Other Closing Documentation. (a) If Buyer determines that the assignment to Buyer at Closing of a Transferring Real Property Lease with a landlord that is or has a direct or indirect ownership interest in: (i) a Physician or the Immediate Family Member of a Physician, (ii) a physician medical practice, (iii) a hospital or health system, or (iv) any other type of health care provider containing terms or conditions that do not comply with applicable Law, then Buyer may request that Seller seek, at Buyer’s sole expense, an amendment to such lease in order that such assignment would comply with applicable Law (each such amendment, a “Lease Amendment”). Seller shall use commercially reasonable efforts to obtain each such requested Lease Amendment prior to Closing, and each Lease Amendment shall be in form and substance reasonably acceptable to Buyer. For the elimination of doubt, no Lease Amendment shall be a condition to the consummation of Closing. If any requested Lease Amendment is not entered into prior to Closing, then the related Transferring Real Property Lease shall become an Excluded Asset for all purposes under this Agreement, and Seller shall use commercially reasonable efforts to seek such Lease Amendment post-Closing, until the earlier of (A) the 90th day immediately following the Closing Date and (B) the expiration of any such Transferring Real Property Lease, and, as promptly as reasonably practicable, assign such Transferring Real Property Lease to Buyer following entering into such Lease Amendment. (b) At the Closing, the Seller Parties shall use their commercially reasonable efforts to deliver to Buyer (i) lease assignments, duly executed by Seller or its Affiliates (as applicable) and the applicable assignee, each in forms reasonably satisfactory to Buyer, pursuant to which the Seller Parties shall assign and Buyer shall assume the Transferring Real Property Leases, (ii) with respect to each Transferring Real Property Lease, an estoppel certificate from the landlord under such Transferring Real Property Lease in form and substance reasonably acceptable to Buyer, which shall include, to the extent required by such Transferring Real Property Lease, a Consent of the landlord to the assignment of such Transferring Real Property Lease to Buyer, (iii) a complete landlord disclosure letter in the form provided by Buyer from the applicable lessor in connection herewith, in form and substance reasonably satisfactory to Buyer, (iv) a properly completed Form W-9 from each landlord, (v) any Lease Amendments required pursuant to Section 4.10(a) and (vi) such other documentation that Buyer may reasonably request to consummate the assignment of the Transferring Real Property Leases (collectively, the “Transferring Lease Assignments”). (c) With respect to Transferring Real Property for which the Transferring Lease Assignments are not delivered at the Closing, as soon as reasonably practicable, and in any event within sixty (60) days following the Closing Date, subject to the terms of Section 4.5(c), Seller shall deliver to Buyer, duly executed by Seller (or its applicable Affiliates), the Transferring Lease Assignments in form and substance reasonably satisfactory to Buyer including with respect to compliance with applicable Law, including all Consents or waivers.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Opko Health, Inc.), Asset Purchase Agreement (Opko Health, Inc.)
Other Closing Documentation. (a) If Buyer determines that the assignment to Buyer at Closing of a Transferring Real Property Lease with a landlord that is or has a direct or indirect ownership interest in: (i) a Physician or the Immediate Family Member of a Physician, (ii) a physician medical practice, (iii) a hospital or health system, or (iv) any other type of health care provider containing terms or conditions that do not comply with applicable Law, then Buyer may request that Seller seek, at Buyer’s sole expense, an amendment to such lease in order that such assignment would comply with applicable Law (each such amendment, a “Lease Amendment”). Seller shall use commercially reasonable efforts to obtain each such requested Lease Amendment prior to Closing, and each Lease Amendment shall be in form and substance reasonably acceptable to Buyer. For the elimination of doubt, no Lease Amendment shall be a condition to the consummation of Closing. If any requested Lease Amendment is not entered into prior to Closing, then the related Transferring Real Property Lease shall become an Excluded Asset for all purposes under this Agreement, and Seller shall use commercially reasonable efforts to seek such Lease Amendment post-Closing, until the earlier of (A) the 90th day immediately following the Closing Date and (B) the expiration of any such Transferring Real Property Lease, and, as promptly as reasonably practicable, assign such Transferring Real Property Lease to Buyer following entering into such Lease Amendment.
(b) At the Closing, the Seller Parties shall use their commercially reasonable efforts to deliver to Buyer (i) a lease assignmentsassignment, duly executed by Seller or its Affiliates (as applicable) and the applicable assignee, each in forms form reasonably satisfactory to Buyer, pursuant to which the Seller Parties shall assign and Buyer shall assume the Transferring Real Property LeasesLease, (ii) with respect to each the Transferring Real Property Lease, an estoppel certificate from the landlord under such Transferring Real Property Lease in form and substance reasonably acceptable to Buyer, which shall include, to the extent required by such Transferring Real Property Lease, a Consent of the landlord to the assignment of such Transferring Real Property Lease to Buyer, (iii) a complete landlord disclosure letter in the form provided by Buyer from the applicable lessor in connection herewith, in form and substance reasonably satisfactory to Buyer, (iv) a properly completed Form W-9 from each landlord, (v) any Lease Amendments required pursuant to Section 4.10(a) and (vi) such other documentation that Buyer may reasonably request to consummate the assignment of the Transferring Real Property Leases Lease (collectively, the “Transferring Lease AssignmentsAssignment”).
(c) With respect to Transferring Real Property for which the Transferring Lease Assignments are Assignment is not delivered at the Closing, as soon as reasonably practicable, and in any event within sixty (60) days following the Closing Date, subject to the terms of Section 4.5(c), Seller shall deliver to Buyer, duly executed by Seller (or its applicable Affiliates), the Transferring Lease Assignments Assignment in form and substance reasonably satisfactory to Buyer including with respect to compliance with applicable Law, including all Consents or waivers.
(d) Seller has submitted as of the Agreement Date, or will promptly submit after the Agreement Date, applications for (i) a CLIA license, (ii) New Jersey Laboratory License, and (iii) a clinical laboratory permit with the New York State Department of Health contingent upon Buyer providing to Seller a professional interpretation test menu (collectively, the “Laboratory Licenses”). At the Closing, Seller shall cause the Laboratory Licenses to be transferred to Buyer for ▇▇▇▇▇’s use at the New Dry Laboratory; provided that to the extent that the Laboratory Licenses are not able to be transferred to Buyer for Buyer’s use at the New Dry Laboratory as of the Closing Date, the Laboratory Licenses shall be treated as Nonassignable Items in accordance with Section 4.5(c). During the Interim Period, the parties shall cooperate in good faith to agree on the terms and conditions of a sublease (the “Sublease”), which such Sublease shall be subject to the consent of Seller’s landlord (“Prime Landlord”) pursuant to Seller’s lease agreement with Prime Landlord for the New Dry Laboratory property (the “Prime Lease”), to be entered into by and among the parties at arms’ length and at fair market value, such that Buyer shall be able to utilize space at Seller’s facility for which the Laboratory Licenses relate to allow ▇▇▇▇▇ to establish a new dry laboratory at which the Hired Employees who are pathologists may continue to work after the Laboratory Licenses are transferred to Buyer at that location (the “New Dry Laboratory”). The parties shall use commercially reasonable efforts to obtain Prime Landlord consent as may be required for the parties to enter into the Sublease; provided that notwithstanding anything to the contrary contained herein, the parties further agree that, if applicable, the Sublease shall be treated as a Nonassignable Item in accordance with Section 4.5(c). At such time as the Laboratory Licenses are able to be transferred to Buyer, the parties shall work together in good faith to (x) enter into the Sublease, (y) cause the Laboratory Licenses to be transferred to Buyer at such time as is reasonably agreed to between the parties to avoid any disruptions in the continuity of care for the Business Customers and (z) ensure that the Laboratory Licenses will allow Buyer to perform all tests contemplated to be performed pursuant to the Transition Services Agreement at the New Dry Laboratory.
Appears in 1 contract