Assumed Contracts. The transfer of the Assumed Contracts shall be effected as follows: (a) Any Assumed Contract which can be assigned by the Seller to the Purchaser without the consent of the relevant counter-party the (“Counterparty”) shall be transferred by the Seller to the Purchaser on the Closing Date. The Parties shall inform the Counterparty, as necessary, of such assignment. (b) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2.. (c) Except for the GSK Agreements and the Servier Agreements, if and insofar as the benefit of any Assumed Contract cannot be transferred by the Seller to the Purchaser at Closing without the agreement or consent of any Counterparty or the novation of the relevant Assumed Contract (or where such transfer or purported transfer would constitute a breach of such Assumed Contract or give rise to a right to terminate such Assumed Contract): o This Agreement shall not constitute an assignment or attempted assignment of any such Assumed Contract; o Beginning on the date hereof, the Purchaser and the Seller shall use all reasonable endeavors (but without being required to incur unreasonable costs or make any payments to any Counterparty) to obtain such consent or to procure that such Assumed Contract is assigned or novated as soon as possible after Closing; o If before the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (x) the Parties shall continue to use their reasonable commercial efforts to obtain such consent as promptly as possible after the Closing Date, and (y) with respect to such contract under the list of Assumed Contracts for which the appropriate consents have not been obtained prior to the Closing Date, and until such consents are obtained, the Seller shall, to the extent permissible and lawful under the relevant contract, continue the performance of such contracts on behalf of the Purchaser, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, that such claims do not arise out of a breach by the Seller of the terms and conditions of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory to the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac Business., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract
Appears in 1 contract
Assumed Contracts. The transfer of the Assumed Contracts shall be effected as follows:
(a) Any Assumed Contract which can be assigned by the Seller Notwithstanding anything in this Agreement to the Purchaser without the consent of the relevant counter-party the (“Counterparty”) shall be transferred by the Seller to the Purchaser on the Closing Date. The Parties shall inform the Counterpartycontrary, as necessary, of such assignment.
(b) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2..
(c) Except for the GSK Agreements and the Servier Agreements, if and insofar as the benefit of any Assumed Contract cannot be transferred by the Seller to the Purchaser at Closing without the agreement or consent of any Counterparty or the novation of the relevant Assumed Contract (or where such transfer or purported transfer would constitute a breach of such Assumed Contract or give rise to a right to terminate such Assumed Contract): o This this Agreement shall not constitute an assignment agreement to assign any Assumed Contract which, after giving effect to the provisions of Section 365 of the Bankruptcy Code and the Sale Order, is not assignable or attempted assignment transferable without the consent of any such Assumed Contract; o Beginning on the date hereofPerson, the Purchaser and the Seller shall use all reasonable endeavors (but without being required to incur unreasonable costs other than Sellers, any of their respective Subsidiaries or make any payments to any Counterparty) to obtain such consent Affiliates or to procure that such Assumed Contract is assigned or novated as soon as possible after Closing; o If before the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (x) the Parties shall continue to use their reasonable commercial efforts to obtain such consent as promptly as possible after the Closing Date, and (y) with respect to such contract under the list of Assumed Contracts for which the appropriate consents have not been obtained prior to the Closing Date, and until such consents are obtained, the Seller shallBuyer, to the extent permissible and lawful under that such consent shall not have been given prior to the relevant contract, continue the performance of such contracts on behalf of the Purchaser, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, Closing; provided, however, that (i) Sellers shall use, whether before or after the Closing, their commercially reasonable efforts to obtain all necessary consents (each, a “Necessary Consent”) to the assignment and transfer thereof, it being understood that, to the extent the foregoing shall require any action by Sellers that would, or would continue to, have an adverse effect on the business of Buyer or any of its Affiliates after the Closing, such claims do action shall require the prior written consent of Buyer, and (ii) in the event that any Assumed Contract is deemed not arise out to be assigned pursuant to clause (i) of a breach this Section 2.4(a), Sellers shall (A) use commercially reasonable efforts to obtain such Necessary Consents as promptly as practicable after the Closing and (B) cooperate in good faith in any lawful and commercially reasonable arrangement reasonably proposed by Buyer, including subcontracting, licensing or sublicensing to Buyer any or all of any Seller’s rights and obligations with respect to any such Assumed Contract, under which Buyer shall obtain (without infringing upon the Seller legal rights of such third party or violating any Law) the economic rights and benefits under such Assumed Contract with respect to which such Necessary Consent has not been obtained. Upon satisfying any requisite consent requirement applicable to such Assumed Contract after the Closing, such Assumed Contract shall promptly be transferred and assigned to Buyer in accordance with the terms of this Agreement and such transfer and assignment shall be without any additional payment by Buyer. These commercially reasonable efforts shall not require any material payment or other material consideration from Sellers or the Buyer (other than the Cure Costs), and any such consent shall contain terms and conditions of such Contracts, in which case reasonably acceptable to the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breachParties, and (znothing in this Section 2.4(a) once or otherwise shall prevent any Seller that is a Debtor from terminating, dissolving, liquidating, or winding up. For the consent is obtainedavoidance of doubt, the Seller shall transfer such contracts and term “material” in the related revenues and charges from prior sentence means material in the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation context of the relevant contract or will only give such consent subject to terms which are not satisfactory to the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac BusinessAssumed Contract., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract
Appears in 1 contract
Sources: Asset Purchase Agreement
Assumed Contracts. The transfer (a) Limited shall, with effect from the Completion Date, assign to the order of the Purchaser, or procure the assignment to the order of the Purchaser of, all the Assumed Contracts shall be effected as follows:
(a) Any Assumed Contract which can be assigned by the Seller to the Purchaser are capable of assignment without the consent of the relevant counter-party the (“Counterparty”) shall be transferred by the Seller to the Purchaser on the Closing Date. The Parties shall inform the Counterparty, as necessary, of such assignmenta Third Party Consent.
(b) The As soon as reasonably practicable following the Completion, Purchaser shall, where required and Sellers shall jointly execute an announcement notifying all parties to the Assumed Contracts of the assignment set forth herein and under the terms of the relevant Assumed Contract to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2..other Transaction Documents.
(c) Except for If any of the GSK Agreements and the Servier Agreements, if and insofar as the benefit of any Assumed Contract Contracts cannot be transferred by the Seller to the Purchaser at Closing without the agreement or consent of any Counterparty or the novation of the relevant Assumed Contract (or where such transfer or purported transfer would constitute a breach of such Assumed Contract or give rise to a right to terminate such Assumed Contract): o This Agreement shall not constitute an assignment or attempted assignment of any such Assumed Contract; o Beginning on the date hereof, the Purchaser and the Seller shall use all reasonable endeavors (but without being required to incur unreasonable costs or make any payments to any Counterparty) to obtain such consent or to procure that such Assumed Contract is assigned or novated as soon as possible after Closing; o If before the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (x) the Parties without obtaining a Third Party Consent, then Limited and AC shall continue to use their reasonable commercial best efforts to obtain such consent consents following the Completion.
(d) Insofar as promptly as possible after any of the Closing Date, and (y) with respect to such contract under the list of Assumed Contracts for which the appropriate consents have cannot been obtained prior to the Closing Date, and until such consents are obtained, the Seller shall, to the extent permissible and lawful under the relevant contract, continue the performance of such contracts on behalf of the Purchaser, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, that such claims do not arise out of a breach by the Seller of the terms and conditions of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller be assigned or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory novated to the Purchaser without Third Party Consent, and such consent is refused or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach ofotherwise not obtained, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase where any of the Pessac Business., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the Assumed Contracts are incapable of transfer to the Purchaser by assignment, novation or other means, all economic benefits of such Assumed Contracts shall nevertheless be deemed to be assigned to Purchaser and to the extent that contracteither Seller receives any payment in respect thereof, such Seller shall immediately remit such payment directly to Purchaser. Sellers agree that Purchaser shall have all right to take actions on such Assumed Contracts on behalf of or in the name of the relevant Seller in order to gain the full benefits of such Assumed Contracts. After the Completion Date, Sellers agree not to take any actions under the Assumed Contracts without the advance written consent of Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (Management Network Group Inc)
Assumed Contracts. The transfer Sellers shall use their best efforts to obtain any required consents of third parties to assign the Assumed Contracts on or before the Closing Date. Notwithstanding the foregoing or anything to the contrary in this Agreement, if any required consents to assignment relating to any of the Assumed Contracts shall be effected as follows:
(a) Any Assumed Contract which can be assigned have not been obtained by the Seller to the Purchaser without the consent of the relevant counter-party the (“Counterparty”) shall be transferred by the Seller to the Purchaser on the Closing Date. The Parties shall inform , neither this Agreement nor any other document related to the Counterparty, as necessary, of such assignment.
(b) The Purchaser shall, where required under the terms consummation of the relevant Assumed Contract Transactions will constitute an assignment or an agreement to perfect the assign if such assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2..
(c) Except for the GSK Agreements and the Servier Agreements, if and insofar as the benefit of any Assumed Contract cannot be transferred by the Seller to the Purchaser at Closing without the agreement or consent of any Counterparty or the novation of the relevant Assumed Contract (or where such transfer or purported transfer attempted assignment would constitute a breach of such Assumed Contract or give rise to a right to terminate such Assumed Contract): o This Agreement shall not constitute an assignment or attempted assignment of any such Assumed Contract; o Beginning on the date hereof, the Purchaser and the Seller shall use all reasonable endeavors (but without being required to incur unreasonable costs or make any payments to any Counterparty) to obtain such consent or to procure that such Assumed Contract is assigned or novated as soon as possible after Closing; o If before the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (x) the Parties shall continue to use their reasonable commercial efforts to obtain such consent as promptly as possible after the Closing Date, and (y) with respect to such contract under the list of Assumed Contracts for which the appropriate consents have not been obtained prior to the Closing Date, and until such consents are obtained, the Seller shall, to the extent permissible and lawful under the relevant contract, continue the performance of such contracts on behalf of the Purchaser, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, that in each such claims do case, Sellers shall use commercially reasonable efforts after the Closing to obtain the consent to assignment from such third party, and Purchaser shall cooperate (at its own expense) in obtaining any such consent. If Sellers and Purchaser are not arise out successful in obtaining a consent relating to any of the Assumed Contracts on or before the Closing Date, then (i) Sellers, to the maximum extent permitted by applicable Law and the Assumed Contracts at issue, shall act after the Effective Time as Purchaser’s agent in order to obtain for Purchaser the benefits thereunder and shall cooperate, to the maximum extent permitted by applicable Law and such Assumed Contracts, with Purchaser in any other reasonable arrangement designed to provide such benefits to Purchaser and (ii) Purchaser shall perform, at its sole expense, the obligations (to the extent such obligations would have been Assumed Liabilities had such Assumed Contracts been assigned at Closing) of Sellers to be performed after the Effective Time under the Assumed Contracts at issue and shall otherwise maintain all financial responsibility with respect to such arrangement. For the avoidance of doubt, nothing in this Section 4.05 limits in any way Sellers’ obligations to deliver those consents set forth on Schedule 9.02(b)(v) in connection with the Closing and the Sellers shall indemnify the Purchaser for any liabilities or obligations to the extent implementation of this Section 4.05 results in a breach by the Seller or termination of the terms and conditions of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory to the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac Businessan Assumed Contract., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract
Appears in 1 contract
Sources: Purchase and Sale Agreement (National Healthcare Corp)
Assumed Contracts. The transfer If Purchaser delivers a written notice of objection to any Contract prior to the expiration of the Due Diligence Period, then, to the extent a termination right in favor of Seller is provided for in such Contract, or if such Contract does not prohibit termination, the Seller shall cause its Property Manager to provide a notice of termination within two (2) Business Days of the expiration of the Due Diligence Period to the vendor thereunder with respect to each such Contract to which Purchaser has timely objected (collectively, the “Objectionable Contracts”); provided, however, that (i) Purchaser may not object to any of the Contracts marked as “must assume” on Schedule 3.1(j) and shall assume the same at Closing pursuant to the B▇▇▇ of Sale and Assignment; (ii) Seller shall have no obligation to terminate any Contract which by its terms is not terminable or which cannot be terminated without payment of an express termination fee or penalty, unless Purchaser agrees in writing to pay such termination fee or penalty; (iii) if the termination of any Objectionable Contract cannot be made effective upon the Closing Date (it being agreed and acknowledged that Seller shall not be obligated to pay any money to accomplish such termination), then such Objectionable Contract shall be assumed by Purchaser at Closing pursuant to the B▇▇▇ of Sale and Assignment (together with all Assumed Contracts with respect to the Property that do not constitute Objectionable Contracts) for the remaining period of such Contract until its effective date of termination; and (iv) Purchaser shall be effected as follows:
responsible for any termination fees payable with respect to the termination of any Objectionable Contracts. Notwithstanding the foregoing, Purchaser shall not be required or entitled to assume: (ax) Any Assumed any Contract which can that, by its terms, may not be assigned to and assumed by the Seller to the Purchaser without the consent of the relevant counter-party the (“Counterparty”) shall be transferred by the Seller to the Purchaser on the Closing Date. The Parties shall inform the Counterpartya third party, as necessary, of unless such assignment.
(b) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2..
(c) Except for the GSK Agreements and the Servier Agreements, if and insofar as the benefit of any Assumed Contract cannot be transferred by the Seller to the Purchaser third party’s written consent is actually obtained at Closing without the agreement or consent of any Counterparty or the novation of the relevant Assumed Contract (or where such transfer or purported transfer would constitute a breach of such Assumed Contract or give rise to a right to terminate such Assumed Contract): o This Agreement shall not constitute an assignment or attempted assignment of any such Assumed Contract; o Beginning on the date hereof, the Purchaser and the Seller shall use all reasonable endeavors (but without being required to incur unreasonable costs or make any payments to any Counterparty) to obtain such consent or to procure that such Assumed Contract is assigned or novated as soon as possible after before Closing; o If before the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (x) the Parties shall continue to use their reasonable commercial efforts to obtain such consent as promptly as possible after the Closing Date, and or (y) with respect any Contract that is not reflected on Schedule 3.1(j). All Contracts that Purchaser is required to such contract under assume or elects to assume hereunder are collectively referred to herein as the list of “Assumed Contracts for which the appropriate consents have not been obtained prior to the Closing Date, and until such consents are obtained, the Seller shall, to the extent permissible and lawful under the relevant contract, continue the performance of such contracts on behalf of the Purchaser, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, that such claims do not arise out of a breach by the Seller of the terms and conditions of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory to the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac Business., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract”
Appears in 1 contract
Sources: Purchase and Sale Agreement (Bluerock Residential Growth REIT, Inc.)
Assumed Contracts. The transfer If Purchaser delivers a written notice of objection to any Contract prior to the expiration of the Due Diligence Period, then, to the extent a termination right in favor of Seller is provided for in such Contract, or if such Contract does not prohibit termination, Seller shall cause Existing Property Manager to provide a notice of termination within two (2) Business Days of the expiration of the Due Diligence Period to the vendor thereunder with respect to each such Contract to which Purchaser has timely objected (collectively, the “Objectionable Contracts”); provided, however, that (i) Purchaser may not object to any of the Contracts marked as “must assume” on Schedule 3.1(j) and shall assume the same at Closing pursuant to the B▇▇▇ of Sale and Assignment; (ii) Seller shall have no obligation to terminate any Contract which by its terms is not terminable or which cannot be terminated without payment of an express termination fee or penalty, unless Purchaser agrees in writing to pay such termination fee or penalty; (iii) if the termination of any Objectionable Contract cannot be made effective upon the Closing Date (it being agreed and acknowledged that Seller shall not be obligated to pay any money to accomplish such termination), then such Objectionable Contract shall be assumed by Purchaser at Closing pursuant to the B▇▇▇ of Sale and Assignment (together with all Assumed Contracts with respect to the Property that do not constitute Objectionable Contracts) for the remaining period of such Contract until its effective date of termination; and (iv) Purchaser shall be effected as follows:
responsible for any termination fees payable with respect to the termination of any Objectionable Contracts. Notwithstanding the foregoing, Purchaser shall not be required or entitled to assume: (ax) Any Assumed any Contract which can that, by its terms, may not be assigned to and assumed by the Seller to the Purchaser without the consent of the relevant counter-party the (“Counterparty”) shall be transferred by the Seller to the Purchaser on the Closing Date. The Parties shall inform the Counterpartya third party, as necessary, of unless such assignment.
(b) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2..
(c) Except for the GSK Agreements and the Servier Agreements, if and insofar as the benefit of any Assumed Contract cannot be transferred by the Seller to the Purchaser third party’s written consent is actually obtained at Closing without the agreement or consent of any Counterparty or the novation of the relevant Assumed Contract (or where such transfer or purported transfer would constitute a breach of such Assumed Contract or give rise to a right to terminate such Assumed Contract): o This Agreement shall not constitute an assignment or attempted assignment of any such Assumed Contract; o Beginning on the date hereof, the Purchaser and the Seller shall use all reasonable endeavors (but without being required to incur unreasonable costs or make any payments to any Counterparty) to obtain such consent or to procure that such Assumed Contract is assigned or novated as soon as possible after before Closing; o If before the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (x) the Parties shall continue to use their reasonable commercial efforts to obtain such consent as promptly as possible after the Closing Date, and or (y) with respect any Contract that is not reflected on Schedule 3.1(j). All Contracts that Purchaser is required to such contract under assume or elects to assume hereunder are collectively referred to herein as the list of “Assumed Contracts for which the appropriate consents have not been obtained prior to the Closing Date, and until such consents are obtained, the Seller shall, to the extent permissible and lawful under the relevant contract, continue the performance of such contracts on behalf of the Purchaser, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, that such claims do not arise out of a breach by the Seller of the terms and conditions of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory to the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac Business., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract”
Appears in 1 contract
Sources: Purchase and Sale Agreement (Bluerock Residential Growth REIT, Inc.)
Assumed Contracts. The transfer Seller's interest in the contracts associated primarily with the FPBU, as identified in Disclosure Schedule 1.1.5 (the "Assumed Contracts"), together with all rights, privileges, claims, demands, refunds and indemnifications in favor of Seller under the Assumed Contracts shall be effected as follows:
Contracts, but excluding the contracts identified under Section 1.2.5 (a) Any the "Excluded Contracts"). To the extent that Seller's rights under any Assumed Contract which can may not be assigned by the Seller to the Purchaser without the consent of the relevant counter-party the (“Counterparty”) shall be transferred by the Seller to the Purchaser on the Closing Date. The Parties shall inform the Counterpartyanother person which has not been obtained, as necessary, of such assignment.
(b) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2..
(c) Except for the GSK Agreements and the Servier Agreements, if and insofar as the benefit of any Assumed Contract cannot be transferred by the Seller to the Purchaser at Closing without the agreement or consent of any Counterparty or the novation of the relevant Assumed Contract (or where such transfer or purported transfer would constitute a breach of such Assumed Contract or give rise to a right to terminate such Assumed Contract): o This this Agreement shall not constitute an assignment or agreement to assign the same if an attempted assignment of any such Assumed Contract; o Beginning on the date hereofwould constitute a breach thereof or be unlawful, the Purchaser and the Seller and Buyer shall use all reasonable endeavors (but without being required to incur unreasonable costs or make any payments to any Counterparty) to obtain such consent or to procure that such Assumed Contract is assigned or novated as soon as possible after Closing; o If before the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (x) the Parties shall continue to use their reasonable commercial efforts to obtain any such consent required consent(s) as promptly as possible possible. If any such consent shall not be obtained or if any attempted assignment would be ineffective or would impair Buyer's rights under the Assumed Contract in question so that Buyer would not in effect acquire the benefit of all such rights, Seller, to the maximum extent permitted by law and the Assumed Contract, shall act after the Closing Date, as Buyer's agent in order to obtain for Buyer the benefits thereunder and (y) with respect to such contract under the list of Assumed Contracts for which the appropriate consents have not been obtained prior to the Closing Date, and until such consents are obtained, the Seller shallshall cooperate, to the maximum extent permissible permitted by law and lawful under the relevant Assumed Contract, with Buyer in any other reasonable arrangement designed to provide such benefits to Buyer and Buyer shall reimburse Seller for the costs incurred by Seller in providing such benefits to Buyer and in complying with the terms of the Assumed Contract which Buyer would have incurred directly if the Assumed Contract were to be assigned to Buyer. The parties have attempted to identify all existing contracts associated with the FPBU and to classify each contract either as an Assumed Contract or an Excluded Contract. After the Closing, if Seller or Buyer becomes aware of any contract associated with the FPBU, which is not identified as an Assumed Contract or an Excluded Contract, the discovering party will promptly provide the other party with a copy of the contract, continue the performance of such contracts on behalf together with an explanation of the Purchasercircumstances of discovery. Seller will thereafter provide Buyer such additional information about the contract as may be reasonably requested by Buyer. Within 30 days after its provision or receipt of the notice, Buyer may, by written notice to Seller, agree to assume the contract, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, that such claims do not arise out of a breach by the Seller of the terms and conditions of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or become an Assumed Contract; otherwise it will only give such consent subject to terms which are not satisfactory to the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac Business., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contractbecome an Excluded Contract;
Appears in 1 contract
Assumed Contracts. The transfer True and complete copies of all Assumed Contracts have been (or, in the case of the Open Purchase Orders, will be) delivered or made available to Purchaser. Except as set forth in Section 3.8(a) of the Seller Disclosure Letter, each of the Assumed Contracts shall (other than the Open Purchase Orders) is valid, binding and enforceable in accordance with its terms (except to the extent that enforcement may be effected as follows:
(a) Any Assumed Contract which can be assigned affected by Laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies) on Seller to the Purchaser without the consent of the relevant counter-party the (“Counterparty”) shall be transferred by the Seller to the Purchaser on the Closing Date. The Parties shall inform the Counterparty, as necessary, of such assignment.
(b) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2..
(c) Except for the GSK Agreements and the Servier Agreementsother parties thereto and is in full force and effect. Neither Seller nor, if and insofar as the benefit of to Seller's Knowledge, any other party thereto is in default in any material respect under any Assumed Contract cannot be transferred (other than the Open Purchase Orders) (and no condition exists that, with notice or lapse of time or both, would become such a default by Seller or, to Seller's Knowledge, any such other party). Except as set forth in Section 3.8(b) of the Seller to the Purchaser at Closing without the agreement or consent of any Counterparty or the novation Disclosure Letter, none of the relevant Assumed Contracts (other than the Open Purchase Orders) is currently being renegotiated. Except as set forth in Section 3.8(c) of the Seller Disclosure Letter, no party to any of the Assumed Contracts (other than the Open Purchase Orders) has made, asserted or, to Seller's Knowledge, has any defense, setoff or counterclaim under its Assumed Contract (other than the Open Purchase Orders) or where such transfer has exercised any option granted to it to cancel, terminate or purported transfer would constitute a breach shorten the term of such its Assumed Contract or give rise to (other than the Open Purchase Orders). Section 3.8(d) of the Seller Disclosure Letter sets forth a right to terminate such Assumed Contract): o This Agreement shall not constitute an assignment or attempted assignment true and complete list of all rebate, allowance, customer payment and other similar programs currently offered by Seller in respect of any such Assumed Contract; o Beginning on Products sold under any of the date hereof, the Purchaser and the Seller shall use all reasonable endeavors (but without being required to incur unreasonable costs or make any payments to any Counterparty) to obtain such consent or to procure that such Assumed Contract is assigned or novated as soon as possible after Closing; o If before the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (xother than the Open Purchase Orders). Section 3.8(e) of the Parties shall continue to use their reasonable commercial efforts to obtain such consent as promptly as possible after Seller Disclosure Letter sets forth a description (including the Closing Date, and (yamounts) with respect to such contract of all prepaid items under the list of Assumed Contracts for which (other than the appropriate consents have not been obtained prior Open Purchase Orders). The aggregate amount payable to Seller under all Open Purchase Orders, net of freight costs, will exceed the Closing Date, and until such consents are obtained, aggregate value (determined in accordance with the Seller shall, to the extent permissible and lawful under the relevant contract, continue the performance of such contracts accounting principles set forth on behalf Schedule 2.4 hereof) of the Purchaser, in Inventory to which case the Purchaser shall hold the Seller harmless from all claims made such Open Purchase Orders relate by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, that such claims do not arise out of a breach by the Seller of the terms and conditions of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory to the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac Businessat least 10%., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract
Appears in 1 contract
Assumed Contracts. 7.1 The transfer Buyer shall assume and perform all of the obligations of the Seller under the Assumed Contracts to be performed (in accordance with the terms of such Assumed Contracts) after Closing.
7.2 In so far as the benefit (subject to the burden as hereinafter provided) of any of the Assumed Contracts shall be effected as follows:
(a) Any Assumed Contract which can be assigned by the Seller to the Purchaser without the consent of the relevant counter-party the (“Counterparty”) shall be transferred by the Seller to the Purchaser on the Closing Date. The Parties shall inform the Counterparty, as necessary, of such assignment.
(b) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2..
(c) Except for the GSK Agreements and the Servier Agreements, if and insofar as the benefit of any Assumed Contract cannot be transferred by the Seller to the Purchaser at Buyer on Closing without the agreement or consent of any Counterparty a third party or a governmental or other authority:
(A) the novation Seller shall use its reasonable endeavours (with the co-operation of the relevant Buyer) to procure that such Assumed Contract Contracts and ancillary rights are novated or assigned as soon as possible;
(B) unless and until any such Assumed Contracts are novated or where such transfer or purported transfer would constitute a breach assigned;
(1) the Seller shall hold the benefit of such Assumed Contract Contracts upon trust for the Buyer absolutely and shall either account to the Buyer immediately or give rise pay to the credit of a specially designated trust bank account maintained separately from all other accounts of the Seller and account to the Buyer for any sums or other benefits received by the Seller in relation thereto as soon as reasonably practicable after receipt;
(2) the Buyer shall have the right and the Seller shall at the election of the Buyer permit the Buyer to terminate perform, in place of the Seller, any such Assumed Contract): o This Agreement shall not constitute an assignment Contract as sub-contractor, agent, licensee or attempted assignment sub-licensee (as appropriate) of the Seller to the extent that such performance may be permitted by any such Assumed Contract; o Beginning on the date hereofand
(3) unless and until any such Assumed Contracts shall be novated or assigned, the Purchaser Seller shall (so far as it lawfully may so do and provided it is reasonable so to do) act under the direction of the Buyer in all matters relating to such orders and contracts for so long as the Seller is required and authorised so to do by the Buyer and shall not without the Buyer's express prior written consent make or effect any compromise, release or waiver or settlement of or otherwise take any action in relation to any such Assumed Contracts or any other rights arising under the same.
(C) In any case where the consent of a third party is required in connection with the novation or assignment of an Assumed Contract and such consent is not forthcoming or is refused, the Seller shall use all its reasonable endeavors (but without endeavours to make such arrangements as may be acceptable to the Buyer for assuring to the Buyer the benefit of such Assumed Contracts, it being understood, however, that Seller shall not be required to incur unreasonable costs pay any fees or make any payments to any Counterparty) other sums of money to obtain such consent or to procure that Consents, except any such Assumed Contract is assigned or novated fees and other sums of money as soon as possible after Closing; o If before the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (x) the Parties shall continue to use their reasonable commercial efforts to obtain such consent as promptly as possible after the Closing Date, have become due and (y) with respect to such contract under the list of Assumed Contracts for which the appropriate consents have not been obtained payable prior to the Closing Date, and until such consents are obtained, the Seller shall, to the extent permissible and lawful under the relevant contract, continue the performance of such contracts on behalf of the Purchaser, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, that such claims do not arise out of a breach by the Seller of the terms and conditions of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory to the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac Business., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract
Appears in 1 contract
Assumed Contracts. The transfer All Seller's rights in, to and under all contracts (including sales contracts), purchase orders and sales orders (hereinafter "Contracts") of Seller as set forth in SCHEDULE 1.1(f), but no other Contracts. To the Assumed Contracts shall be effected as follows:
(a) Any Assumed extent that any Contract for which can be assigned by the Seller assignment to the Purchaser Buyer is provided herein is not assignable without the consent of the relevant counter-party the (“Counterparty”) shall be transferred by the Seller to the Purchaser on the Closing Date. The Parties shall inform the Counterpartyanother party, as necessary, of such assignment.
(b) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2..
(c) Except for the GSK Agreements and the Servier Agreements, if and insofar as the benefit of any Assumed Contract cannot be transferred by the Seller to the Purchaser at Closing without the agreement or consent of any Counterparty or the novation of the relevant Assumed Contract (or where such transfer or purported transfer would constitute a breach of such Assumed Contract or give rise to a right to terminate such Assumed Contract): o This this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Seller and Buyer agree to use their reasonable best efforts (without any requirement on the part of Buyer to pay any money or agree to any material change in the terms of any such Contract) to obtain the consent of such other party to the assignment of any such Assumed Contract; o Beginning on the date hereof, the Purchaser and the Seller shall use Contract to Buyer in all reasonable endeavors (but without being required to incur unreasonable costs or make any payments to any Counterparty) to obtain cases in which such consent is or to procure that may be required for such Assumed Contract is assigned or novated as soon as possible after Closing; o assignment. If before the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (x) the Parties shall continue to use their reasonable commercial efforts to obtain any such consent as promptly as possible after the Closing Date, and (y) with respect to such contract under the list of Assumed Contracts for which the appropriate consents have shall not been obtained prior to the Closing Date, and until such consents are be obtained, Seller agrees to cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the Seller shall, benefits intended to the extent permissible and lawful be assigned to Buyer under the relevant contractContract, continue including enforcement at the performance cost and for the account of such contracts on behalf Buyer of any and all rights of Seller against the other party thereto arising out of the Purchaserbreach or cancellation thereof by such other party or otherwise, in and Buyer undertakes to cooperate with Seller to allow the fulfillment of the Seller's Liabilities under any such Contract, as if such Contract had been assigned to Buyer, until such time as Seller completes its liquidation proceedings (which case it intends to commence following the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contractsClosing), provided, however, that such claims do Buyer shall not arise out of a breach by the Seller bear any liability in excess of the terms liability that Buyer would have borne had Buyer assumed and conditions taken assignment of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, . If and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaserextent that such arrangement cannot be made, and the Parties any such Contract shall notify the Counterparty concerned the effectiveness of such assignment; o If not be deemed to be a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory to the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac BusinessPurchased Asset hereunder., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract
Appears in 1 contract
Assumed Contracts. The transfer If Purchaser delivers a written notice of objection to any Contract prior to the expiration of the Due Diligence Period, then, to the extent a termination right in favor of the applicable Seller is provided for in such Contract, or if such Contract does not prohibit termination, the applicable Seller shall cause its Property Manager to provide a notice of termination within two (2) Business Days of the expiration of the Due Diligence Period to the vendor thereunder with respect to each such Contract to which Purchaser has timely objected (collectively, the “Objectionable Contracts”); provided, however, that (i) Purchaser may not object to any of the Contracts marked as “must assume” on Schedules 3.1(j)-1 through 3.1(j)-4 and shall assume the same at Closing pursuant to the applicable B▇▇▇ of Sale and Assignment; (ii) no Seller shall have any obligation to terminate any Contract which by its terms is not terminable or which cannot be terminated without payment of an express termination fee or penalty, unless Purchaser agrees in writing to pay such termination fee or penalty; (iii) if the termination of any Objectionable Contract cannot be made effective upon the Closing Date (it being agreed and acknowledged that the Sellers shall not be obligated to pay any money to accomplish such termination), then such Objectionable Contract shall be assumed by Purchaser at Closing pursuant to the applicable B▇▇▇ of Sale and Assignment (together with all Assumed Contracts with respect to the applicable Property that do not constitute Objectionable Contracts) for the remaining period of such Contract until its effective date of termination; and (iv) Purchaser shall be effected as follows:
responsible for any termination fees payable with respect to the termination of any Objectionable Contracts. Notwithstanding the foregoing, Purchaser shall not be required or entitled to assume any: (ai) Any Assumed Contract which can that, by its terms, may not be assigned to and assumed by the Seller to the Purchaser without the consent of the relevant counter-party the a third party, unless such third party’s written consent is actually obtained at or before Closing; or (“Counterparty”ii) shall be transferred by the Seller any Contract that is not reflected on Schedules 3.1(j)-1 through 3.1(j)-4. All Contracts that Purchaser is required to the Purchaser on the Closing Date. The Parties shall inform the Counterparty, as necessary, of such assignment.
(b) The Purchaser shall, where required under the terms of the relevant Assumed Contract assume or elects to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations assume hereunder are collectively referred to in Section 1.2..
(c) Except for the GSK Agreements and the Servier Agreements, if and insofar herein as the benefit of any “Assumed Contract cannot be transferred by the Seller to the Purchaser at Closing without the agreement or consent of any Counterparty or the novation of the relevant Assumed Contract (or where such transfer or purported transfer would constitute a breach of such Assumed Contract or give rise to a right to terminate such Assumed Contract): o This Agreement shall not constitute an assignment or attempted assignment of any such Assumed Contract; o Beginning on the date hereof, the Purchaser and the Seller shall use all reasonable endeavors (but without being required to incur unreasonable costs or make any payments to any Counterparty) to obtain such consent or to procure that such Assumed Contract is assigned or novated as soon as possible after Closing; o If before the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (x) the Parties shall continue to use their reasonable commercial efforts to obtain such consent as promptly as possible after the Closing Date, and (y) with respect to such contract under the list of Assumed Contracts for which the appropriate consents have not been obtained prior to the Closing Date, and until such consents are obtained, the Seller shall, to the extent permissible and lawful under the relevant contract, continue the performance of such contracts on behalf of the Purchaser, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, that such claims do not arise out of a breach by the Seller of the terms and conditions of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory to the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac Business., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract”
Appears in 1 contract
Sources: Purchase and Sale Agreement (Bluerock Residential Growth REIT, Inc.)
Assumed Contracts. The transfer schedule of Assumed Contracts attached to this Contract as Exhibit C (copies of which are included in the Delivered Records) constitutes a list of all of the Assumed Contracts shall be effected as follows:
material agreements, leases, or other material contracts affecting the Property and there are no other agreements, leases or other material contracts with respect to the Property that (ai) Any are not terminable without penalty on 30 days' notice or less or (ii) subject Seller or the Property to an aggregate liability in excess of $50,000. All of the foregoing agreements, leases, or other contracts are in full force and effect, and to the best of Seller's knowledge, there is no material default by any party under any Assumed Contract which can be assigned by and no event has occurred that, with the giving of notice or passage of time, or both, would constitute a material default thereunder. Seller has received no notice that any party to any Assumed Contract intends to cancel or terminate its Assumed Contract. Anything in this Contract to the Purchaser contrary notwithstanding, Seller shall not assign any Assumed contract or any claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of the relevant counter-a third party the (“Counterparty”) shall be transferred by the Seller to the Purchaser on the Closing Date. The Parties shall inform the Counterpartythereto, as necessary, of such assignment.
(b) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2..
(c) Except for the GSK Agreements and the Servier Agreements, if and insofar as the benefit of any Assumed Contract cannot be transferred by the Seller to the Purchaser at Closing without the agreement or consent of any Counterparty or the novation of the relevant Assumed Contract (or where such transfer or purported transfer would constitute a breach or other contravention thereof or in any way adversely affect the rights of Buyer or Seller thereunder. Seller and Buyer will use reasonable best efforts (but without any payment of money by Seller or Buyer) to obtain the consent of the other parties to any such Assumed Contract or give rise any claim or right or any benefit arising thereunder for the assignment thereof to a right to terminate Buyer as Buyer may reasonably request. If such Assumed Contract): o This Agreement shall consent is not constitute obtained, or if an assignment or attempted assignment of any thereof would be ineffective or that Buyer would not in fact receive all such Assumed Contract; o Beginning on rights, Seller and Buyer will cooperate in a mutually agreeable arrangement under which Buyer would obtain the date hereofbenefits and assume the obligations thereunder in accordance with this Agreement, the Purchaser and the including sub- contracting, sub-licensing, or sub-leasing to buyer, or under which Seller shall use all reasonable endeavors (but without being required to incur unreasonable costs or make any payments to any Counterparty) to obtain such consent or to procure that such Assumed Contract is assigned or novated as soon as possible after Closing; o If before the Closing Date no consent can be obtained would enforce for the transfer benefit of certain Assumed Contracts (x) the Parties shall continue to use their reasonable commercial efforts to obtain such consent as promptly as possible after the Closing DateBuyer, with Buyer assuming Seller's obligations, any and (y) with respect to such contract under the list all rights of Assumed Contracts for which the appropriate consents have not been obtained prior to the Closing Date, and until such consents are obtained, the Seller shall, to the extent permissible and lawful under the relevant contract, continue the performance of such contracts on behalf of the Purchaser, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, that such claims do not arise out of a breach by the Seller of the terms and conditions of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory to the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac Businessthird party thereto., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract
Appears in 1 contract
Sources: Contract for Purchase and Sale of Hotels (Itt Corp /Nv/)
Assumed Contracts. The transfer customer lists; supplier lists; operating data and plans; sales data; target lists; sampling lists; physician lists; volume prescriber lists; in each case whether issued, pending, or in draft form, and whether or not required to be kept or maintained under any Law, together with all internal and external correspondence, historical records and copies of all of the Assumed Contracts foregoing, whether in paper or electronic form and wherever located, in and outside the United States; provided that "Books and Records" shall be effected as follows:
not include any of the foregoing items (ai) Any Assumed Contract which can be assigned by the Seller to the Purchaser without the consent extent that any applicable Law prohibits their transfer, (ii) that were received from third parties in connection with their proposed acquisition of the relevant counter-party Purchased Assets, the Products or Business or prepared by Seller and its Affiliates in connection with such proposals, (“Counterparty”iii) shall be transferred that were specifically prepared by Seller for the Seller negotiation of this Agreement, and (iv) to the Purchaser on extent such items are included in the Closing Datedefinition of "Marketing Materials" or "Study Materials". The Parties shall inform the Counterparty, as necessary, of such assignment.
acknowledge and agree that (bi) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2..
(c) Except for the GSK Agreements and the Servier Agreements, if and insofar as the benefit of any Assumed Contract cannot be transferred by the Seller to the Purchaser at Closing without the agreement or consent of any Counterparty or the novation of the relevant Assumed Contract (or where such transfer or purported transfer would constitute a breach of such Assumed Contract or give rise to a right to terminate such Assumed Contract): o This Agreement shall not constitute an assignment or attempted assignment of any such Assumed Contract; o Beginning on the date hereof, the Purchaser and the Seller shall use all reasonable endeavors (but without being required to incur unreasonable costs or make any payments to any Counterparty) to obtain such consent or to procure that such Assumed Contract is assigned or novated as soon as possible after Closing; o If before the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (x) the Parties shall continue to use their reasonable commercial efforts to obtain such consent as promptly as possible after the Closing Date, and (y) with respect to such contract under the list of Assumed Contracts for which the appropriate consents have not been obtained prior to the Closing Date, and until such consents are obtained, the Seller shall, to the extent permissible that any such Books and lawful Records contain information that relates to any product other than the Product or to any business or operations of Seller and its Affiliates other than the Business, such Books and Records shall be redacted to delete such information and (ii) to the extent that any such Books and Records contain information necessary to permit Seller and its Affiliates to perform their obligations under the relevant contractInterim Packaging Agreement, continue Seller and its Affiliates shall not be required to deliver such Books and Records to Buyer until the Interim Packaging Agreement has expired or been terminated and Seller and its Affiliates shall have the right to use such Books and Records in connection with the performance of their obligations under the Interim Packaging Agreement; provided that Buyer and its Affiliates will be provided with unrestricted access during normal business hours to any and all such contracts on behalf of the Purchaser, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, that such claims do not arise out of a breach by the Seller of the terms temporarily retained Books and conditions of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory to the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac BusinessRecords., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract
Appears in 1 contract
Sources: Asset Purchase Agreement (First Horizon Pharmaceutical Corp)
Assumed Contracts. The transfer 6.1 Following Completion and subject to the provisions of Clause 6.2 with effect from the Completion Date:
6.1.1 the Council will use reasonable endeavours to assign or hold to the order or procure the assignment to the order of the Trust all those of the Assumed Contracts which do not require the consent of the contracting party to the assignment to the Trust and the Trust will carry out and perform for its own account all of the Council's obligations under each of the Assumed Contracts in accordance with the terms of the Assumed Contract;
6.1.2 the Trust shall be effected as follows:indemnify and keep indemnified the Council from and against all Losses suffered or incurred by the Council arising out of any act or omission by the Trust after the Completion Date in respect of its obligations under the terms of Clause 6.1.1;
(a) Any 6.1.3 the Council shall indemnify and keep indemnified the Trust from and against all Losses suffered or incurred by the Trust arising out of an act or omission by the Council prior to the Completion Date in relation to any Assumed Contract which can be assigned by the Seller to the Purchaser Trust pursuant to the terms of Clause 6.
6.2 The following provisions shall apply to each Assumed Contract in respect of which no such assignment is permitted without the consent of the relevant counter-a third party the (“Counterparty”) or requires novation or cannot be effectively assigned and shall be transferred by applied until the Seller to the Purchaser on the Closing Date. The Parties shall inform the Counterparty, as necessary, of such assignment.
(b) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the is either assigned or novated:
6.2.1 nothing in this Agreement shall constitute an assignment or an attempted assignment of such Assumed Contract, enter into a direct covenant with Contract if the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2..
(c) Except for the GSK Agreements and the Servier Agreements, if and insofar as the benefit of any Assumed Contract cannot be transferred by the Seller to the Purchaser at Closing without the agreement assignment or consent of any Counterparty or the novation of the relevant Assumed Contract (or where such transfer or purported transfer attempted assignment would constitute a breach of the Assumed Contract;
6.2.2 the Council shall with effect from the Completion Date hold the benefit of such Assumed Contract in trust for the Trust absolutely and the Trust shall as between the Council and the Trust be entitled to exercise all rights there under and receive all such benefits;
6.2.3 the Council shall make available to the Trust all rights against third parties (including the other contracting party) to which the Trust would have been entitled had the Assumed Contract in question been assigned or give rise novated to the Trust with effect from the Completion Date and for the avoidance of doubt shall provide access to all relevant books documents and other information in relation to the Assumed Contracts as the Trust may reasonably require from time to time insofar as this does not constitute a breach of the Assumed Contract;
6.2.4 the Trust shall (whether or not as the agent as the sub-contractor of the Council or in any other capacity reasonably open to it) perform all the obligations of the Council under the Assumed Contract to the extent that such performance does not constitute a breach of the Assumed Contract;
6.2.5 the Trust shall indemnify and keep indemnified the Council from and against all Losses incurred by the Council arising out of or things done by the Trust after the Completion Date in the performance of its obligations under this Clause 6.2;
6.2.6 the Council shall indemnify and keep indemnified the Trust from and against all Losses suffered or incurred by the Trust arising from an act or omission by the Council in relation to a right contract described in this Clause 6.2 prior to terminate such Assumed Contract): o This Agreement shall not constitute an assignment or attempted assignment the Completion Date.
6.3 If in the case of any such Assumed Contract; o Beginning on the date hereof, the Purchaser and the Seller shall use all reasonable endeavors (but without being required Contract which requires consent to incur unreasonable costs assign or make any payments to any Counterparty) to obtain which requires novation such consent or to procure that such Assumed Contract novation is assigned refused or novated as soon as possible after Closing; o If before the Closing Date no consent can be otherwise not obtained for the transfer of certain Assumed Contracts (x) the Parties shall continue to use their reasonable commercial efforts to obtain such consent as promptly as possible after the Closing Date, and (y) with respect to such contract under the list of Assumed Contracts for which the appropriate consents have not been obtained prior to the Closing Date, and until such consents are obtained, the Seller shall, to the extent permissible and lawful under the relevant contract, continue the performance of such contracts on behalf of the Purchaser, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, that such claims do not arise out of a breach by the Seller of the terms and conditions of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory to the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller Trust (in its absolute discretion) within one hundred and the Purchaser shall treat the contract as excluded from the sale and purchase twenty (120) Business Days of the Pessac BusinessCompletion Date the relevant Assumed Contract shall be deemed to be a Retained Contract and/or may be terminated by the Council., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract
Appears in 1 contract
Sources: Business Transfer Agreement
Assumed Contracts. The transfer (a) Effective as of the Closing Effective Time, Purchaser assumes the Assumed Contracts shall be effected as follows:
(a) Any and the Assumed Contract which can be assigned by the Seller Liabilities and Obligations related to the Purchaser without the consent of the relevant counter-party the (“Counterparty”) shall be transferred by the Seller to the Purchaser on the Closing Date. The Parties shall inform the Counterparty, as necessary, of such assignmentAssumed Contracts.
(b) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2..
(c) Except for the GSK Agreements and the Servier Agreements, if and insofar as the benefit of If any Assumed Contract canContracts included in the Purchased Assets may not be transferred by the Seller to the Purchaser at Closing without the agreement Consent of another Person, or consent of any Counterparty or the novation of the relevant Assumed Contract (or where if such transfer or purported transfer attempted transfer, absent the Consent of the Person, would constitute a breach thereof or a violation of any Law or Governmental Authorization, or cause or permit the loss or waiver of any right or entitlement thereunder, or cause or permit the termination thereof or any change in the terms thereof (each, a "Nonassignable Contract"), then Seller shall, at its own expense (including payment of any fees and costs imposed in connection with the request for, or as a condition to the issuance of, any such Assumed Consent) and without any amendments to or changes in the material terms of (or any of the respective material rights and obligations of the Parties under) any Nonassignable Contract (except as expressly permitted or give rise required under this Agreement or consented to by Purchaser in writing), use commercially reasonable efforts to obtain all such Consents before the Closing. If any Consent to a right to terminate such Assumed Contract): o This Agreement shall not constitute an assignment or attempted assignment of any such Assumed Contract; o Beginning on the date hereof, the Purchaser and the Seller shall use all reasonable endeavors (but without being required to incur unreasonable costs or make any payments to any Counterparty) to obtain such consent or to procure that such Assumed Nonassignable Contract is assigned or novated as soon as possible after Closing; o If not obtained before the Closing, then Seller shall, after the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (xi) the Parties shall continue to use their commercially reasonable commercial efforts to obtain such consent Consent as promptly soon as reasonably possible after the Closing Dateat Seller's sole cost and expense (including payment of any fees and costs imposed in connection with the request for, or as a condition to the issuance of, any such Consent) and without any amendments to or changes in the material terms of (or any of the respective material rights and obligations of the parties under) any Nonassignable Contract, and cooperate with Purchaser in endeavoring to obtain, such Consent at no out-of-pocket cost or expense to Purchaser; and (yii) if and for so long after the Closing as such Consent has not been obtained, cooperate with Purchaser in any commercially reasonable arrangement proposed by Purchaser that is designed to provide for Purchaser the material benefits (including all material economic benefits), claims, and rights under any such Nonassignable Contract, including the enforcement for the benefit of Purchaser of any and all rights of Seller against any other party thereto. In obtaining any Consent with respect to such contract under the list of Assumed Contracts for which the appropriate consents have any Nonassignable Contract, Seller will not been obtained prior agree to the Closing Date, and until such consents are obtained, the Seller shall, or permit any material amendments or material changes to the extent permissible and lawful under the relevant contract, continue the performance of such contracts on behalf of the Purchaser, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, that such claims do not arise out of a breach by the Seller any of the terms of (or any of the respective rights and conditions obligations of the Parties under) any Nonassignable Contract without the consent of Purchaser, such Contractsconsent not to be unreasonably withheld, in which case conditioned or delayed. Notwithstanding the foregoing, only the Consent Required For Closing shall be a condition to the Closing, provided that Seller shall then hold use commercially reasonable efforts to obtain all Consents to Nonassignable Contracts before the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breachClosing, and (z) once the consent is obtained, the provided further that Seller shall transfer such contracts be and the related revenues and charges from remain obligated to use commercially reasonable efforts to obtain after the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of as provided in this Section 2.3(b) any such assignment; o If a Counterparty shall give the Seller or the Purchaser notice Consents that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory to obtained before the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac BusinessClosing., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract
Appears in 1 contract
Assumed Contracts. The transfer From and after the Closing, Buyer shall assume and perform Seller's obligations to be performed after the Closing Date under the following Contracts: (i) all Routine Contracts and (ii) those of the Assumed Contracts shall be effected as follows:
listed in Sections (b), (d) and (i) of Schedule 4.5 hereto; provided, however, that (a) Any Assumed in no event shall Buyer assume any liability or obligation under any Contract which can be assigned (i) required by the Seller terms thereof to the Purchaser without the consent of the relevant counter-party the (“Counterparty”) shall be transferred by the Seller to the Purchaser discharged on the Closing Date. The Parties shall inform the Counterparty, as necessary, of such assignment.
(b) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2..
(c) Except for the GSK Agreements and the Servier Agreements, if and insofar as the benefit of any Assumed Contract cannot be transferred by the Seller to the Purchaser at Closing without the agreement or consent of any Counterparty or the novation of the relevant Assumed Contract (or where such transfer or purported transfer would constitute a breach of such Assumed Contract or give rise to a right to terminate such Assumed Contract): o This Agreement shall not constitute an assignment or attempted assignment of any such Assumed Contract; o Beginning on the date hereof, the Purchaser and the Seller shall use all reasonable endeavors (but without being required to incur unreasonable costs or make any payments to any Counterparty) to obtain such consent or to procure that such Assumed Contract is assigned or novated as soon as possible after Closing; o If before the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (x) the Parties shall continue to use their reasonable commercial efforts to obtain such consent as promptly as possible after the Closing Date, and (y) with respect to such contract under the list of Assumed Contracts for which the appropriate consents have not been obtained prior to the Closing Date, and until such consents are obtained(ii) the existence of which constitutes a breach of any representation or warranty of Seller contained in or made pursuant to this Agreement, the (iii) incurred by Seller shall, to the extent permissible and lawful under the relevant contract, continue the performance of such contracts on behalf in violation of the Purchaserprovisions of this Agreement, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies(iv) concerned against the Seller with regard to such contracts, provided, however, that such claims do not arise arising out of a breach or default by Seller on or prior to the Seller Closing Date (including any event that with the passage of time or the giving of notice, or both, would become a breach or default) under any Contract, or (v) existing as of the terms Closing Date that, under U.S. GAAP, should have been accrued or reserved for on a balance sheet or in the notes thereto as a liability or obligation if and conditions of such Contracts, in which case to the Seller shall then hold extent not accrued or reserved for on the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breachClosing Balance Sheet, and (zb) once Buyer shall have the right not to assume any Contract if either Seller or another party thereto is in breach thereof or default thereunder (including any event that with the passage of time or the giving of notice, or both, would become a breach or default) as of the Closing or to the assumption of which any necessary consent is not received prior to the Closing. Contracts to be assumed by Buyer hereunder (and, as of any time prior to the Closing, without giving effect to clause (b) of the preceding sentence) are referred to as "Assumed Contracts." If any Assumed Contract for which assignment to Buyer is provided herein is not assignable without the consent of another party, such consent is obtainednot obtained at or prior to the Closing, then such Assumed Contract shall not be assigned to and assumed by Buyer at the Closing. Instead, upon Buyer's request, Seller shall transfer such contracts cooperate in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned to Buyer under the relevant Assumed Contract, including enforcement of any and all rights of Seller against the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation other party thereto arising out of the relevant contract breach or will only give cancellation thereof by such consent subject to terms which are not satisfactory to the Purchaser other party or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac Businessotherwise., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract
Appears in 1 contract
Assumed Contracts. The transfer (a) Effective as of the Effective Time, Purchaser assumes the Assumed Contracts shall be effected as follows:
(a) Any and the Assumed Contract which can be assigned by the Seller Liabilities and Obligations related to the Purchaser without Assumed Contracts that arise on or after the consent Closing Date and that relate to the ownership of the relevant counter-party Purchased Assets and operation of the (“Counterparty”) shall be transferred by the Seller to the Purchaser Business on and after the Closing Date. The Parties shall inform the Counterparty, as necessary, of such assignment.
(b) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to in Section 1.2..
(c) Except for the GSK Agreements and the Servier Agreements, if and insofar as the benefit of If any Assumed Contract canContracts included in the Purchased Assets may not be transferred by the Seller to the Purchaser at Closing without the agreement Consent of another Person, or consent of any Counterparty or the novation of the relevant Assumed Contract (or where if such transfer or purported transfer attempted transfer, absent the Consent of the Person, would constitute a breach thereof or a violation of any Law or Governmental Authorization, or cause or permit the loss or waiver of any right or entitlement thereunder, or cause or permit the termination thereof or any change in the terms thereof (each, a “Nonassignable Contract”), then Seller shall, at its own expense (including payment of any fees and costs imposed in connection with the request for, or as a condition to the issuance of, any such Assumed Consent) and without any amendments to or changes in the terms of (or any of the respective rights and obligations of the Parties under) any Nonassignable Contract (except as expressly permitted or give rise required under this Agreement or consented to by Purchaser in writing), obtain all such Consents before the Closing. If any Consent to a right to terminate such Assumed Contract): o This Agreement shall Nonassignable Contract is not constitute an assignment or attempted assignment of any such Assumed Contract; o Beginning on obtained before the date hereofClosing, then Seller shall, after the Purchaser and the Seller shall use all reasonable endeavors Closing (but without being required to incur unreasonable costs or make any payments to any Counterpartyi) to obtain such consent or to procure that such Assumed Contract is assigned or novated Consent as soon as possible after Closing; o If before the Closing Date at Seller’s sole cost and expense (including payment of any fees and costs imposed in connection with the request for, or as a condition to the issuance of, any such Consent) and without any amendments to or changes in the terms of (or any of the respective rights and obligations of the parties under) any Nonassignable Contract, and cooperate with Purchaser in endeavoring to obtain, such Consent at no consent can be obtained out-of-pocket cost or expense to Purchaser; and (ii) if and for so long after the Closing as such Consent has not been obtained, cooperate with Purchaser in any arrangement proposed by Purchaser in good faith that is designed to provide for Purchaser the material benefits (including all economic benefits), claims, and rights under any such Nonassignable Contract, including the enforcement for the transfer benefit of certain Assumed Contracts Purchaser of any and all rights of Seller against any other party thereto. In obtaining any Consent with respect to any Nonassignable Contract, Seller will not agree to or permit any amendments or changes to any of the terms of (x) or any of the respective rights and obligations of the Parties under) any Nonassignable Contract without the consent of Purchaser. Notwithstanding the foregoing, only the Consent Required For Closing shall continue be a condition to the Closing, provided that Seller shall use their reasonable commercial commercially reasonably efforts to obtain such consent as promptly as possible all Consents to Nonassignable Contracts before the Closing, and provided further that Seller shall be and remain obligated to obtain after the Closing Date, and (yas provided in this Section 2.4(b) with respect to any such contract under the list of Assumed Contracts for which the appropriate consents have not been obtained prior to the Closing Date, and until such consents are obtained, the Seller shall, to the extent permissible and lawful under the relevant contract, continue the performance of such contracts on behalf of the Purchaser, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, Consents that such claims do not arise out of a breach by the Seller of the terms and conditions of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory to obtained before the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac BusinessClosing., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract
Appears in 1 contract
Assumed Contracts. The transfer Sellers shall not reject under Section 365 of the Bankruptcy Code, waive or release any of their rights under, amend or otherwise modify any of the Assumed Contracts without the prior written consent of Purchaser, which consent shall not be unreasonably withheld. Sellers shall obtain an order or orders (which may include the Sale Approval Order) in a form reasonably satisfactory to Purchaser, among other things (i) approving the assumption and assignment of the Assumed Contracts to Purchaser pursuant to, and subject to the provisions of, Section 365 of the Bankruptcy Code, (ii) providing that all defaults of Purchaser under the Assumed Contracts arising or accruing prior to the date of the Closing (without giving effect to any acceleration clauses or any default provisions in such contracts of a kind specified in Section 365(b)(2) of the Bankruptcy Code) have been cured or will be promptly cured by Purchaser so that Sellers shall have no liability or obligation with respect to any default or obligation arising or accruing prior to the date of the Closing or in respect of any cure obligations, except as may otherwise be specifically agreed as set forth in this Agreement, such Assumed Contracts and cure amounts are set forth on SCHEDULE 5.5(e), and (iii) providing that the Assumed Contracts shall be effected as follows:
(a) Any Assumed Contract which can be assigned by the Seller to the Purchaser without the consent of the relevant counter-party the (“Counterparty”) shall be transferred by the Seller to the Purchaser on the Closing Date. The Parties shall inform the Counterpartyto, as necessary, of such assignment.
(b) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the assignment of such Assumed Contract, enter into a direct covenant with the Counterparty to carry out, perform and discharge the obligations referred to remain in Section 1.2..
(c) Except full force and effect for the GSK Agreements and the Servier Agreementsbenefit of, if and insofar as the benefit of Purchaser, notwithstanding any Assumed Contract cannot be transferred by the Seller to the Purchaser at Closing without the agreement or consent of provision in any Counterparty or the novation of the relevant Assumed Contract (or where such transfer or purported transfer would constitute a breach of such Assumed Contract or give rise to a right to terminate in applicable Law (including those described in Sections 365(b)(2) and (f) of the Bankruptcy Code) that prohibits, restricts, or limits in any way such Assumed Contract): o This Agreement shall not constitute an assignment or attempted assignment of any such Assumed Contract; o Beginning on the date hereof, the Purchaser and the Seller shall use all reasonable endeavors (but without being required to incur unreasonable costs or make any payments to any Counterparty) to obtain such consent or to procure that such Assumed Contract is assigned or novated as soon as possible after Closing; o If before the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (x) the Parties shall continue to use their reasonable commercial efforts to obtain such consent as promptly as possible after the Closing Date, and (y) with respect to such contract under the list of Assumed Contracts for which the appropriate consents have not been obtained prior to the Closing Date, and until such consents are obtained, the Seller shall, to the extent permissible and lawful under the relevant contract, continue the performance of such contracts on behalf of the Purchaser, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, that such claims do not arise out of a breach by the Seller of the terms and conditions of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory to the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac Businesstransfer., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract
Appears in 1 contract
Assumed Contracts. The transfer (i) Each Assumed Liability was entered into at arms’ length in the ordinary course and consistent with past practices of Sento EU, (ii) Sento EU has performed and is performing in all material respects all obligations required to be performed by it under Assumed Liabilities, and (iii) neither Sento EU nor, to Seller’s Knowledge, any other party thereto is in material default under any Assumed Liability. Sento EU has not received any notice of default under any Assumed Liability, nor has any event occurred which with notice or lapse of time or both which would constitute a default by Sento EU thereunder, or would permit modification, cancellation, acceleration or termination of any Assumed Liability. Each of the Assumed Contracts shall be effected as follows:
(a) Any Assumed Contract which can be assigned by the Seller Liabilities is in full force and effect and to the Purchaser without Seller’s Knowledge, is valid and binding upon and enforceable against the parties thereto, except as such enforceability may be limited by applicable legal requirements relating to bankruptcy, insolvency, reorganization, moratorium or other similar legal requirements relating to or affecting creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). No consent or approval of or by any person that has not already been obtained is to Seller’s Knowledge required in order that the Assumed Liabilities continue in full force and effect following the consummation of the relevant counter-party the (“Counterparty”) shall be transferred by the Seller transactions contemplated hereby, and to the Purchaser on the Closing Date. The Parties shall inform the CounterpartySeller’s Knowledge, as necessary, of such assignment.
(b) The Purchaser shall, where required under the terms of the relevant Assumed Contract to perfect the assignment of no such Assumed ContractLiability includes any provision, enter into a direct covenant with the Counterparty effect of which may be to carry out, perform and discharge the obligations referred to in Section 1.2..
terminate (c) Except for the GSK Agreements and the Servier Agreements, if and insofar as the benefit of any Assumed Contract cannot be transferred by the Seller to the Purchaser at Closing without the agreement or consent of any Counterparty or the novation of the relevant Assumed Contract (or where such transfer or purported transfer would constitute a breach of such Assumed Contract or give rise to a right to terminate of termination under) such Assumed Contract): o This Agreement shall not constitute an assignment Liability, to give rise to, enlarge, or attempted assignment accelerate any obligations of any such Assumed Contract; o Beginning on the date hereofSento EU thereunder, the Purchaser and the Seller shall use all reasonable endeavors (but without being required or to incur unreasonable costs or make any payments give additional rights to any Counterparty) to obtain such consent other person, upon or to procure that such by reason of the consummation of the transactions contemplated hereby. True, complete and correct copies of all Assumed Contract is assigned or novated as soon as possible after Closing; o If before the Closing Date no consent can be obtained for the transfer of certain Assumed Contracts (x) the Parties shall continue to use their reasonable commercial efforts to obtain such consent as promptly as possible after the Closing Date, and (y) with respect to such contract under the list of Assumed Contracts for which the appropriate consents Liabilities have not heretofore been obtained prior delivered to the Closing Date, and until such consents Buyer. There are obtained, the Seller shall, to the extent permissible and lawful Seller’s Knowledge, no disputes under the relevant contract, continue the performance of such contracts on behalf of the Purchaser, in which case the Purchaser shall hold the Seller harmless from all claims made by the Counterparty(ies) concerned against the Seller with regard to such contracts, provided, however, that such claims do not arise out of a breach by the Seller of the terms and conditions of such Contracts, in which case the Seller shall then hold the Purchaser harmless from all claims made against the Purchaser by the Counterparty(ies) concerned by such breach, and (z) once the consent is obtained, the Seller shall transfer such contracts and the related revenues and charges from the Closing date to the Purchaser, and the Parties shall notify the Counterparty concerned the effectiveness of such assignment; o If a Counterparty shall give the Seller or the Purchaser notice that it will not consent to the assignment or novation of the relevant contract or will only give such consent subject to terms which are not satisfactory to the Purchaser or terminate such contract or shall make any other claim on the grounds that the purported transfer of such contract constitutes a breach of, or entitles the Counterparty to terminate, that contract, then the Seller and the Purchaser shall treat the contract as excluded from the sale and purchase of the Pessac BusinessAssumed Liability., and neither the Seller nor the Purchaser shall have any further obligation to the other with regard to the transfer to the Purchaser of that contract
Appears in 1 contract