Common use of Initial Purchase Order Clause in Contracts

Initial Purchase Order. (a) Seller shall use its best efforts to execute and deliver to Buyer the Initial Purchase Order on or before October 10, 2003 (the “PO Delivery Date”). If, for any reason, Seller fails to execute and deliver to Buyer the Initial Purchase Order on or before the PO Delivery Date (the period from and after the Closing Date until the latter of the PO Delivery Date or the expiration of the Cure Period, as the case may be, is hereinafter referred to as the “Contingent Period”), then Seller shall have an additional five (5) days (the “Cure Period”) to direct Buyer to make any changes to the plant (which changes shall be at Seller’s sole cost and expense) in order to enable Seller to deliver to Buyer the executed Initial Purchase Order. If Seller is able to deliver the executed Initial Purchase Order on or prior to the PO Delivery Date or the expiration of the Cure Period, as the case may be, then this Section 5.12 (other that Seller’s expense reimbursement obligations contained herein) shall be inoperative and have no further force and effect. Otherwise, the parties shall immediately unwind the transactions consummated on the Closing Date pursuant to this Agreement and the other agreements contemplated hereby. In such event, this Agreement and such other agreements shall be deemed to be null and void and only the provisions of Sections 5.2, 5.3, 5.11 and this Section 5.12 shall be operative and shall survive. Such transactions shall be unwound with a view toward placing Buyer and Seller in their respective positions (financial and otherwise) as existed immediately prior to the Closing Date as if Buyer had been operating the Business as an agent for and for the benefit of Seller during the Contingent Period. Without limiting the foregoing, (i) Buyer shall reimburse Seller for all amounts received by Buyer during the Contingent Period in respect of Accounts Receivable collected by Buyer and Inventory sold by Buyer, if any, and (ii) Seller shall reimburse Buyer for all amounts expended by Buyer during the Contingent Period in the ordinary course of Buyer’s conduct of the business. Buyer and Seller agree to cooperate in good faith and to use their commercially reasonable efforts to expeditiously unwind such transactions in the manner provided herein. (b) During the Contingent Period, Buyer agrees to operate the business in the ordinary course consistent with Seller's prior practices and to make no material change with respect to the personnel and assets of Buyer's business. (c) Buyer agrees to indemnify Seller and its officers, directors, stockholders, members, employees and agents and their respective successors and assigns, defend and hold each of them harmless from and against, and pay and reimburse any of them for, any and all Damages which any of the foregoing may sustain at any time by reason of Buyer's gross negligence or willful misconduct in connection with Buyer's conduct of the business during the Contingent Period. (d) Seller agrees to indemnify Buyer and all of its officers, directors, stockholders, employees and agents and their respective successors and assigns, defend and hold each of them harmless from and against, and pay and reimburse any of them for, any and all Damages which any of the foregoing may sustain at any time by reason of the operation of the Buyer's business during the Contingent Period, except Damages for which Buyer is obligated to indemnify Seller pursuant to paragraph (c) above.

Initial Purchase Order. (a) Seller shall use its best efforts With respect to execute and deliver to Buyer each Party’s obligations in connection with the Initial Purchase Order on or before October 10set forth in Exhibit D of the Supply Agreement, 2003 the Parties agree as follows: a. NDT shall deliver units of Product to CDX no later than December 15, 2016 (the “PO Delivery DateInitial Delivery”); and b. CDX shall make a payment of to NDT no later than November 30, 2017 (the “Purchase Order Payment”); c. NDT shall deliver units of Product to CDX no later than thirty (30) days following its full receipt of the Purchase Order Payment (the “Final Delivery”). IfCDX agrees that upon NDT’s fulfillment of the Initial Delivery, for any reason, Seller fails NDT shall have no further obligations to execute and CDX to deliver to Buyer additional Products in connection with the Initial Purchase Order on or before the PO Delivery Date (the period from and after the Closing Date until the latter set forth in Exhibit D of the PO Supply Agreement, and CDX explicitly waives its rights to the refund of any and all deposits and payments paid to NDT in connection with the Initial Purchase Order; provided that NDT shall remain obligated for the Final Delivery Date or the expiration contingent on CDX’s timely fulfillment of the Cure PeriodPurchase Order Payment. NDT agrees that upon CDX’s fulfillment of the Purchase Order Payment, as CDX shall have no further payment obligations to NDT in connection with the case may beInitial Purchase Order set forth in Exhibit D. CDX agrees that upon its failure to pay the Purchase Order Payment in full by the due date, is hereinafter referred CDX shall remain obligated to as the “Contingent Period”), then Seller pay to NDT and NDT shall have an additional five (5) days (ongoing right to terminate the “Cure Period”) Supply Agreement immediately upon written notice to direct Buyer to make any changes to the plant (which changes shall be at Seller’s sole cost and expense) in order to enable Seller to deliver to Buyer the executed Initial Purchase Order. If Seller is able to deliver the executed Initial Purchase Order on or prior to the PO Delivery Date or the expiration of the Cure Period, as the case may be, then this Section 5.12 (other that Seller’s expense reimbursement obligations contained herein) shall be inoperative and have no further force and effect. Otherwise, the parties shall immediately unwind the transactions consummated on the Closing Date pursuant to this Agreement and the other agreements contemplated hereby. In such event, this Agreement and such other agreements shall be deemed to be null and void and only the provisions of Sections 5.2, 5.3, 5.11 and this Section 5.12 shall be operative and shall survive. Such transactions shall be unwound with a view toward placing Buyer and Seller in their respective positions (financial and otherwise) as existed immediately prior to the Closing Date as if Buyer had been operating the Business as an agent for and for the benefit of Seller during the Contingent Period. Without limiting the foregoing, (i) Buyer shall reimburse Seller for all amounts received by Buyer during the Contingent Period in respect of Accounts Receivable collected by Buyer and Inventory sold by Buyer, if any, and (ii) Seller shall reimburse Buyer for all amounts expended by Buyer during the Contingent Period in the ordinary course of Buyer’s conduct of the business. Buyer and Seller agree to cooperate in good faith and to use their commercially reasonable efforts to expeditiously unwind such transactions in the manner provided hereinCDX. (b) During the Contingent Period, Buyer agrees to operate the business in the ordinary course consistent with Seller's prior practices and to make no material change with respect to the personnel and assets of Buyer's business. (c) Buyer agrees to indemnify Seller and its officers, directors, stockholders, members, employees and agents and their respective successors and assigns, defend and hold each of them harmless from and against, and pay and reimburse any of them for, any and all Damages which any of the foregoing may sustain at any time by reason of Buyer's gross negligence or willful misconduct in connection with Buyer's conduct of the business during the Contingent Period. (d) Seller agrees to indemnify Buyer and all of its officers, directors, stockholders, employees and agents and their respective successors and assigns, defend and hold each of them harmless from and against, and pay and reimburse any of them for, any and all Damages which any of the foregoing may sustain at any time by reason of the operation of the Buyer's business during the Contingent Period, except Damages for which Buyer is obligated to indemnify Seller pursuant to paragraph (c) above.