, best efforts to obtain any such required consent, authorization, approval or waiver in order for as promptly as possible; provided, however, that neither Seller nor Buyer shall be required to effect an assignment of the Assigned Contractpay any consideration therefor. Once If any such consent, authorization, approval or waiver is obtainedshall not be obtained or if any attempted assignment would be ineffective or would impair Buyer’s rights under the Purchased Asset in question so that Buyer would not in effect acquire the benefit of all such rights, Seller Seller, to the maximum extent permitted by Law and the Purchased Asset, shall sellact after the Closing as Buyer’s agent in order to obtain for it the benefits thereunder and shall cooperate, assignto the maximum extent permitted by Law and the Purchased Asset, transferwith Buyer in any other reasonable arrangement designed to provide such benefits to Buyer; provided, convey and deliver that Buyer shall undertake to pay or satisfy the corresponding Liabilities for the enjoyment of such benefit to the extent Buyer the relevant Assigned Contract to which would have been responsible therefor hereunder if such consent, authorization, approval or waiver relates for no additional consideration, which shall be considered the Closing Date for such Assigned Contracthad been obtained.
(b) To the extent that any Assigned Contract cannot be transferred to Buyer at or following the Closing in accordance with this Agreement, Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and operational equivalent of the transfer of such Assigned Contract to Buyer as of the Closing and the performance by Buyer of its obligations with respect thereto.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset or Assigned Contract would require the consent, authorization, approval or waiver of a Person person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority)Agreement, and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not still constitute a sale, assignment, transfer, conveyance or delivery, of all other assets and assigned contracts. Notwithstanding anything to the contrary in this Agreement to the extent the sale, assignment, transfer, conveyance or an delivery, or attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to Buyer of any Purchased Asset or Assigned Contract would result in a violation of applicable law or require the satisfaction or waiver consent of the conditions contained in ARTICLE III, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration on account thereof. Following the Closing, Seller a governmental authority and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver in order for Seller to effect an assignment of the Assigned Contract. Once such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall constitute a sale, assignment, transfer, conveyance or delivery, of all other assets and assigned contracts. In such event the sale, assignment, transfer, conveyance or delivery shall be automatically effectual on such consent. Parties shall use commercially reasonable best efforts, and cooperate with each other, to obtain the consent relating to each Assigned Contract as quickly as practicable; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Once consent for the assignment and assumption is obtained, Seller shall sell, promptly assign, transfer, convey and deliver such to Buyer, and Buyer shall assume the obligations assigned to Buyer from and after the relevant Assigned Contract date of assignment to which such consent, authorization, approval or waiver relates for Buyer (all at no additional consideration, which shall be considered the Closing Date for such Assigned Contract.cost to Buyer); and
(b) To Without limiting the extent that generality of the foregoing, if any Assigned Contract canis not able to be transferred assigned, or if Seller is not able to obtain any required consent to the assignment of an Assigned Contract at Closing, Buyer at or following shall (i) assume and perform the Closing in accordance with this Agreementobligations of Seller under the Assigned Contracts, and (ii) receive all of the economic and other benefits under such Assigned Contracts. Buyer and Seller shall take such actions as may be required, including executing subcontracts, subleases, or other agreements, to carry out the intent of this Section 2.7; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Buyer shall use commercially all reasonable efforts to enter into invoice third parties for services rendered without the assistance of Seller. If necessary, Buyer shall perform under such arrangements contracts as a subcontractor to Seller using the same terms as between the Seller and the applicable third party. Buyer shall indemnify and hold Seller harmless for any and all claims and causes of action arising from the performance of Buyer’s work under such contracts. Seller shall create an escrow account (with Buyer’s lender) for the deposit of any proceeds of such as subleasing, sublicensing or subcontracting) to provide to work for the sole benefit of Buyer. Buyer shall pay for the costs of such escrow. The intent of the parties is to allow Buyer to perform on the economic and operational equivalent Assigned Contracts during the process of the transfer of such Assigned Contract to Buyer as of the Closing obtaining assignment from third parties and the performance by Buyer of its obligations parties agree to fully cooperate with respect theretoeach other in this process.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.10, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to the Buyer of any Assigned Contract Acquired Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement Party or an Affiliate of a party to this Agreement Party (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE IIISection 6, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration on account thereofPurchase Price. Following the Closing, the Seller and Buyer the Stockholders shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, Commercially Reasonable Efforts to obtain any such required consent, authorization, approval or waiver waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in order writing the unconditional release of all parties to such arrangements, so that, in any case, the Buyer shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither the Seller nor the Buyer shall be required to effect an assignment of the Assigned Contractpay any consideration therefor. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, the Seller shall sell, assign, transfer, convey and deliver to the Buyer the relevant Assigned Contract Acquired Asset to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration. Applicable sales, which transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be considered paid by the Closing Date for such Assigned ContractBuyer and the Seller in accordance with Section 11.14.
(b) To the extent that any Assigned Contract Acquired Asset and/or Assumed Liability cannot be transferred to the Buyer at or following the Closing in accordance with pursuant to this AgreementSection 2.10, the Buyer and the Seller shall use commercially reasonable efforts Commercially Reasonable Efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties Parties the economic and and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Assigned Contract Acquired Asset and/or Assumed Liability to the Buyer as of the Closing and the performance by the Buyer of its obligations with respect thereto. The Buyer shall, as agent or subcontractor for the Seller, pay, perform and discharge fully the liabilities and obligations of the Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, the Seller shall hold in trust for and pay to the Buyer promptly upon receipt thereof, such Acquired Asset and all income, proceeds and other monies received by the Seller to the extent related to such Acquired Asset in connection with the arrangements under this Section 2.10. The Seller shall be permitted to set off against such amounts all direct costs associated with the retention and maintenance of such Acquired Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement (Edgewater Technology Inc/De/)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.5, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver Consent of a Person who is not a party to this Agreement Party or an Affiliate of a party to this Agreement Party (including any Governmental Authority), and such consent, authorization, approval or waiver shall Consent has not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE IIIVII (including the conditions that Seller deliver to Buyer each Assignment and Assumption of Lease, each Landlord Estoppel and each notice required to be given and Consent required to be obtained by Seller in connection with the execution and delivery of the Transaction Documents and the consummation of the Transactions), the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration on account thereofsuch Consent not having been obtained. Following the Closing, Seller and Buyer the Parties shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consentConsent, authorizationor to obtain in writing the unconditional release of all parties to such arrangements, approval so that, in any case, Buyer shall be solely responsible for the Assumed Liabilities after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor other than as expressly provided for under any applicable Contract. After the Closing and until such Consent is obtained, or waiver if any attempted sale, assignment, transfer, conveyance or delivery would be ineffective or would impair Buyer’s rights under the relevant Purchased Asset such that Buyer would not in effect acquire the benefit of all such rights, Seller, to the extent permitted by applicable Law and such Purchased Asset, shall act as Buyer’s agent in order to obtain for Buyer the benefits under such Purchased Asset and cooperate with Buyer in any other reasonable arrangement designed to provide such benefits to Buyer and Buyer, to the extent permitted by applicable Law and such Purchased Asset, shall pay, perform and discharge the Liabilities incurred by Seller to effect an assignment of the Assigned Contractin obtaining such benefits. Once such consent, authorization, approval or waiver Consent is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Purchased Asset to which such consent, authorization, approval or waiver Consent relates for no additional consideration. Applicable Transfer Taxes in connection with such sale, which assignment, transfer, conveyance or delivery shall be considered the Closing Date for such Assigned Contract.
(b) To the extent that any Assigned Contract cannot be transferred to equally apportioned between Seller and Buyer at or following the Closing in accordance with this Agreement, Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and operational equivalent of the transfer of such Assigned Contract to Buyer as of the Closing and the performance by Buyer of its obligations with respect theretoSection 3.4.
Appears in 1 contract
Non-Assignable Assets. (a) 2.8.1 Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.8, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer Purchaser of any Assigned Contract Company Asset would result in a violation of applicable law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental AuthorityEntity), and such consent, authorization, approval or waiver shall not have been obtained prior to the ClosingClosing after the commercially reasonable effort by Company to obtain such consent, authorization, approval or waiver, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE III, that the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Initial Purchase Price or other consideration on account thereof. Following the Closing, Seller Company and Buyer Purchaser shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all contracts or other liabilities that constitute Assumed Obligations or to obtain in order writing the unconditional release of all parties to such arrangements, so that, in any case, Purchaser shall be solely responsible for Seller such liabilities and obligations from and after the Closing Date; provided, however, that neither Company nor Shareholder nor Purchaser shall be required to effect an assignment of the Assigned Contractpay any consideration therefor. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, Seller Company shall sell, assign, transfer, convey and deliver to Buyer Purchaser the relevant Assigned Contract Company Asset to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration. Applicable sales, which transfer, and other similar Taxes in connection with such sale, assignment, transfer, conveyance, or license shall be considered the Closing Date for such Assigned Contractpaid in accordance with Section 6.9.
(b) 2.8.2 To the extent that any Assigned Contract Company Asset and/or Assumed Obligation cannot be transferred to Buyer at or Purchaser following the Closing in accordance with pursuant to this AgreementSection 2.8, Buyer Purchaser and Seller Company shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and and, to the extent permitted under applicable law, operational equivalent of the transfer of such Assigned Contract Company Asset and/or Assumed Obligation to Buyer Purchaser as of the Closing and the performance by Buyer Purchaser of its obligations with respect thereto. Purchaser shall, as agent or subcontractor for Company pay, perform and discharge fully the liabilities and obligations of Company thereunder from and after the Closing Date. To the extent permitted under applicable Law, Company shall, at Purchaser’s expense, hold in trust for and pay to Purchaser promptly upon receipt thereof, such Company Asset and all income, proceeds and other monies received by Company to the extent related to such Company Asset in connection with the arrangements under this Section 2.8. Company shall be permitted to set off against such amounts all direct costs associated with the retention and maintenance of such Company Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement (Interpace Biosciences, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.08, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract that would require the a material consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party Party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the ClosingClosing despite Seller’s good faith and diligent effort to seek consents to such Contracts prior to Closing (“Non-Assignable Contract”), this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE IIIArticle VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Purchase Price on account thereof. Following the Closing, Seller and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver in order for Seller waiver, or any release, substitution or amendment required to effect an assignment novate all rights and obligations under any and all of the Assigned ContractContracts or to obtain in writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer shall solely have the benefit of and be responsible for such rights and obligations from and after the Closing Date; provided, however, that neither Party shall be required to pay any consideration therefor. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration. From and after the Closing, which Seller (on behalf of itself and its Affiliates) appoints Buyer as its attorney-in-fact to act in its name on its behalf, or in the name of the applicable Subsidiary, and on such Subsidiary’s behalf, with regard to each Non-Assignable Contract. Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be considered the Closing Date for such Assigned Contractpaid by Buyer in accordance with Section 6.09.
(b) Subject to the last sentence of this Section 2.08(b), to the extent that any Contract set forth in Section 2.08(b) of the Disclosure Schedules is a Non-Assignable Contract, from time to time, at Buyer’s request, Seller shall for a period commencing on the Closing Date and ending on the earlier of: (i) five (5) years following the Closing Date; (ii) the date on which such Non-Assignable Contract terminates by its terms or a new replacement Contract is obtained; and (iii) the date on which Buyer enters into an agreement with a Third Party to provide substantially the same services to Buyer as are provided to Seller under the Non-Assignable Contract (such earlier period, the “Intermediary Period”), act as an intermediary to provide Buyer the benefit of the terms of such Non-Assignable Contract (including, without limitation, purchasing on behalf of Buyer any raw materials or finished products to be supplied under such Non-Assignable Contract) with all costs and expenses incurred by Seller thereunder on behalf of Buyer being borne fully by Buyer. For clarity, Seller shall not charge Buyer for performing Seller’s obligation under this Section 2.08(b). To the extent that a Third Party consent is not obtained to any Assigned Non-Assignable Contract cannot prior to the Closing, then, during the Intermediary Period, Buyer shall use commercially reasonable efforts to negotiate in good faith directly with the Third Party to obtain a Contract in replacement of the Non-Assignable Contract.
(c) If the Contracts set forth in Section 2.08(c) of the Disclosure Schedules are assignable in part, or can otherwise be transferred bifurcated, in each case, without consent of the Third Party involved in such Contract, Seller shall assign to Buyer at in part, or following bifurcate, the Contracts as they relate to the Product Portfolio. If the Contracts set forth in Section 2.08(c) of the Disclosure Schedules are not assignable without consent of the Third Party involved in such Contracts, Buyer and Seller shall cooperate in good faith to work with the applicable Third Party to bifurcate such non-assignable Contracts to the extent such Contracts relate to the Product Portfolio such that Buyer obtains its own Contract covering the subject matter contained therein as it relates specifically to the Product Portfolio. In the event that Buyer and Seller are unable to bifurcate the non-assignable Contracts set forth in Section 2.08(c) of the Disclosure Schedules on or before the Closing, then, during the Intermediary Period, Seller shall act as an intermediary to provide Buyer the benefit of the terms of such non-assignable Contract (including, without limitation, purchasing on behalf of Buyer any raw materials or finished products to be supplied under such non-assignable Contract) with all costs and expenses incurred by Seller thereunder on behalf of Buyer being borne fully by Buyer. For clarity, Seller shall not charge Buyer for performing Seller’s obligation under this Section 2.08(c). During the Intermediary Period, Buyer and Seller shall continue to cooperate to seek bifurcation of the non-assignable Contracts with the Third Party.
(d) If any Contract with any group purchasing organization, wholesaler, distributor, or specialty distributor is a Non-Assignable Contract (“Non-Assigned Wholesaler/Distributor Contract”), then Seller agrees that, to the extent permitted by Law and during the period that begins on the Closing in accordance Date and ends on the earliest of: (i) ninety (90) days after the Closing Date; (ii) the date on which all Non-Assigned Wholesaler/Distributor Contracts have been assigned to Buyer; or (iii) the date on which Buyer has executed replacement Contracts with this Agreementall group purchasing organization, wholesaler, distributor, or specialty distributor parties to all Non-Assigned Wholesaler/Distributor Contracts (the “Distribution Support Period”), Seller shall use its commercially reasonable efforts to (A) continue to administer and perform such Non-Assigned Wholesaler/Distributor Contract, and (B) permit the group purchasing organization, wholesaler, distributor, or specialty distributor party to such Non-Assigned Wholesaler/Distributor Contract to purchase Product from Seller and/or Buyer and resell such Product to eligible customers (the “Distribution Contract Support Services”).
(i) During the Distribution Support Period:
(A) All revenues received under any Non-Assigned Wholesaler/Distributor Contract shall belong to Buyer;
(B) Buyer and Seller shall use commercially reasonable efforts efforts, and shall cooperate with each other, to either (1) obtain any required consent, authorization, approval, or waiver, or any release, substitution, or amendment required to assign any Non-Assigned Wholesaler/Distributor Contract to Buyer, or (2) if such assignment is not possible, enable Buyer to enter into a replacement Contract with the applicable group purchasing organization, wholesaler, distributor, or specialty distributor;
(C) Buyer and Seller shall take all appropriate and necessary actions, and sign such arrangements documents and authorizations as are reasonably necessary, to accomplish the actions described in this Section 2.08(d); and
(such as subleasingD) All chargebacks, sublicensing or subcontracting) to provide fees, and other amounts payable by Seller to the parties applicable group purchasing organization, wholesaler, distributor, or specialty distributor under the economic and operational equivalent terms of the transfer of such any Non-Assigned Wholesaler/Distributor Contract to Buyer as of incurred in connection with sales made after the Closing are the financial responsibility of Buyer, and the performance Buyer shall reimburse Seller for any such amounts actually paid by Buyer of its obligations with respect theretoSeller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Spectrum Pharmaceuticals Inc)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset or Assigned Contract would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any leases or Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not still constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE III, the Closing all other assets and assigned contracts. Parties shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration on account thereof. Following the Closing, Seller and Buyer shall continue to use commercially reasonable best efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver in order for Seller the consent relating to effect an assignment of the each Assigned ContractContract as quickly as practicable. Once such consent, authorization, approval or waiver consent for the assignment and assumption is obtained, Seller shall sell, promptly assign, transfer, convey and deliver such to Buyer, and Buyer shall assume the obligations assigned to Buyer from and after the relevant Assigned Contract date of assignment to which such consent, authorization, approval or waiver relates for Buyer (all at no additional consideration, which shall be considered the Closing Date for such Assigned Contractcost to Buyer).
(b) To Without limiting the extent that generality of the foregoing, if any Assigned Contract canis not able to be transferred assigned or if Seller is not able to obtain any required consent to the assignment of an Assigned Contract at Closing, Buyer at or following shall (i) assume and perform the Closing in accordance with this Agreement, obligations of Seller under the Assigned Contracts and (ii) Buyer shall receive all of the economic and other benefits under such Assigned Contracts. Buyer and Seller shall take such actions as may be required, including executing subcontracts or other agreements, to carry out the intent of this Section 2.7. Buyer shall use commercially all reasonable efforts to enter into invoice third parties for services rendered without the assistant of Seller. If necessary, Buyer shall perform under such arrangements (contracts as a subcontractor to Seller using the same terms as the between the Seller and the applicable third party. Buyer shall indemnify and hold Seller harmless for any and all claims and causes of action arising from the performance of Buyer’s work under such as subleasing, sublicensing or subcontracting) to provide to contracts. Seller shall create an escrow account for the deposit of any proceeds of such work for the sole benefit of Buyer. Buyer shall pay for the costs of such escrow. The intent of the parties is to allow Buyer to perform on the economic and operational equivalent Assigned Contracts during the process of the transfer of such Assigned Contract to Buyer as of the Closing obtaining assignment from third parties and the performance by Buyer of its obligations parties agree to fully cooperate with respect theretoeach other in this process.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and but subject to the provisions of this Section 2.087.8(a) and Section 7.12, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset or Assumed Liability would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver Consent of a Person who is not a party to this Agreement Party or an Affiliate of a party to this Agreement Party (including any Governmental Authority), and such consent, authorization, approval or waiver Consent shall not have been obtained prior to the ClosingClosing Date (such Purchased Assets and Assumed Liabilities, the “Restricted Items”), this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE III, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration on account thereof. Following the ClosingClosing Date, the Seller Companies and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consentConsent or any release, authorizationsubstitution or amendment required with respect to each Restricted Item, approval including with respect to Non-Assignable Shared Contracts; provided, however, that this Section 7.8(a) shall not be deemed to require the Seller Companies or waiver in order for Seller Buyer to effect an assignment of the Assigned Contractpay any material consideration therefor or institute any Action. Once such consentConsent or any release, authorization, approval substitution or waiver amendment is obtained, the applicable Seller Company shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Restricted Item to which such consentConsent or any release, authorization, approval substitution or waiver amendment relates for no additional consideration, which shall be considered the Closing Date for such Assigned Contract.
(b) To the extent that any Assigned Contract Restricted Item cannot be transferred to or assumed by Buyer at or following the Closing in accordance with this AgreementDate pursuant to Section 7.8(a), Parent and Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting, or through the TSA) to provide under which (i) Buyer will obtain the economic rights and benefits and, to the parties the economic and extent permitted under applicable Law, operational equivalent of the transfer of such Assigned Contract Restricted Item to Buyer as of the Closing Date; and (ii) Buyer shall assume the performance by Buyer obligations, including the economic burden, equivalent to the transfer of its obligations such Restricted Item and shall, as agent or subcontractor for the applicable Seller Company, pay, perform and discharge fully the Liabilities of such Seller Company thereunder arising from and after the Closing Date, including completing the work or providing the goods and services contemplated thereunder, and bearing all Taxes with respect thereto.thereto or arising therefrom. Buyer shall promptly reimburse the reasonable out of pocket costs and expenses of such Seller Company and their Affiliates related to compliance with this Section 7.8
Appears in 1 contract
Sources: Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.081.9, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer Purchaser of any Assigned Contract Acquired Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE IIIArticle II, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Purchase Price on account thereof. Following the Closing, Seller and Buyer Purchaser shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assumed Contracts or other liabilities that constitute Assumed Liabilities or to obtain in order writing the unconditional release of all parties to such arrangements, so that, in any case, Purchaser shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Purchaser shall be required to effect an assignment of the Assigned Contractpay any consideration therefor. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer Purchaser the relevant Assigned Contract Acquired Asset to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration. Applicable sales, which transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be considered the Closing Date for such Assigned Contractpaid in accordance with Section 7.4.
(b) To the extent that any Assigned Contract Acquired Asset and/or Assumed Liability cannot be transferred to Buyer at or Purchaser following the Closing in accordance with pursuant to this AgreementSection 1.9, Buyer Purchaser and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Assigned Contract Acquired Asset and/or Assumed Liability to Buyer Purchaser as of the Closing and the performance by Buyer Purchaser of its obligations with respect thereto. Purchaser shall, as agent or subcontractor for Seller pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Purchaser's expense, hold in trust for and pay to Purchaser promptly upon receipt thereof, such Acquired Asset and all income, proceeds and other monies received by Seller to the extent related to such Acquired Asset in connection with the arrangements under this Section 1.9. Seller shall be permitted to set off against such amounts all direct costs associated with the retention and maintenance of such Acquired Assets.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.09, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract or Business Permit (i) would result in a violation of applicable Law or (ii) would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereofof such Assigned Contract or Business Permit (each, a “Non-assignable Right”); provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE IIIArticle VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Purchase Price on account thereof. Following the Closing, Seller and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain obtain, any such required consent, authorization, approval or waiver or (if required in order for to carry out the provisions of this Section 2.09) any release, substitution or amendment required to novate any Non-assignable Rights so that they can effectively be transferred to Buyer as promptly as reasonably practicable after the Closing upon the terms set forth in this Agreement (without regard to the provisions of this Section 2.09); provided, however, that neither Seller nor Buyer shall be required to effect an assignment of the Assigned Contractpay any consideration therefor. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Non-assignable Right to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration. Applicable Transfer Taxes in connection with such sale, which assignment, transfer, conveyance or license shall be considered borne by the Closing Date for such Assigned Contract.
(b) To the extent that any Assigned Contract cannot be transferred to Buyer at or following the Closing parties in accordance with this Agreement, Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and operational equivalent of the transfer of such Assigned Contract to Buyer as of the Closing and the performance by Buyer of its obligations with respect theretoSection 6.11.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE III, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration on account thereof. Following the Closing, Seller and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver waiver, so that, in order any case, Buyer shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to effect an assignment of the Assigned Contractpay any consideration therefor. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Purchased Asset to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration, which shall be considered the Closing Date for such Assigned Contract.
(b) . To the extent that any Assigned Contract Purchased Asset and/or Assumed Liability cannot be transferred to Buyer at or following the Closing in accordance with pursuant to this AgreementSection 2.07, Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Assigned Contract Purchased Asset and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer of its obligations with respect thereto.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.08, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE III, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Purchase Price on account thereof. Following the Closing, Seller and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, best efforts to obtain any such required consent, authorization, approval or waiver in order for Seller waiver; provided, however, that Buyer shall be not required to effect an assignment of the Assigned Contractpay any consideration therefor. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Purchased Asset to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration, which shall be considered the Closing Date for such Assigned Contract.
(b) To the extent that any Assigned Contract Purchased Asset cannot be transferred to Buyer at or following the Closing in accordance with pursuant to this AgreementSection 1.07, Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Assigned Contract Purchased Asset to Buyer as of the Closing. To the extent permitted under applicable Law, Seller shall hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 1.07.
(c) Notwithstanding anything to the contrary in this Section 1.07, the Parties hereby acknowledge and agree that as of the Closing Date, (i) Seller has prior to the Closing Date transferred physical possession to Buyer and Buyer is currently in physical possession of the Purchased Assets constituting the Equipment, Pharmaceuticals and Raw Materials, and (ii) Seller’s obligation under this Agreement to transfer possession of the Purchased Assets at Closing shall be limited to its obligation to convey title to such Purchased Assets by executing the Bill of Sale, the Assignment and Assumption Agreement, and the performance by Buyer of its obligations with respect theretoIntellectual Property Assignment Agreement (each as defined below).
Appears in 1 contract
Sources: Asset Purchase Agreement (Turnstone Biologics Corp.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.10, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement Party or an Affiliate of a party to this Agreement Party (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE III, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration on account thereof. Following the Closing, Seller Sellers and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver waiver, or any release, substitution or amendment required to novate all liabilities, obligations, rights and benefits under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or other assets that constitute Purchased Assets or to obtain in order writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer shall be solely responsible for Seller such liabilities and obligations after the Closing and shall have the benefit of all such Purchased Assets after the Closing; provided, however, that neither Sellers nor Buyer shall be required to effect an assignment of the Assigned Contractpay any consideration therefor. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, Seller Sellers shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Purchased Asset to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration. Applicable sales, which transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be considered the Closing Date for such Assigned Contractpaid in accordance with Section 6.9.
(b) To the extent that any Assigned Contract Purchased Asset and/or Assumed Liability cannot be transferred to Buyer at or following the Closing in accordance with pursuant to this AgreementSection 2.10, Buyer and Seller Sellers shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide the economic and, to the parties the economic and extent permitted under applicable Law, operational equivalent of the transfer of such Assigned Contract Purchased Asset and/or Assumed Liability to Buyer as of the Closing and the exercise by Buyer of its rights and the NYC#: 148660.21 performance by Buyer of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Sellers pay, perform and discharge fully the liabilities and obligations of Sellers thereunder from and after the Closing Date. To the extent permitted under applicable Law, Sellers shall, at Buyer’s expense, (i) hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Sellers to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.10 and (ii) if requested by Buyer, enforce all rights of Sellers against the other party to such Purchased Asset. Sellers shall be permitted to set off against such amounts all direct out-of-pocket costs associated with the retention and maintenance of such Purchased Assets.
(c) Nothing in this Section 2.10, including any arrangement for Buyer to be provided with any of the benefits of such Purchased Asset, shall constitute a waiver of Buyer’s right to insist on the conditions to Closing set forth in Section 3.2 being satisfied in their entirety or a waiver of Buyer’s right to seek indemnification pursuant to ARTICLE VIII.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Purchased Asset or Assigned Contract would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any leases or Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not still constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE III, the Closing all other assets and assigned contracts. Parties shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration on account thereof. Following the Closing, Seller and Buyer shall continue to use commercially reasonable best efforts, and Seller and Buyer shall cooperate with each other, to obtain the consent relating to each Assigned Contract as quickly as practicable; provided, however, that neither Seller nor Buyer shall be required to pay any such required consent, authorization, approval or waiver in order for Seller to effect an assignment of the Assigned Contractconsideration therefor. Once such consent, authorization, approval or waiver consent for the assignment and assumption is obtained, Seller shall sell, promptly assign, transfer, convey and deliver such to Buyer, and Buyer shall assume the obligations assigned to Buyer from and after the relevant Assigned Contract date of assignment to which such consent, authorization, approval or waiver relates for Buyer (all at no additional consideration, which shall be considered the Closing Date for such Assigned Contractcost to Buyer).
(b) To Without limiting the extent that generality of the foregoing, if any Assigned Contract canis not able to be transferred assigned or if Seller is not able to obtain any required consent to the assignment of an Assigned Contract at Closing, Buyer at or following shall (i) assume and perform the Closing in accordance with this Agreement, obligations of Seller under the Assigned Contracts and (ii) Buyer shall receive all of the economic and other benefits under such Assigned Contracts. Buyer and Seller shall take such actions as may be required, including executing subcontracts, subleases, or other agreements, to carry out the intent of this Section 2.7; provided, however, that neither Seller nor Buyer shall be required to pay any consideration therefor. Buyer shall use commercially all reasonable efforts to enter into invoice third parties for services rendered without the assistance of Seller. If necessary, Buyer shall perform under such arrangements (contracts as a subcontractor to Seller using the same terms as the between the Seller and the applicable third party. Buyer shall indemnify and hold Seller harmless for any and all claims and causes of action arising from the performance of Buyer’s work under such as subleasing, sublicensing or subcontracting) to provide to contracts. Seller shall create an escrow account for the deposit of any proceeds of such work for the sole benefit of Buyer. Buyer shall pay for the costs of such escrow. The intent of the parties is to allow Buyer to perform on the economic and operational equivalent Assigned Contracts during the process of the transfer of such Assigned Contract to Buyer as of the Closing obtaining assignment from third parties and the performance by Buyer of its obligations parties agree to fully cooperate with respect theretoeach other in this process.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.08, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver Consent of a Person who is not neither a party to this Agreement or nor an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver Consent shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE IIIArticle VII, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Purchase Price on account thereof. Following the Closing, Seller and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consentConsent or any release, authorizationsubstitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of all parties to such arrangements, approval or waiver so that, in order any case, Buyer shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to effect an assignment of the Assigned Contractpay any consideration therefor. Once such consentConsent, authorizationrelease, approval substitution or waiver amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Purchased Asset to which such consentConsent, authorizationrelease, approval substitution or waiver amendment relates for no additional consideration. Applicable sales, which transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be considered the Closing Date for such Assigned Contractpaid by Buyer in accordance with Section 6.11.
(b) To Until such Consents, releases, substitutions or amendments are obtained, or to the extent that any Assigned Contract Purchased Asset and/or Assumed Liability cannot be transferred to Buyer at or following the Closing in accordance with pursuant to this AgreementSection 2.08, Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide ), to the parties extent permitted by applicable Law, intended to both (i) provide Buyer with the economic and operational equivalent benefit of any such Purchased Assets and (ii) cause Buyer to perform and discharge fully the liabilities and obligations of Seller with respect to such Purchased Assets and Assumed Liabilities from and after the Closing Date. To the extent permitted under applicable Law, Seller shall hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.08. To the extent and for so long as Buyer obtains the benefit of any Purchased Asset pursuant to this Section 2.08(b), Buyer shall indemnify and hold Seller harmless from and against all Losses incurred by or asserted against Seller as a result of Seller’s direct or indirect ownership, management or operation of any such Purchased Asset. Seller shall be permitted to set off against such amounts all direct costs associated with the retention and maintenance of such Purchased Assets. Notwithstanding anything herein to the contrary, the provisions of this Section 2.08 shall not apply to any Consent required under any antitrust, competition or trade regulation Law, which Consent shall be governed by Section 6.07.
(c) From the Closing Date until the date on which a Purchased Asset that is not sold, assigned, transferred, conveyed and delivered to Buyer at Closing is transferred to Buyer, in each case, in accordance with this Section 2.08:
(i) Buyer shall promptly notify Seller in writing of any notice or other communication from any Governmental Authority relating to such Purchased Asset, including, without limitation, any notices of default, cure notices or negative performance ratings;
(ii) Buyer shall promptly provide Seller a copy of any notice or other communication referenced in clause (i) above;
(iii) each Party, promptly after the receipt of any notice of default, cure notice or negative performance rating relating to such Purchased Asset, shall (A) consult and cooperate with the other Party, in all reasonable respects, in connection with (1) any communication and/or negotiations with the relevant Governmental Authority regarding such notice of default, cure notice or negative performance rating and (2) the development and implementation of the transfer plan to remedy the actual or potential breach, default or performance issue relating to such notice of default, cure notice or negative performance rating, (B) make available to the other Party all records relating to such notice of default, cure notice or negative performance rating and (C) furnish, without expense, to the other Party, management employees of the such Party as may be reasonably necessary for any of the foregoing; and
(iv) with respect to the Government Contracts, Seller shall have the right to (A) review all books and records in Buyer’s possession relating to any audit conducted by a Government Authority that recommends a downward adjustment to the contract price, or disallowance of any cost incurred, of such Assigned Government Contract, (B) respond to any findings of a Governmental Authority during an audit that recommends a downward adjustment to the contract price, or disallowance of any cost incurred, of such Government Contract, (C) submit a claim to the contracting officer disputing any such downward adjustment to the contract price of such Government Contract, (D) file an appeal under such Government Contract’s disputes clause and under the Contract to Buyer as Disputes Act from any final decision of the Closing contracting officer for such Government Contract relating to a downward adjustment to the contract price thereof and (E) meet with Buyer’s management employees as may be reasonably necessary for any of the performance by Buyer of its obligations with respect theretoforegoing.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.8, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE III, that the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Purchase Price on account thereof. Following For a period of one year after the Closing, at Seller’s expense, Seller and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, Buyer to obtain any such required consent, authorization, approval or waiver waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any material Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in order writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer shall be solely responsible for Seller to effect an assignment all liabilities and obligations, and shall enjoy the benefit of all rights, arising thereunder, from and after the Closing Date. Notwithstanding the foregoing, Buyer agrees and acknowledges that of the Assigned Contract. Once such consent, authorization, approval or waiver is obtainedconsents listed on Schedule 4.3, Seller shall sellonly be obligated to obtain the Required Consents. Furthermore, assignas promptly as possible after the Closing, transferwith respect to the Material Contracts set forth on Schedule 2.8 (the “Master Leases”), convey Buyer and deliver Seller shall cooperate to Buyer take any actions reasonably necessary to effect the relevant Assigned Contract transfer of the leases of particular equipment under the Master Lease, while not transferring the Master Lease itself. If such transfers are not effected within six months of Closing, Seller shall have no further obligations with respect to which the leases of the particular equipment subject to the Master Leases and may terminate such consent, authorization, approval or waiver relates for no additional consideration, which shall be considered the Closing Date for such Assigned Contractleases in its discretion.
(b) To the extent that any Assigned Contract material Purchased Asset and/or Assumed Liability cannot be transferred to Buyer at or following the Closing in accordance with pursuant to this AgreementSection 2.8, Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Assigned Contract Purchased Asset and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Seller’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset in connection with the arrangements under this Section 2.8. Seller shall be permitted to set off against such amounts all direct costs associated with the retention and maintenance of such Purchased Assets.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.082.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would require the consent, authorization, approval or waiver result in a violation of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closingapplicable Law, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE III, that the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Purchase Price on account thereof. Following the Closing, Seller and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in order writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to effect an assignment of the Assigned Contractpay any consideration therefor. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Purchased Asset to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration. Applicable sales, which transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be considered the Closing Date for such Assigned Contract.
(b) To the extent that any Assigned Contract cannot be transferred to paid by Buyer at or following the Closing in accordance with this Agreement, Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and operational equivalent of the transfer of such Assigned Contract to Buyer as of the Closing and the performance by Buyer of its obligations with respect theretoSection 6.11.
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.084.07, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset or SpinCo Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE IIIArticle IX, if Buyer, at its sole option, waives the condition in Section 9.01(c), the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Merger Consideration on account thereof. Following the Closing, Seller and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all SpinCo Contracts or other liabilities that constitute SpinCo Liabilities or to obtain in order writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer shall be solely responsible for such liabilities and obligations from and after the Effective Time; provided, however, that neither Seller nor Buyer shall be required to effect an assignment pay any consideration therefor, unless the agreement being assigned requires payment of the Assigned Contracta de minimis review fee or similar fee, in which case, Seller shall be responsible for such payment. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract SpinCo Asset to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration. Applicable sales, which transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be considered the Closing Date for such Assigned Contractpaid by Seller in accordance with Section 8.15.
(b) To the extent that any Assigned material asset of Seller utilized in connection with the Business on a non-exclusive basis, including a Contract that is not a SpinCo Contract (a "Shared Contract"), or any SpinCo Asset and/or SpinCo Liability cannot be transferred to Buyer at or following the Closing in accordance with pursuant to this AgreementSection 4.07, Buyer and Seller shall provide, pursuant to the Transition Services Agreement or Section 8.21, or use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide provide, to the parties the economic and and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Assigned Shared Contract or SpinCo Asset and/or SpinCo Liability to Buyer as of the Closing and the performance by Buyer of its obligations with respect thereto; provided that Buyer acknowledges that certain human resources, travel, corporate development, commercial banking, legal, accounting, finance, vendor management, insurance and tax-related functions provided to the Business by Seller will be taken over by Buyer at the Closing. Buyer shall, as agent or subcontractor for Seller pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Effective Time. To the extent permitted under applicable Law, Seller shall, at Buyer's expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Shared Contract or SpinCo Asset and all income, proceeds and other monies received by Seller to the extent related to such Shared Contract or SpinCo Asset in connection with the arrangements under this Section 4.07. Notwithstanding anything herein to the contrary, the provisions of this Section 4.07 shall not apply to any consent or approval required under any antitrust, competition or trade regulation Law, which consent or approval shall be governed by Section 8.
Appears in 1 contract
Sources: Purchase and Assumption Agreement and Plan of Merger (Customers Bancorp, Inc.)
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.081.06, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authoritygovernmental authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE IIIArticle VI, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration Purchase Price on account thereof. Following the Closing, Seller and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver waiver, or any release, substitution or amendment required to novate all liabilities and obligations under any and all Assigned Contracts or other liabilities that constitute Assumed Liabilities or to obtain in order writing the unconditional release of all parties to such arrangements, so that, in any case, Buyer shall be solely responsible for such liabilities and obligations from and after the Closing Date; provided, however, that neither Seller nor Buyer shall be required to effect an assignment of the Assigned Contractpay any consideration therefor. Once such consent, authorization, approval approval, waiver, release, substitution or waiver amendment is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Purchased Asset to which such consent, authorization, approval approval, waiver, release, substitution or waiver amendment relates for no additional consideration. Applicable sales, which transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be considered the Closing Date for such Assigned Contractpaid by Buyer in accordance with Section 5.07.
(b) To the extent that any Purchased Asset, Assigned Contract and/or Assumed Liability cannot be transferred to Buyer at or following the Closing in accordance with pursuant to this AgreementSection1.06, Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to the parties the economic and and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Purchased Asset, Assigned Contract Contract, and/or Assumed Liability to Buyer as of the Closing and the performance by Buyer of its obligations with respect thereto. Buyer shall, as agent or subcontractor for Seller pay, perform and discharge fully the liabilities and obligations of Seller thereunder from and after the Closing Date. To the extent permitted under applicable Law, Seller shall, at Buyer’s expense, hold in trust for and pay to Buyer promptly upon receipt thereof, such Purchased Asset or Assigned Contract and all income, proceeds and other monies received by Seller to the extent related to such Purchased Asset or Assigned Contract in connection with the arrangements under this Section 1.06. Seller shall be permitted to set off against such amounts all direct costs associated with the retention and maintenance of such Purchased Assets and Assigned Contracts. (For the avoidance of doubt, this Section 1.06 will apply in the event a governmental/municipal bid is non-assignable and the parties would cooperate such that Buyer would construct the vehicle as subcontractor for Seller.)
Appears in 1 contract
Non-Assignable Assets. (a) Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of this Section 2.08, to the extent that the sale, assignment, transfer, conveyance or delivery, or attempted sale, assignment, transfer, conveyance or delivery, to Buyer of any Assigned Contract Purchased Asset would result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (including any Governmental Authority), and such consent, authorization, approval or waiver shall not have been obtained prior to the consummation of the Closing, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery, or an attempted sale, assignment, transfer, conveyance or delivery, thereof; provided, however, that, subject to the satisfaction or waiver of the conditions contained in ARTICLE III, the Closing shall occur notwithstanding the foregoing without any adjustment to the Transaction Consideration on account thereof. Following the consummation of the Closing, Seller and Buyer shall continue to use commercially reasonable efforts, and Seller and Buyer shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver in order for waiver; provided, however, that neither Seller nor Buyer shall be required to effect an assignment of the Assigned Contractpay any consideration therefor. Once If and when such consent, authorization, approval or waiver is obtained, Seller shall sell, assign, transfer, convey and deliver to Buyer the relevant Assigned Contract Purchased Asset to which such consent, authorization, approval or waiver relates for no additional considerationconsideration and Buyer shall, which without payment of any consideration therefor, assume from and after the date of such assignment the obligations thereunder (but only the obligations of Seller thereunder arising exclusively from, and accruing exclusively with respect to, the period after the date of such assignment (other than obligations thereunder arising as a result of the breach thereof at or prior to such assignment) and only to the extent that such obligations would have constituted Assumed Liabilities if such assignment had occurred on the Closing Date). Applicable sales, transfer and other similar Taxes in connection with such sale, assignment, transfer, conveyance or license shall be considered the Closing Date for such Assigned Contractpaid in accordance with Section 6.06.
(b) To the extent that any Assigned Contract Purchased Asset cannot be transferred to Buyer at or following the Closing in accordance with pursuant to this AgreementSection 2.08, Buyer and Seller shall use commercially reasonable efforts to enter into such arrangements (such as subleasingprovide Buyer with the economic and, sublicensing or subcontracting) to provide to the parties the economic and extent permitted under applicable Law, operational equivalent benefits of the transfer of such Assigned Contract Purchased Asset to Buyer as of the Closing. Buyer shall, as agent or subcontractor for Seller, to the extent permitted under applicable Law (but only to the extent Buyer shall receive the benefits thereunder pursuant to the prior sentence), assume the Liabilities of Seller thereunder from and after the date such benefits are provided to it (other than obligations thereunder arising as a result of the breach thereof at or prior the Closing and only to the performance extent that such obligations would have constituted Assumed Liabilities if such assignment had occurred on the Closing Date) but only for so long as such benefits are provided to it. To the extent permitted under applicable Law, Seller shall pay to Buyer promptly upon receipt thereof all income, proceeds and other monies received by Seller, or any claim or right or any benefit arising thereunder to the extent that Buyer of its obligations would be entitled thereto pursuant hereto, to the extent related to such Purchased Asset in connection with respect theretothe arrangements under this Section 2.08.
Appears in 1 contract