Common use of Nonassignable Contracts Clause in Contracts

Nonassignable Contracts. Notwithstanding anything to the contrary contained in this Agreement, this Agreement shall not constitute an agreement to transfer, sell or otherwise assign any contract, license, or other agreement or arrangement which is not permitted to be assigned in connection with a transaction of the type contemplated by this Agreement (collectively, the “Unassigned Contracts”). The beneficial interest in and to each Unassigned Contract shall in any event pass to Buyers, as applicable, at the Closing, and Parent and Seller covenant and agree to cooperate with Buyers in any lawful arrangement to provide Buyers, as applicable, with Seller’s and/or its Affiliates’ entire interest in the benefits under each Unassigned Contract and to otherwise work in good faith to achieve an assignment. Seller shall remain obligated to comply with its obligations under an Unassigned Contract until such time as such Unassigned Contract (together with all rights, claims and interests with respect thereto) is assigned to the applicable Buyer at which time it shall become a Transferred Contract. Seller shall retain all rights in the Transferred Assets solely to the limited extent necessary to perform, and for the sole purpose of performing, its obligations under any Unassigned Contract in a manner consistent with past practice. If and only to the extent either Buyer receives the economic benefits under an Unassigned Contract, such Buyer agrees to accept the burdens and perform the obligations under such Unassigned Contract as subcontractor of Seller. Furthermore, if the other party(ies) to an Unassigned Contract subsequently consents to the assignment of such contract to a Buyer (without modification thereto which is adverse to such Buyer), such Buyer shall thereupon agree to assume and perform all liabilities and obligations arising thereunder after the date of such consent, at which time such Unassigned Contract shall be deemed a Transferred Contract. Notwithstanding anything to the contrary set forth herein, Parent shall be responsible for any payment of any fee or penalty in connection with the assignment of an Unassigned Contract to a Buyer.

Nonassignable Contracts. Notwithstanding anything (a) To the extent that the assignment of any Purchased Contract included in the Assumed Liabilities or Purchased Assets is not permitted without (i) the consent of the other party to the contrary contained in this AgreementPurchased Contract, (ii) the approval of Buyer as a source of the products or services called for by the Purchased Contract or (iii) the approval of Buyer as a lessee, then this Agreement shall not be deemed to constitute an agreement assignment or an attempted assignment of the same, if such assignment or attempted assignment would constitute a breach thereof. However, unless otherwise agreed as to transferany particular Purchased Contract, sell Seller shall use its best efforts to obtain any and all such consents, approvals and novations before, if unable to do so prior to Closing, and after Closing. (b) If any necessary consent, approval or otherwise assign any contract, license, or other agreement or arrangement which novation is not permitted obtained, Seller shall cooperate with Buyer in any reasonable arrangement designed to be assigned in connection provide Buyer with a transaction all of the type contemplated benefits and obligations under such Purchased Contract, as if such consent, approval or novation had been obtained, including subleases from Seller and, undertakings by Buyer of the work necessary to complete contracts as the agent of Seller with the understanding that Seller shall then invoice the customer for services rendered and promptly remit the amount of the receivable to Buyer. Without limiting the generality of the foregoing, the Parties acknowledge and agree that if the lessor under the Real Estate Lease does not provide its consent to the assignment of the Real Estate Lease from Seller to Buyer, (x) Seller and Buyer will cooperate with each other to enter into a sublease of the Real Estate Lease and (y) notwithstanding anything in this Agreement (collectivelyto the contrary, the “Unassigned Contracts”). The beneficial Seller shall be entitled to retain all of its right, title and interest in and to each Unassigned Contract shall in any event pass to Buyers, as applicable, at the Closing, and Parent and Seller covenant and agree to cooperate with Buyers in any lawful arrangement to provide Buyers, as applicable, with Seller’s and/or its Affiliates’ entire interest in the benefits under each Unassigned Contract and to otherwise work in good faith to achieve an assignment. Seller shall remain obligated to comply with its obligations under an Unassigned Contract until such time as such Unassigned Contract (together with all rights, claims and interests security deposit with respect thereto) is assigned to the applicable Buyer at which time it Real Estate Lease. Nothing in this Section 2.12 shall become a Transferred Contract. excuse Seller shall retain all rights in the Transferred Assets solely to the limited extent necessary to perform, and for the sole purpose of performing, its obligations under any Unassigned Contract in a manner consistent with past practice. If and only to the extent either Buyer receives the economic benefits under an Unassigned Contract, such Buyer agrees to accept the burdens and perform the obligations under such Unassigned Contract as subcontractor of Seller. Furthermore, if the other party(ies) to an Unassigned Contract subsequently consents to the assignment of such contract to a Buyer (without modification thereto which is adverse to such Buyer), such Buyer shall thereupon agree to assume and perform all liabilities and obligations arising thereunder after the date of such consent, at which time such Unassigned Contract shall be deemed a Transferred Contract. Notwithstanding anything to the contrary set forth herein, Parent shall be responsible from responsibility for any payment of any fee its representations and warranties or penalty in connection with the assignment of an Unassigned Contract to a Buyercovenants hereunder.

Nonassignable Contracts. Notwithstanding anything (a) To the extent that the assignment by Seller of any sales order, purchase order, lease or other contract included in the Purchased Assets is not permitted without (i) the consent of the other party to the contrary contained in this Agreementcontract, (ii) the approval of Buyer as a source of the products or services called for by such contract or (iii) the approval of Buyer as a lessee, this Agreement shall not be deemed to constitute an agreement to transfer, sell assignment or otherwise assign any contract, license, or other agreement or arrangement which is not permitted to be assigned in connection with a transaction an attempted assignment of the type contemplated by this Agreement same, if such assignment or attempted assignment would constitute a breach thereof. However, unless otherwise agreed as to any particular contract or order (collectivelyor class thereof), the “Unassigned Contracts”). The beneficial interest in Seller shall use commercially reasonable efforts to obtain any and to each Unassigned Contract all such consents, approvals and novations. (b) If any consent, approval or novation is requested but not obtained, Seller shall cooperate with Buyer in any event pass to Buyers, as applicable, at the Closing, and Parent and Seller covenant and agree to cooperate with Buyers in any lawful reasonable arrangement designed to provide Buyers, as applicable, the Buyer with Seller’s and/or its Affiliates’ entire interest in all of the benefits under each Unassigned Contract such contract, lease or order as if such consent, approval or novation had been obtained, including subleases from Seller and, undertakings by Buyer of the work necessary to complete contracts and to otherwise work in good faith to achieve an assignment. deliver goods and services called for thereunder as the agent of Seller with the understanding that Seller shall remain obligated then invoice the purchaser for the goods and services provided and promptly remit the amount of the receivable to comply with its obligations under an Unassigned Contract until Buyer. In any such time as such Unassigned Contract (together with all rightsarrangement, claims and interests the Buyer shall have the sole responsibility with respect thereto) is assigned to the applicable Buyer at which time it completion of the work following Closing; shall become a Transferred Contract. Seller bear all costs and expenses with respect thereto arising or occurring after the Closing Date; shall retain all rights in the Transferred Assets be solely entitled to the limited extent necessary benefits; and shall be solely responsible for any breach of contract with respect to perform, the goods and for services of the sole purpose of performing, its obligations under any Unassigned Contract in a manner consistent with past practice. If and only Business to the extent either they are manufactured or performed after the Closing Date. (c) If a consent, approval or novation requested by Buyer receives the economic benefits under an Unassigned Contract, such Buyer agrees pursuant to accept the burdens and perform the obligations under such Unassigned Contract as subcontractor of Seller. Furthermore, if the other party(ies) to an Unassigned Contract subsequently consents this Section is not obtained prior to the assignment Closing Date and as a result Buyer will not receive the benefit of such contract the goods or services to be received or the amounts to be paid pursuant to the underlying contract, lease or order despite the best efforts of the parties to develop a Buyer suitable arrangement pursuant to subsection (without modification thereto which is adverse to such Buyerb) above (the "Rejected Contracts"), such Buyer shall thereupon agree give written notice at or prior to assume Closing that the following adjustments shall be made: (i) All rights of Seller with respect to each Rejected Contract identified in Buyer's notice shall be deemed Excluded Assets and perform all shall not be deemed Purchased Assets for purposes of this Agreement, including for the determination of the consideration to be paid to Seller; (ii) All liabilities and obligations arising thereunder after of Seller with respect to each Rejected Contract identified in Buyer's notice shall not be deemed Assumed Liabilities for purposes of this Agreement, including determination of the date of such consentconsideration to be paid to Seller, at which time such Unassigned Contract and (iii) The consideration to be paid pursuant to Section 1.5(a) above shall be deemed a Transferred reduced to account for the value of the Rejected Contract. Notwithstanding anything to For the contrary set forth hereinpurposes of this reduction, Parent the Buyer's Stock shall be responsible for any payment of any fee or penalty in connection with the assignment of an Unassigned Contract to a Buyervalued at $1.50 per Share.

Nonassignable Contracts. (a) Notwithstanding anything to the contrary contained ----------------------- in this Agreement, this Agreement shall not constitute an agreement to transferassign or transfer any Tower or any governmental approval, sell or otherwise assign any instrument, contract, licenselease, warranty, permit or other agreement or arrangement which is not permitted or any claim, right or benefit arising thereunder or resulting therefrom if an assignment or transfer or an attempt to be assigned in connection with make such an assignment or transfer without a transaction required approval or Consent would constitute a breach or violation thereof or affect adversely the rights of the type contemplated by this Agreement Seller or the Purchaser. (collectively, the “Unassigned Contracts”). The beneficial interest in b) Seller and Purchaser shall continue to each Unassigned Contract shall in use all reasonable efforts to obtain any event pass to Buyers, as applicable, at the Closing, and Parent and Seller covenant and agree to cooperate with Buyers in any lawful arrangement to provide Buyers, as applicable, with Seller’s and/or its Affiliates’ entire interest in the benefits under each Unassigned Contract and to otherwise work in good faith to achieve an assignment. Seller shall remain obligated to comply with its obligations under an Unassigned Contract such approval or Consent until such time as such Unassigned Contract Consent or approval has been obtained, and Seller will cooperate with Purchaser (together with all rightsit being understood that such efforts shall not include any requirement of Seller or Purchaser to expend money or grant any financial accommodation (other than its own reasonable fees and expenses of counsel and advisors), claims unless the Purchaser has agreed to reimburse Seller or such Subsidiaries therefor) to provide that the Purchaser shall receive the interest of Seller in the benefits under (and interests with respect thereto) is assigned to the applicable Buyer at which time it shall become a Transferred Contractextent permitted by) any such instrument, contract, lease, warranty or permit or other agreement or arrangement. In addition, Seller shall retain all rights take such other actions (at Purchaser's expense) as may reasonably be requested by Purchaser in order to place Purchaser, insofar as reasonably possible, in the Transferred Assets solely same position as if such governmental approval, instrument, contract, lease, warranty, permit or other agreement or arrangement had been transferred as contemplated hereby and so all the benefits and burdens relating thereto shall inure to and be assumed by the limited extent necessary to perform, Purchaser from and for after the sole purpose of performing, its obligations under any Unassigned Contract in a manner consistent with past practiceapplicable Closing Date. If and only to when such Consents and approvals are obtained, the extent either Buyer receives transfer of the economic benefits under an Unassigned Contractapplicable governmental approval, such Buyer agrees to accept the burdens and perform the obligations under such Unassigned Contract as subcontractor of Seller. Furthermoreinstrument, if the contract, lease, warranty, permit or other party(ies) to an Unassigned Contract subsequently consents to the assignment of such contract to a Buyer (without modification thereto which is adverse to such Buyer), such Buyer shall thereupon agree to assume and perform all liabilities and obligations arising thereunder after the date of such consent, at which time such Unassigned Contract agreement or arrangement shall be deemed a Transferred Contract. Notwithstanding anything to the contrary set forth herein, Parent shall be responsible for any payment of any fee or penalty effected in connection accordance with the assignment terms of an Unassigned Contract to this Agreement; provided, however, that until such time, the Tower at issue shall not count as a Buyerterminated Tower as contemplated by Section 2.6 or Article VI hereof.

Nonassignable Contracts. Notwithstanding anything (a) To the extent that assignment hereunder by Seller to Purchaser of any Assumed Contract or Assumed Lease (collectively, the contrary contained in this Agreement“Assumed Agreements”) is not permitted or is not permitted without the consent of a third party, this Agreement shall not be deemed to constitute an agreement undertaking to transfer, sell or otherwise assign any contract, license, or other agreement or arrangement which the same if such consent is not permitted given or if such an undertaking otherwise would constitute a breach of or cause a loss of benefits thereunder. Notwithstanding the foregoing, this Section 1.3(a) shall not be read in derogation of Seller’s obligation to undertake all reasonable efforts to obtain such consents in accordance with Section 6.5. (b) If and to the extent that Seller is unable to obtain any third-party consent required for assignment of an Assumed Agreement prior to Closing (a “Non-Assigned Agreement”), Seller shall continue to be assigned in connection with a transaction bound by any such Assumed Agreement until the later of the type contemplated by this Agreement (collectively, the “Unassigned Contracts”). The beneficial interest in and to each Unassigned Contract shall in any event pass to Buyers, as applicable, at the Closing, and Parent and Seller covenant and agree to cooperate with Buyers in any lawful arrangement to provide Buyers, as applicable, with Seller’s and/or its Affiliates’ entire interest in the benefits under each Unassigned Contract and to otherwise work in good faith to achieve an assignment. Seller shall remain obligated to comply with its obligations under an Unassigned Contract until i) such time as Seller is able to obtain such Unassigned Contract third-party consent, or (together ii) such time as Seller no longer owns and operates its managed services business, such period being defined as the “Continuation Period.” In such event, during the Continuation Period, to the maximum extent permitted by law or the terms of the Non-Assigned Agreement, (i) Seller shall make the benefit of such Non-Assigned Agreement available to Purchaser, and (ii) the assignment provisions of this Agreement shall operate to the extent permitted by law or the applicable Non-Assigned Agreement to create a subcontract, sublease or sublicense with all rightsPurchaser to perform such Non-Assigned Agreement at a fee equal to the monies, claims rights and interests other consideration receivable or payable by Seller with respect thereto) is assigned to the applicable Buyer at which time it performance by or enjoyment of Purchaser under such subcontract, sublease or sublicense. To the extent such benefit is made available, or such subcontract, sublease or sublicense is created, then (1) Purchaser shall become a Transferred Contract. pay, perform and discharge fully all obligations of Seller under any such Non-Assigned Agreement after the Closing Date, (2) Seller shall, without further consideration therefor, pay and remit to Purchaser promptly any monies, rights and other consideration received in respect of the performance of such Non-Assigned Agreement, and (3) Seller shall retain exercise or exploit its rights and options under all rights in such Non-Assigned Agreements only as directed by Purchaser and at Purchaser’s expense. (c) In the Transferred Assets solely event Seller cannot subcontract, sublease or sublicense such performance pursuant to the limited terms of such Non-Assigned Agreement during the Continuation Period, then Purchaser shall loan the necessary employees, assets and property, including without limitation use of appropriate company or trade names, to permit timely performance by Seller of such Non-Assigned Agreement as provided therein. To the extent necessary to performsuch employees, assets and for the sole purpose of performingproperty are made available, its (i) Seller shall pay, perform and discharge fully all obligations under any Unassigned Contract such Non-Assigned Agreement after the Closing Date, (ii) Seller shall, without further consideration therefor, pay and remit to Purchaser promptly any monies, rights and other consideration received in a manner consistent with past practice. respect of the performance of such Non-Assigned Agreement, and (iii) Seller shall exercise or exploit its rights and options under all such Non-Assigned Agreements only as directed by Purchaser and at Purchaser’s expense. (d) If and only to the extent either Buyer receives the economic benefits under an Unassigned Contract, such Buyer agrees to accept the burdens and perform the obligations under such Unassigned Contract as subcontractor of Seller. Furthermore, if the other party(ies) to an Unassigned Contract subsequently consents to the assignment of such contract when any third-party consent to a Buyer (without modification thereto which is adverse to Non-Assigned Agreement shall be obtained or any such Buyer)Non-Assigned Agreement shall otherwise become assignable, such Buyer Seller shall thereupon agree to assume and perform promptly assign all liabilities of its rights and obligations arising thereunder after the date or in connection therewith to Purchaser without payment of further consideration therefor, and Purchaser shall assume such consent, at which time such Unassigned Contract shall be deemed a Transferred Contractrights and obligations. Notwithstanding anything herein to the contrary set forth hereincontrary, Parent nothing further shall be responsible for required of Seller as related to Purchaser in regards to any payment or all Non-Assigned Agreements after the expiration of any fee or penalty in connection with the assignment of an Unassigned Contract to a BuyerContinuation Period.

Nonassignable Contracts. Notwithstanding anything To the extent that the assignment by Sellers to Buyer of any license, contract or lease that is designated an Assigned Contract or an Intellectual Property License (including the contrary contained in this AgreementDesignated Licenses) is not permitted by Bankruptcy Court order or otherwise or is not permitted without the consent of any other party to such license, contract or lease, this Agreement shall not be deemed to constitute an agreement assignment of any such license, contract or lease if such consent is not given or if such assignment otherwise would constitute a breach of, or cause a loss of contractual benefits under, any such license, contract or lease, and Buyer shall assume no obligations or liabilities thereunder. In such event, Sellers shall exercise their best efforts, in good faith, to obtain the consent of the other party to such license, contract or lease to permit assignment of such license, contract or lease to Buyer. Sellers shall advise Buyer promptly in writing with respect to any license, contract or lease under which it knows or has reason to believe it will not receive the required consent. Sellers shall take all reasonable actions requested by Buyer and cooperate with Buyer to obtain any new license, contract or lease (if necessary) on substantially similar terms and conditions as those under the existing license, contract or lease. Without in any way limiting Sellers obligations to obtain all consents and waivers necessary for the sale, transfer, sell assignment and delivery of the Assigned Contracts, Intellectual Property Licenses and the Transferred Assets to Buyer hereunder, if any such consent is not obtained or otherwise assign any contract, license, or other agreement or arrangement which if such assignment is not permitted irrespective of consent and the Closing hereunder is consummated, Sellers shall continue to be assigned in connection use their best efforts to obtain such consents and shall cooperate with a transaction of the type contemplated by this Agreement (collectively, the “Unassigned Contracts”). The beneficial interest in and to each Unassigned Contract shall Buyer in any event pass to Buyers, as applicable, at the Closing, and Parent and Seller covenant and agree to cooperate with Buyers in any lawful arrangement designed to provide Buyers, as applicable, Buyer with Seller’s and/or its Affiliates’ entire interest in the rights and benefits under each Unassigned Contract and to otherwise work in good faith to achieve an assignment. Seller shall remain obligated to comply with its obligations under an Unassigned Contract until such time as such Unassigned Contract (together with all rights, claims and interests with respect thereto) is assigned subject to the applicable Buyer at which time it shall become a Transferred Contractobligations) under the such licenses, contracts or leases. Seller shall retain all rights Nothing contained in the Transferred Assets solely to the limited extent necessary to perform, and for the sole purpose of performing, its obligations under any Unassigned Contract in a manner consistent with past practice. If and only to the extent either Buyer receives the economic benefits under an Unassigned Contract, such Buyer agrees to accept the burdens and perform the obligations under such Unassigned Contract as subcontractor of Seller. Furthermore, if the other party(ies) to an Unassigned Contract subsequently consents to the assignment of such contract to a Buyer (without modification thereto which is adverse to such Buyer), such Buyer shall thereupon agree to assume and perform all liabilities and obligations arising thereunder after the date of such consent, at which time such Unassigned Contract this section shall be deemed a Transferred Contract. Notwithstanding anything waiver by Buyer of its right to determine that the non-assignability of any license, contract or lease constitutes a Material Adverse Effect to the contrary set forth herein, Parent shall be responsible for any payment of any fee or penalty Acquired Assets with respect to the transactions contemplated in connection with the assignment of an Unassigned Contract to a Buyerthis Agreement.