Certain Consents. Subject to the other provisions of this Agreement, including Section 5.03, from and after the date hereof until the earlier of the Closing and the termination of this Agreement in accordance with the terms and conditions of Article 9, each party shall, and shall cause its Affiliates to, cooperate with the other party and its Affiliates in good faith and use its and their respective commercially reasonable efforts to (a) consult with such other party and its Affiliates in good faith to determine whether any Third Party Approval (including any third party notices) is required in connection with the consummation of the transactions contemplated by this Agreement and the other Transaction Agreements, (b) take such actions and furnish such information (subject to the terms and conditions set forth in Section 5.04) as the parties, following consultation with one another in accordance with the preceding clause (a), mutually reasonably determine may be required in connection therewith, and (c) obtain at the earliest practicable date all Third Party Approvals, and send all third party notices, in each case, as set forth on Section 5.21 of the Seller Disclosure Schedule or as required for either party to the Transition Services Agreement to perform its obligations thereunder (and, to the extent that a third party requires a party that is a “Provider” of a service under the Transition Services Agreement to make any payment to obtain such Third Party Approval (any such payment, a “Consent Fee”), each party shall be responsible for 50% of such Consent Fee); provided that neither Seller nor any of its Affiliates (including the Companies) shall be required to, and without the prior written consent of Buyer permitted (other than with respect to Liabilities satisfied and discharged in full prior to the Closing) to, incur any Liabilities, make any payment to any Person, commence, defend or participate in any litigation, provide any financial or other accommodation or concession or agree to any amendment, condition or obligation (including any amendment to any existing condition or obligation) in order to obtain any Third Party Approval necessary or desirable to consummate the transactions contemplated by this Agreement and the other Transaction Agreements or otherwise comply with their obligations under this Section 5.21, except that each party shall bear 50% of any Consent Fees arising from Third Party Approvals needed for either party to the Transition Services Agreement to perform its obligations thereunder (which Third Party Approvals Seller will, with reasonable cooperation from Buyer, use commercially reasonable efforts to obtain prior to the Closing, subject to the allocation of Consent Fees as set forth in this proviso). Notwithstanding anything to the contrary in this Agreement, it is acknowledged and agreed by each of Buyer and Seller that, obtaining any Third Party Approval is not a condition to any party’s obligations to effect the Closing in accordance herewith.
Appears in 1 contract
Certain Consents. Subject to the other provisions of this Agreement, including Section 5.03, from and 5.4.1 As soon as reasonably practicable after the date hereof until the earlier of the Closing hereof, Purchaser and the termination of this Agreement in accordance with the terms and conditions of Article 9, each party shall, and Seller shall cause its Affiliates to, cooperate with the other party and its Affiliates in good faith and use its and their respective commercially reasonable efforts endeavors to (a) consult with such other party and its Affiliates in good faith to determine whether any Third Party Approval (including any third party notices) is required discuss the list of Consents that are required, necessary or advisable in connection with the consummation of Transactions or the transactions contemplated by this Agreement and the other Transaction Agreements, (b) take such actions and furnish such information (subject Reorganization pursuant to any Contract that is material to the terms and conditions set forth in Section 5.04) as the parties, following consultation with one another in accordance with the preceding clause (a), mutually reasonably determine may be required in connection therewith, and (c) obtain at the earliest practicable date all Third Party Approvals, and send all third party notices, in each case, as set forth on Section 5.21 Business to which any member of the Seller Disclosure Schedule Group or as required for either the Target Group is a party or by which any portion of the Business is bound (collectively, the “Key Contracts”). Prior to the Transition Services Agreement to perform its obligations thereunder (andClosing, to the extent that a third party requires a party that is a “Provider” of a service under the Transition Services Agreement requested by Purchaser in writing, each Party hereto agrees to make any payment cooperate and use commercially reasonable endeavors to obtain such Third Party Approval (any such paymentthe Consents identified by the parties and as requested by Purchaser.
5.4.2 Notwithstanding anything to the contrary contained in this Agreement, a “Consent Fee”), each party shall be responsible for 50% of such Consent Fee); provided that neither Seller nor any of its Affiliates (including the Companies) shall Subsidiaries shall:
5.4.2.1 be required toto expend any money, and without the prior written consent of Buyer permitted (other than with respect to Liabilities satisfied and discharged in full prior to the Closing) to, incur any Liabilities, make any payment to any Person, commence, defend commence or participate in any litigationProceeding, provide incur liabilities or offer or grant any accommodation (financial or other accommodation otherwise) to any third party to obtain any Consent described in this Clause 5.4;
5.4.2.2 have any obligation pursuant to this Clause 5.4 with respect to any Key Vendor Contract that is governed by the Transition Services Agreement;
5.4.2.3 have any obligations to obtain or concession or agree with respect to obtaining any Consent (except as expressly set forth in this Clause 5.4); or
5.4.2.4 be required to negotiate with the applicable third party any amendment, condition modification, change, supplement or obligation (including any amendment waiver to any existing condition provision of any Key Contract or obligation) any statement of work, service or work order or similar document attached to, or entered into pursuant to, such Key Contract.
5.4.3 No warranty or covenant of Seller contained in order to obtain any Third Party Approval necessary or desirable to consummate the transactions contemplated by this Agreement and or the other Transaction Agreements shall be breached or otherwise comply with their obligations under deemed breached, and no condition shall be deemed not satisfied, based on:
5.4.3.1 the failure to obtain any Consent described in this Section 5.21, except that each party shall bear 50% Clause 5.4; or
5.4.3.2 any Proceeding commenced or threatened by or on behalf of any Consent Fees Person arising out of, relating to or resulting from Third Party Approvals needed for either party to (x) the Transition Services Agreement to perform its obligations thereunder (which Third Party Approvals Seller will, with reasonable cooperation from Buyer, use commercially reasonable efforts failure to obtain prior to the Closing, subject to the allocation of any Consent Fees as set forth described in this proviso). Notwithstanding anything Clause 5.4 or (y) any arrangement between Seller or Purchaser entered into pursuant to the contrary in this Agreement, it is acknowledged and agreed by each of Buyer and Seller that, obtaining any Third Party Approval is not a condition to any party’s obligations to effect the Closing in accordance herewithClause 5.4.
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Sources: Agreement for the Sale and Purchase of Shares and Assets (Jabil Inc)
Certain Consents. Subject to the other provisions of this Agreement, including Section 5.03, from and after the date hereof until the earlier of the Closing and the termination of this Agreement in accordance with the terms and conditions of Article 9, each party shall, and shall cause its Affiliates to, cooperate with the other party and its Affiliates in good faith and use its and their respective commercially reasonable efforts to (a) consult with such other party and its Affiliates in good faith to determine whether any Third Party Approval (including any third party notices) is required in connection with the consummation of the transactions contemplated by this Agreement and the other Transaction Agreements, (b) take such actions and furnish such information (subject to the terms and conditions set forth in Section 5.04) as the parties, following consultation with one another in accordance with the preceding clause (a), mutually reasonably determine may be required in connection therewith, and (c) obtain at the earliest practicable date all Third Party Approvals, and send all third party notices, in each case, as set forth on Section 5.21 of the Seller Disclosure Schedule or as required for either party to the Transition Services Agreement to perform its obligations thereunder (and, to the extent that a third party requires a party that is a “Provider” of a service under the Transition Services Agreement to make any payment to obtain such Third Party Approval (any such payment, a “Consent Fee”), each party shall be responsible for 50% of such Consent Fee); provided that neither Seller nor any of its Affiliates (including the Companies) shall be required to, and without the prior written consent of Buyer permitted (other than with respect to Liabilities satisfied and discharged in full prior to the Closing) to, incur any Liabilities, make any payment to any Person, commence, defend or participate in any litigation, provide any financial or other accommodation or concession or agree to any amendment, condition or obligation (including any amendment to any existing condition or obligation) in order to obtain any Third Party Approval necessary or desirable to consummate the transactions contemplated by this Agreement and the other Transaction Agreements or otherwise comply with their obligations under this Section 5.21, except that each party shall bear 50% of any Consent Fees arising from Third Party Approvals needed for either party to the Transition Services Agreement to perform its obligations thereunder (which Third Party Approvals Seller will, with reasonable cooperation from Buyer, use commercially reasonable efforts to obtain prior to the Closing, subject to the allocation of Consent Fees as set forth in this proviso). Notwithstanding anything to the contrary in this ---------------- Agreement, it is acknowledged and agreed by each this Agreement shall not constitute an agreement to assign or transfer any interest in any customer purchase order, Contract, License, Permit or other instrument or arrangement or any claim, right or benefit, or an agreement to assume any liability, obligation or commitment arising thereunder or resulting therefrom, if an assignment or transfer or an attempt to make such an assignment or transfer without the Consent of a third party would constitute a breach or violation thereof or a breach of Law, or affect adversely the rights of Buyer or Seller thereunder and Seller that, obtaining any Third Party Approval is such Consent cannot a condition by Law or despite all necessary and appropriate efforts (other than the payment of money to any party’s obligations third party or the amendment of the terms of such Contract, License, Permit or other instrument or arrangement in any material respect) be obtained; and any transfer or assignment to, or any assumption by, Buyer of any interest in, or liability, obligation or commitment under, any such customer purchase order, Contract, License, Permit or other instrument or arrangement that requires the Consent of a third party shall be made subject to such Consent being obtained. Prior to the Closing, each Party (as hereinafter defined) shall use all reasonable efforts and cooperate in obtaining all Consents necessary to effect the transfer of all such customer purchase orders, Contracts, Licenses, Permits and other instruments and arrangements as contemplated hereby; provided, however, that -------- ------- neither Party shall be required to pay or commit to pay any amount to (or incur any obligation in favor of) any person from whom any such Consent may be required (other than nominal governmental filing fees payable to any Governmental Authority). In the event any such Consent is not obtained on or prior to the Closing, the Parties shall cooperate, for a period of one year following the Closing Date, in accordance herewithany lawful and reasonable arrangement to provide that Buyer shall receive the benefits under any customer purchase orders, Contracts, Licenses, Permits or other instrument or arrangement not assigned and transferred at the Closing by reason of the failure to obtain such Consent (a "Non-Transferred Instrument"), including, if necessary, at the request and expense of Buyer, enforcing performance by any third party of its obligations in respect of such Non-Transferred Instrument; provided, however, that Seller shall -------- ------- bear the expense of such enforcement to the extent it relates to Seller's failure to obtain such Consent prior to the Closing or to the extent such expense would have been the responsibility of Seller had the Consent been obtained; and provided further, that, to the extent the parties are successful -------- ------- in providing the benefits of such Non-Transferred Instruments to Buyer, Buyer shall pay, honor and discharge when due all liabilities, obligations and commitments of Seller related thereto to the extent due to operations conducted after the Closing Date.
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Certain Consents. Subject Buyer and Merger Sub acknowledge that certain consents to the other provisions of this Agreement, including Section 5.03, from and after the date hereof until the earlier of the Closing and the termination of this Agreement in accordance with the terms and conditions of Article 9, each party shall, and shall cause its Affiliates to, cooperate with the other party and its Affiliates in good faith and use its and their respective commercially reasonable efforts to (a) consult with such other party and its Affiliates in good faith to determine whether any Third Party Approval (including any third party notices) is required in connection with the consummation of the transactions contemplated by this Agreement may be required from parties to contracts or other agreements to which the Company or one of its Subsidiaries is a party and that such consents have not been obtained and may not be obtained. Buyer and Merger Sub agree that none of the Company Group or any Securityholder shall have any liability whatsoever to the Buyer Indemnitees (and the other Transaction Agreements, (bBuyer Indemnitees shall not be entitled to assert any claims) take such actions and furnish such information (subject arising out of or relating to the terms and conditions set forth in Section 5.04) as the parties, following consultation with one another in accordance with the preceding clause (a), mutually reasonably determine failure to obtain any consents that may have been or may be required in connection therewith, and (c) obtain at the earliest practicable date all Third Party Approvals, and send all third party notices, in each case, as set forth on Section 5.21 of the Seller Disclosure Schedule or as required for either party to the Transition Services Agreement to perform its obligations thereunder (and, to the extent that a third party requires a party that is a “Provider” of a service under the Transition Services Agreement to make any payment to obtain such Third Party Approval (any such payment, a “Consent Fee”), each party shall be responsible for 50% of such Consent Fee); provided that neither Seller nor any of its Affiliates (including the Companies) shall be required to, and without the prior written consent of Buyer permitted (other than with respect to Liabilities satisfied and discharged in full prior to the Closing) to, incur any Liabilities, make any payment to any Person, commence, defend or participate in any litigation, provide any financial or other accommodation or concession or agree to any amendment, condition or obligation (including any amendment to any existing condition or obligation) in order to obtain any Third Party Approval necessary or desirable to consummate the transactions contemplated by this Agreement or because of the default, acceleration or termination of or loss of right under any such contract or other agreement as a result thereof. Buyer and the other Transaction Agreements Merger Sub further agree that no representation, warranty or otherwise comply with their obligations under this Section 5.21, except that each party shall bear 50% covenant of any Consent Fees member of the Company Group contained herein shall be breached or deemed breached and no condition of Buyer shall be deemed not to be satisfied as a result of the failure to obtain any consent or as a result of any such default, acceleration or termination or loss of right or any action commenced or threatened by or on behalf of any Person arising from Third Party Approvals needed for either party out of or relating to the Transition Services Agreement to perform its obligations thereunder (which Third Party Approvals Seller will, with reasonable cooperation from Buyer, use commercially reasonable efforts failure to obtain prior any consent or any such default, acceleration or termination or loss of right. Any cooperation furnished by the Company Group to the Closing, subject to the allocation of Consent Fees as set forth in this proviso). Notwithstanding anything to the contrary in this Agreement, it is acknowledged and agreed by each of Buyer and Seller thatMerger Sub in obtaining or pursuing any such consents will not include any requirement of the Company, obtaining any Third Party Approval is not a condition of its Subsidiaries, or any Securityholder to expend money, commence any litigation or arbitration proceeding, or offer or grant any accommodation (financial or otherwise) to any third party’s obligations to effect the Closing in accordance herewith.
Appears in 1 contract
Certain Consents. Subject to the other provisions of this Agreement, including Section 5.03, from and after the date hereof until the earlier of the Closing and the termination of this Agreement in accordance with the terms and conditions of Article 9, each party shall, and shall cause its Affiliates to, cooperate with the other party and its Affiliates in good faith and use its and their respective commercially reasonable efforts to (a) consult with such other party and its Affiliates in good faith to determine whether any Third Party Approval (including any third party notices) is required in connection with the consummation of the transactions contemplated by this Agreement and the other Transaction Agreements, (b) take such actions and furnish such information (subject to the terms and conditions set forth in Section 5.04) as the parties, following consultation with one another in accordance with the preceding clause (a), mutually reasonably determine may be required in connection therewith, and (c) obtain at the earliest practicable date all Third Party Approvals, and send all third party notices, in each case, as set forth on Section 5.21 of the Seller Disclosure Schedule or as required for either party to the Transition Services Agreement to perform its obligations thereunder (and, to the extent that a third party requires a party that is a “Provider” of a service under the Transition Services Agreement to make any payment to obtain such Third Party Approval (any such payment, a “Consent Fee”), each party shall be responsible for 50% of such Consent Fee); provided that neither Seller nor any of its Affiliates (including the Companies) shall be required to, and without the prior written consent of Buyer permitted (other than with respect to Liabilities satisfied and discharged in full prior to the Closing) to, incur any Liabilities, make any payment to any Person, commence, defend or participate in any litigation, provide any financial or other accommodation or concession or agree to any amendment, condition or obligation (including any amendment to any existing condition or obligation) in order to obtain any Third Party Approval necessary or desirable to consummate the transactions contemplated by this Agreement and the other Transaction Agreements or otherwise comply with their obligations under this Section 5.21, except that each party shall bear 50% of any Consent Fees arising from Third Party Approvals needed for either party to the Transition Services Agreement to perform its obligations thereunder (which Third Party Approvals Seller will, with reasonable cooperation from Buyer, use commercially reasonable efforts to obtain prior to the Closing, subject to the allocation of Consent Fees as set forth in this proviso). Notwithstanding anything to the contrary in this Agreement, it is acknowledged this Agreement shall not constitute an agreement to assign or transfer any interest in any Contract, Lease, Agreement or other instrument or arrangement or any claim, right or benefit, or an agreement to assume any liability, obligation or commitment arising thereunder or resulting therefrom, if an assignment or transfer or an attempt to make such an assignment or transfer without the Consent of a third party would constitute a breach or violation thereof or a breach of Law, or affect adversely the rights of the Buyer or the Seller, or Aptus thereunder; and,any transfer or assignment to, or any assumption by, Buyer of any interest in, or liability, obligation or commitment under, any such Contract, Lease, Agreement or other instrument or arrangement that requires the Consent of a third party shall be made subject to such Consent being obtained. Prior to the Closing, each party will use all reasonable efforts and agreed by each of Buyer and Seller that, cooperate in obtaining any Third Party Approval is not a condition to any party’s obligations all Consents necessary to effect the transfer of all such Contracts, Leases, Agreements and other instruments and arrangements as contemplated hereby, provided that, neither party shall be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such Consent may be required (other than nominal governmental filing fees payable to any governmental authority or any fees which may be imposed under Section 3.10.3). In the event any such Consent is not obtained on or prior to the Closing Date, the parties will cooperate in accordance herewithany lawful and reasonable arrangement to provide that the Buyer shall receive the benefits under any Contract, Lease, Agreement or other instrument or arrangement not assigned and transferred at the Closing by reason of the failure to obtain such Consent (a "Non- Transferred Instrument"), including, if necessary, at the request and expense of Buyer, enforcing performance by any third party of its obligations in respect of such Non-Transferred Instrument; provided that Seller shall bear the expense of such enforcement to the extent it relates to Seller's failure to obtain such consent prior to Closing; and provided that, to the extent the parties are successful in providing the benefits of such Non- Transferred Instruments to the Buyer, the Buyer will pay, honor and discharge when due all liabilities, obligations and commitments of the Seller or Aptus related thereto to the extent due to the operations of Aptus conducted after the Closing Date. Seller shall use reasonable efforts to obtain any consents necessary with respect to the transfer of Permits. Primary responsibility shall rest with Seller and Buyer agrees to fully cooperate.
Appears in 1 contract
Certain Consents. Subject to the other provisions of this Agreement, including Section 5.03, from and after the date hereof until the earlier of the Closing and the termination of this Agreement in accordance with the terms and conditions of Article 9, each party shall, and shall cause its Affiliates to, cooperate with the other party and its Affiliates in good faith and use its and their respective commercially reasonable efforts to (a) consult with such other party and its Affiliates in good faith to determine whether any Third Party Approval (including any third party notices) is required in connection with the consummation of the transactions contemplated by this Agreement and the other Transaction Agreements, (b) take such actions and furnish such information (subject to the terms and conditions set forth in Section 5.04) as the parties, following consultation with one another in accordance with the preceding clause (a), mutually reasonably determine may be required in connection therewith, and (c) obtain at the earliest practicable date all Third Party Approvals, and send all third party notices, in each case, as set forth on Section 5.21 of the Seller Disclosure Schedule or as required for either party to the Transition Services Agreement to perform its obligations thereunder (and, to the extent that a third party requires a party that is a “Provider” of a service under the Transition Services Agreement to make any payment to obtain such Third Party Approval (any such payment, a “Consent Fee”), each party shall be responsible for 50% of such Consent Fee); provided that neither Seller nor any of its Affiliates (including the Companies) shall be required to, and without the prior written consent of Buyer permitted (other than with respect to Liabilities satisfied and discharged in full prior to the Closing) to, incur any Liabilities, make any payment to any Person, commence, defend or participate in any litigation, provide any financial or other accommodation or concession or agree to any amendment, condition or obligation (including any amendment to any existing condition or obligation) in order to obtain any Third Party Approval necessary or desirable to consummate the transactions contemplated by this Agreement and the other Transaction Agreements or otherwise comply with their obligations under this Section 5.21, except that each party shall bear 50% of any Consent Fees arising from Third Party Approvals needed for either party to the Transition Services Agreement to perform its obligations thereunder (which Third Party Approvals Seller will, with reasonable cooperation from Buyer, use commercially reasonable efforts to obtain prior to the Closing, subject to the allocation of Consent Fees as set forth in this proviso). Notwithstanding anything to the contrary in this Agreement, it is acknowledged this Agreement shall not constitute an agreement to assign or transfer any interest in any Contract, Lease, Agreement or other instrument or arrangement or any claim, right or benefit, or an agreement to assume any liability, obligation or commitment arising thereunder or resulting therefrom, if an assignment or transfer or an attempt to make such an assignment or transfer without the Consent of a third party would constitute a breach or violation thereof or a breach of Law, or affect adversely the rights of the Buyer or the Seller, or Aptus thereunder; and agreed by any transfer or assignment to, or any assumption by, Buyer of any interest in, or liability, obligation or commitment under, any such Contract, Lease, Agreement or other instrument or arrangement that requires the Consent of a third party shall be made subject to such Consent being obtained. Prior to the Closing, each of Buyer party will use all reasonable efforts and Seller that, cooperate in obtaining any Third Party Approval is not a condition to any party’s obligations all Consents necessary to effect the transfer of all such Contracts, Leases, Agreements and other instruments and arrangements as contemplated hereby, provided that, neither party shall be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such Consent may be required (other than nominal governmental filing fees payable to any governmental authority or any fees which may be imposed under Section 3.10.3). In the event any such Consent is not obtained on or prior to the Closing Date, the parties will cooperate in accordance herewithany lawful and reasonable arrangement to provide that the Buyer shall receive the benefits under any Contract, Lease, Agreement or other instrument or arrangement not assigned and transferred at the Closing by reason of the failure to obtain such Consent (a "Non- Transferred Instrument"), including, if necessary, at the request and expense of Buyer, enforcing performance by any third party of its obligations in respect of such Non-Transferred Instrument; provided that Seller shall bear the expense of such enforcement to the extent it relates to Seller's failure to obtain such consent prior to Closing; and provided that, to the extent the parties are successful in providing the benefits of such Non- Transferred Instruments to the Buyer, the Buyer will pay, honor and discharge when due all liabilities, obligations and commitments of the Seller or Aptus related thereto to the extent due to the operations of Aptus conducted after the Closing Date. Seller shall use reasonable efforts to obtain any consents necessary with respect to the transfer of Permits. Primary responsibility shall rest with Seller and Buyer agrees to fully cooperate.
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