Non-Assignable Contracts. (a) To the extent that any Assigned Contract or any Seller Consent is not capable of being assigned under Section 365 of the U.S. Bankruptcy Code (or, if inapplicable, pursuant to other applicable Laws or the terms of such Contract or Consent) to the Purchaser or a Designated Purchaser at the Closing (i) without the Consent of the issuer thereof or the other party thereto or any Third Party (including a Government Entity), and such Consent cannot be obtained pursuant to Section 2.1.7 or (ii) whether or not Consent is required, without Sellers’ and their Affiliates’ compromising any right, asset or benefit (including, with respect to licenses of Intellectual Property, relinquishment of rights in the Retained Field of Use, as defined in the Intellectual Property License Agreement) or expending any amount or incurring any Liability or providing any other consideration other than as provided in Section 2.1.7 (collectively, the “Non-Assignable Contracts”), this Agreement will not constitute an assignment thereof, or an attempted assignment, unless and until any such Consent is obtained; provided, however, that the Sellers will use their reasonable efforts to (i) cooperate with the Purchaser in connection with any commercially reasonable arrangement to provide the Purchaser the same interest, benefits and rights under any such Non-Assignable Contracts that are not licenses of Intellectual Property or Real Estate Leases as the applicable Seller had immediately prior to the Closing, including entering into one or more mutually agreed commercially reasonable subcontract agreements, and (ii) facilitate Purchaser’s negotiation with the other party to each Non-Assignable Contract that is a license of Intellectual Property to provide the Purchaser the same interest, benefits and rights under any such Non-Assignable Contracts as the applicable Seller had immediately prior to the Closing (including paying Cure Costs in order to obtain such Consent). Provided, and only for so long as, the arrangements described in clause (i) of the immediately preceding sentence are made such that Purchaser has obtained the same interest, benefits and rights under any such Non-Assignable Contracts, then, as between the Sellers and the Purchaser (or the relevant Designated Purchaser), such Non-Assignable Contracts shall be deemed to be assigned and the Purchaser (or the relevant Designated Purchaser) shall perform all obligations and covenants thereunder. Notwithstanding the foregoing sentences, nothing in this Section 5.14 shall require any Seller to renew, modify or amend any Non-Assignable Contract once it has expired. Any Non-Assignable Contract assigned pursuant to the terms of this Section 5.14 shall, when assigned, constitute an Assigned Contract hereunder for all purposes except under Section 8.3(c) from and after such date. (b) For the purposes of this Agreement (including Section 5.14(a) and Section 8.3(c) and all representations and warranties of the Sellers contained herein), the relevant Sellers shall be deemed to have obtained all required Consents in respect of the assignment of any Assumed and Assigned Contract if, and to the extent that, pursuant to the U.S. Sale Order, the Sellers are authorized to assume and assign to the Designated Purchasers such Seller Contract pursuant to Section 365 of the U.S. Bankruptcy Code and any applicable Cure Cost has been satisfied as provided in Section 2.1.7.
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Non-Assignable Contracts. (a) To The following shall be added as Section 5.14(c): “If, after the extent that any Assigned Contract or any Seller Consent is not capable of being assigned under Section 365 of the U.S. Bankruptcy Code (orClosing, if inapplicable, pursuant to other applicable Laws or the terms of such Contract or Consent) to the Purchaser or a the relevant Designated Purchaser at receives a purchase order on account of any Non-Assignable Contract that is a contract between a Seller and a customer of such Seller (each a “Non-Assignable Customer Contract” and the Closing customer counterparty thereto a “Non-Assignable Customer Counterparty”), Purchaser or the relevant Designated Purchaser shall request that such Non-Assignable Customer Counterparty consent in writing to the assignment of such Non-Assignable Customer Contract to Purchaser or the relevant Designated Purchaser. For the period in which such consent is not forthcoming (the “Non-Assignable Period”), Purchaser or the relevant Designated Purchaser shall process such purchase order and Seller shall provide the Purchaser or the relevant Designated Purchaser with the interest, benefits and rights under such Non-Assignable Customer Contract in accordance with Section 5.14(a); provided, however, that Seller’s obligation to provide Purchaser or the relevant Designated Purchaser with the interest, benefits and rights under such Non-Assignable Customer Contract will terminate upon the earliest of (i) without the Consent effective date of the issuer thereof or the other party thereto or any Third Party (including a Government Entity)such consent, and such Consent cannot be obtained pursuant to Section 2.1.7 or (ii) whether the effective date of any direct agreement between Purchaser (or not Consent is requiredthe relevant Designated Purchaser) and such Non-Assignable Customer Counterparty or (iii) in accordance with Section 5.14(a); provided further, without Sellers’ however, that Purchaser and their Affiliates’ compromising any rightthe relevant Designated Purchaser agree to indemnify, asset or benefit (includingdefend and hold Sellers and each Seller’s respective directors, with respect to licenses of Intellectual Property, relinquishment of rights in the Retained Field of Use, as defined in the Intellectual Property License Agreement) or expending any amount or incurring any Liability or providing any other consideration other than as provided in Section 2.1.7 officers and personnel (collectively, the “Non-Assignable ContractsCustomer Contracts Indemnitees”)) harmless from and against any and all losses, this Agreement will not constitute an assignment thereofcosts, damages, expenses and liabilities whatsoever (including reasonable legal fees) which may be suffered or an attempted assignment, unless and until incurred by any such Consent is obtained; provided, however, that Non-Assignable Customer Contracts Indemnitee arising out of claims made by a Non-Assignable Customer Counterparty relating to Seller’s providing Purchaser and/or the Sellers will use their reasonable efforts to (i) cooperate relevant Designated Purchaser with the Purchaser in connection with any commercially reasonable arrangement to provide the Purchaser the same interestinterests, benefits and rights under any such the relevant Non-Assignable Contracts that are not licenses of Intellectual Property or Real Estate Leases as Customer Contract during the applicable Seller had immediately prior to the Closing, including entering into one or more mutually agreed commercially reasonable subcontract agreements, and (ii) facilitate Purchaser’s negotiation with the other party to each Non-Assignable Contract that is a license of Intellectual Property to provide the Purchaser the same interest, benefits and rights under any such Non-Assignable Contracts as the applicable Seller had immediately prior to the Closing (including paying Cure Costs in order to obtain such Consent). Provided, and only for so long as, the arrangements described in clause (i) of the immediately preceding sentence are made such that Purchaser has obtained the same interest, benefits and rights under any such Non-Assignable Contracts, then, as between the Sellers and the Purchaser (or the relevant Designated Purchaser), such Non-Assignable Contracts shall be deemed to be assigned and the Purchaser (or the relevant Designated Purchaser) shall perform all obligations and covenants thereunder. Notwithstanding the foregoing sentences, nothing in this Section 5.14 shall require any Seller to renew, modify or amend any Non-Assignable Contract once it has expired. Any Non-Assignable Contract assigned pursuant to the terms of this Section 5.14 shall, when assigned, constitute an Assigned Contract hereunder for all purposes except under Section 8.3(c) from and after such datePeriod.
(b) For the purposes of this Agreement (including Section 5.14(a) and Section 8.3(c) and all representations and warranties of the Sellers contained herein), the relevant Sellers shall be deemed to have obtained all required Consents in respect of the assignment of any Assumed and Assigned Contract if, and to the extent that, pursuant to the U.S. Sale Order, the Sellers are authorized to assume and assign to the Designated Purchasers such Seller Contract pursuant to Section 365 of the U.S. Bankruptcy Code and any applicable Cure Cost has been satisfied as provided in Section 2.1.7.”
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Non-Assignable Contracts. (a) To the extent that any Assigned Contract or any Seller Consent is not capable of being assigned under Section 365 of the U.S. Bankruptcy Code (or, if inapplicable, pursuant to other applicable Laws or the terms of such Contract or Consent) to the Purchaser or a Designated Purchaser at the Closing Closing, (i) without the Consent of the issuer thereof or the other party thereto or any Third Party (including a Government Entity), and such Consent cannot be obtained pursuant to Section 2.1.7 or (ii) whether or not Consent is required, without Sellers’ and their Affiliates’ compromising any right, asset or benefit (including, with respect to licenses of Intellectual Property, relinquishment of rights in the Retained Field of Use, as defined in the Intellectual Property License Agreement) or expending any amount or incurring any Liability or providing any other consideration other than as provided in Section 2.1.7 (collectively, the “Non-Assignable Contracts”), this Agreement will not constitute an assignment thereof, or an attempted assignment, unless and until any such Consent is obtained; provided, however, that the Sellers will use their reasonable efforts to (i) cooperate with the Purchaser in connection with any commercially reasonable arrangement to provide the Purchaser the same interest, benefits and rights under any such Non-Assignable Contracts that are not licenses of Intellectual Property or Real Estate Leases as the applicable Seller had immediately prior to the Closing, including entering into one or more mutually agreed commercially reasonable subcontract agreements, and (ii) facilitate Purchaser’s negotiation with the other party to each Non-Assignable Contract that is a license of Intellectual Property to provide the Purchaser the same interest, benefits and rights under any such Non-Assignable Contracts as the applicable Seller had immediately prior to the Closing (including paying Cure Costs in order to obtain such Consent). Provided, and only for so long as, the arrangements described in clause (i) of the immediately preceding sentence are made such that Purchaser has obtained the same interest, benefits and rights under any such Non-Assignable Contracts, then, as between the Sellers and the Purchaser (or the relevant Designated Purchaser), such Non-Assignable Contracts shall be deemed to be assigned and the Purchaser (or the relevant Designated Purchaser) shall perform all obligations and covenants thereunder. Notwithstanding the foregoing sentences, nothing in this Section 5.14 shall require any Seller to renew, modify or amend any Non-Assignable Contract once it has expired. Any Non-Assignable Contract assigned pursuant to the terms of this Section 5.14 shall, when assigned, constitute an Assigned Contract hereunder for all purposes purposes, except under Section 8.3(c) 8.3(d), from and after such date.
(b) For the purposes of this Agreement (including Section 5.14(a) and Section 8.3(c8.3(d)) and all representations and warranties of the Sellers contained herein), the relevant Sellers shall be deemed to have obtained all required Consents in respect of the assignment of any Assumed and Assigned Contract if, and to the extent that, pursuant to the U.S. Sale Order, the Sellers are authorized to assume and assign to the Purchaser or a Designated Purchasers Purchaser such Seller Contract pursuant to Section 365 of the U.S. Bankruptcy Code and any applicable Cure Cost has been satisfied as provided in Section 2.1.7.
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Non-Assignable Contracts. (a) To the extent that any Assigned Contract or any Seller Consent is not capable of being assigned under Section 365 of the U.S. Bankruptcy Code (or, if inapplicable, pursuant to other applicable Laws or the terms of such Contract or Consent) to the Purchaser or a Designated Purchaser at the Closing (i) without Notwithstanding any other provision in this Agreement, neither this Agreement nor any other document executed by the Consent of the issuer thereof or the other party thereto or any Third Party (including a Government Entity), and such Consent cannot be obtained Seller Parties pursuant to Section 2.1.7 this Agreement will constitute an assignment or attempted assignment of any Non-Assignable Contract.
(ii) whether or not Consent is required, without Sellers’ Upon the mutual agreement of the Buyer Parties and their Affiliates’ compromising any right, asset or benefit (including, with respect to licenses of Intellectual Property, relinquishment of rights in the Retained Field of Use, as defined in the Intellectual Property License Agreement) or expending any amount or incurring any Liability or providing any other consideration other than as provided in Section 2.1.7 (collectivelySeller Parties, the “Non-Assignable Contracts”), this Agreement will not constitute an assignment thereof, or an attempted assignment, unless and until any such Consent is obtained; provided, however, that the Sellers Seller Parties will use their commercially reasonable efforts to (i) cooperate with obtain any consent to assignment which may be required for the Purchaser in connection with any commercially reasonable arrangement assignment to provide the Purchaser the same interest, benefits and rights under Buyer Sub of any such Non-Assignable Contracts that are Contract. The expenses of obtaining any such consents shall be allocated equitably between the Parties in a manner mutually agreed upon by the Parties on a case by case basis, and the Buyer Parties will provide reasonable assistance to Seller Parties. If any necessary consent has not licenses been obtained as of Intellectual Property or Real Estate Leases as the applicable Seller had immediately prior to the Closing, including entering into one or more mutually agreed commercially reasonable subcontract agreements, and (ii) facilitate Purchaser’s negotiation with the other party to each such Non-Assignable Contract that is a license of Intellectual Property will not be deemed assigned and the Seller Parties will:
(A) hold their right, title and interest in, to provide the Purchaser the same interest, benefits and rights under any such Non-Assignable Contracts Contract for the benefit of the Buyer Sub until such consent is obtained;
(B) use commercially reasonable efforts (without obligation to pay any fee or other compensation, other than contractual assignment fees) to obtain the consent to the assignment to the Buyer Sub of such Non-Assignable Contract;
(C) take such commercially reasonable action in the name of the Seller Parties or otherwise as the Buyer Sub may reasonably require to provide the Buyer Sub with the benefits of the Non-Assignable Contract, including taking legal action to enforce the terms of any Non-Assignable Contract, including with respect to any breach thereof by the applicable counterparty, provided that expenses relating to any such action shall be borne by the Buyer Parties, and provided further that the Buyer Parties will have the right to direct any related Legal Proceeding; and
(D) unless prohibited by the terms of the Non-Assignable Contract, authorize the Buyer Sub, at the Buyer Sub’s expense, to perform all of the Seller had immediately prior Parties’ obligations and have all of the Seller Parties’ rights, including payment, under such Non-Assignable Contract and constitute the Buyer Sub the attorney of the Seller Parties to act in the name of the Seller Parties with respect to such Non-Assignable Contract, in which case the Buyer Sub shall be entitled to the full benefit of the Non-Assignable Contract. For the avoidance of doubt, the Buyer Sub shall be entitled to all payments, including any receivables that constitute Current Trade Receivables, received by the Buyer Sub, the Seller Parties or any of their respective Affiliates on such Non-Assignable Contract following Closing.
(iii) Buyer Sub will timely perform and satisfy the Seller’s obligations under the Non-Assignable Contract.
(iv) Notwithstanding anything herein to the contrary, to the extent Seller Parties have not obtained consent to assign a Non-Assignable Contract to Buyer Sub within 75 days following the Closing (including paying Cure Costs in order Date, Buyer Sub shall nevertheless assume and agree to perform such Non-Assignable Contract immediately thereafter, provided that Seller Parties shall indemnify Buyer Parties pursuant to Section 7.2(a)(iii) for any Losses on or after the Closing attributable to the failure to obtain such Consent). Providedconsent.
(v) Notwithstanding the foregoing, and only for so long as, to the arrangements described in clause (i) extent any of the immediately preceding sentence are made such that Purchaser has obtained the same interest, benefits and rights under any such Leases constitute Non-Assignable Contracts, then, as between the Sellers and the Purchaser applicable landlord requires, in connection with granting a consent to assignment following the Closing, any financial concession (including an assignment fee (whether or not contractual), increase in rent, increase in security deposit, or otherwise), the Seller Parties shall bear the full amount of such financial concession, and the Buyer Sub shall be reimbursed, at its election, from the Seller Parties or the relevant Designated Purchaser), such Escrow Account for the full amount thereof.
(vi) Non-Assignable Contracts shall be deemed to be included in the Preliminary Net Asset Amount and in the Net Asset Amount as if such Contracts had been assigned and the Purchaser (or the relevant Designated Purchaser) shall perform all obligations and covenants thereunder. Notwithstanding the foregoing sentences, nothing in this Section 5.14 shall require any Seller to renew, modify or amend any Non-Assignable Contract once it has expired. Any Non-Assignable Contract assigned pursuant to the terms of this Section 5.14 shall, when assigned, constitute an Assigned Contract hereunder for all purposes except under Section 8.3(c) from and after such dateBuyer Sub.
(b) For the purposes of this Agreement (including Section 5.14(a) and Section 8.3(c) and all representations and warranties of the Sellers contained herein), the relevant Sellers shall be deemed to have obtained all required Consents in respect of the assignment of any Assumed and Assigned Contract if, and to the extent that, pursuant to the U.S. Sale Order, the Sellers are authorized to assume and assign to the Designated Purchasers such Seller Contract pursuant to Section 365 of the U.S. Bankruptcy Code and any applicable Cure Cost has been satisfied as provided in Section 2.1.7.
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Non-Assignable Contracts. (a) To the extent that any Assigned Contract consent or acknowledgement of a third Person (including the Obligor thereof, any Seller Consent governmental authority or agency thereof) is required for the sale, assignment, transfer, set-over or other conveyance to Buyer of a Receivable or Related Security to Buyer and such consent or acknowledgement is not capable obtained by Originator, then such Receivable or Related Security shall not be sold, assigned, transferred, set-over or otherwise conveyed to Buyer hereunder (but upon such consent or acknowledgement being obtained, such Receivable or Related Security shall be automatically, and without further action, sold, assigned, transferred, set-over and otherwise conveyed to Buyer hereunder).
(b) Until such consent or acknowledgement is obtained Originator shall (at Originator's sole cost and expense), except with respect to the Receivables owing by Pyroil Canada, QBD Cooling Systems Inc. and Cambridge-Lee to which the balance of being assigned under this paragraph (b) does not app▇▇, from and after the date hereof, but without limiting Section 365 8.1(c) of the U.S. Bankruptcy Code Purchase Agreement:
(or, if inapplicable, pursuant to other applicable Laws or A) hold the terms benefits of such Contract Receivable or ConsentRelated Security (including any payments thereunder) in trust for Buyer in accordance with the provisions of this Section 1.8, such benefits to accrue fully to the Purchaser benefit of Buyer;
(B) in order that the full value of such Receivable or a Designated Purchaser Related Security may be realized for the benefit of Buyer, take, at the Closing request and under the direction of Buyer, in the name of Originator or otherwise as Buyer may specify, all such actions and do or cause to be done all such things as are, in the opinion of Buyer, necessary or proper in order that the value of such Receivable or Related Security is preserved and to ensure that Buyer is recognized as having the exclusive beneficial interest in such Receivable or Related Security; and
(C) effect collection of money to become or which become due and payable under or in respect of such Receivable or Related Security and promptly pay over to Buyer all money collected by or paid to Originator in respect of such Receivable or Related Security (including enforcing any rights of Originator arising from any such Receivable or Related Security against any Person in accordance with the provisions hereof).
(c) Without limiting the foregoing, Originator shall use all reasonable efforts following execution hereof, to obtain as quickly as possible, all such consents or acknowledgments that have not been obtained as of the execution hereof, including from Pyroil Canada, QBD Cooling Systems Inc. and Cambridge-Lee, provided that to the extent that any such consents or ▇▇▇nowledgments have not been obtained within two weeks following the date hereof, Originator shall forthwith take all necessary steps to ensure that the Collections in respect of the related Receivables are not deposited to one of the Collection Accounts listed in Exhibit III hereto but are instead (until such time as such consents or acknowledgments in each case are obtained), (i) without the Consent of the issuer thereof or the other party thereto or any Third Party (including a Government Entity), and such Consent cannot be obtained pursuant paid to Section 2.1.7 or (ii) whether or not Consent is required, without Sellers’ and their Affiliates’ compromising any right, asset or benefit (including, with respect to licenses of Intellectual Property, relinquishment of rights in the Retained Field of Use, as defined in the Intellectual Property License Agreement) or expending any amount or incurring any Liability or providing any other consideration other than as provided in Section 2.1.7 (collectively, the “Non-Assignable Contracts”), this Agreement will not constitute an assignment thereof, or an attempted assignment, unless and until any such Consent is obtained; provided, however, that the Sellers will use their reasonable efforts to (i) cooperate with the Purchaser in connection with any commercially reasonable arrangement to provide the Purchaser the same interest, benefits and rights under any such Non-Assignable Contracts that are not licenses of Intellectual Property or Real Estate Leases as the applicable Seller had immediately prior to the Closing, including entering into one or more mutually agreed commercially reasonable subcontract agreementsseparate segregated accounts, and (ii) facilitate Purchaser’s negotiation with that such separate segregated accounts are made subject to a Collection Account Agreement.
(d) To the other party to each Non-Assignable Contract that is a license of Intellectual Property to provide the Purchaser the same interest, benefits and rights under extent any such Non-Assignable Contracts consents or acknowledgments have been obtained as of the applicable Seller had immediately prior execution hereof, but were obtained by email or otherwise not in the form requested by counsel to the Closing (including paying Cure Costs in order to obtain such Consent). Provided, and only for so long as, the arrangements described in clause (i) of the immediately preceding sentence are made such that Purchaser has obtained the same interest, benefits and rights under any such Non-Assignable ContractsAgent, then, as between further assurance thereof, at the Sellers and the Purchaser (or the relevant Designated Purchaser), such Non-Assignable Contracts shall be deemed to be assigned and the Purchaser (or the relevant Designated Purchaser) shall perform all obligations and covenants thereunder. Notwithstanding the foregoing sentences, nothing in this Section 5.14 shall require any Seller to renew, modify or amend any Non-Assignable Contract once it has expired. Any Non-Assignable Contract assigned pursuant to the terms of this Section 5.14 shall, when assigned, constitute an Assigned Contract hereunder for all purposes except under Section 8.3(c) from and after such date.
(b) For the purposes of this Agreement (including Section 5.14(a) and Section 8.3(c) and all representations and warranties request of the Sellers contained herein)Buyer or its assigns, the relevant Sellers shall be deemed seek (and use all reasonable efforts to have obtained all required Consents obtain within 2 weeks thereafter) such additional consents or acknowledgments, in respect of the assignment of any Assumed writing and Assigned Contract if, and to the extent that, pursuant to the U.S. Sale Order, the Sellers are authorized to assume and assign to the Designated Purchasers in such Seller Contract pursuant to Section 365 of the U.S. Bankruptcy Code and any applicable Cure Cost has been satisfied form as provided in Section 2.1.7so requested.
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Sources: Canadian Receivables Sale Agreement (Wolverine Tube Inc)