Post-Closing. (a) Notwithstanding anything to the contrary contained in this Agreement, to the extent the sale, assignment, transfer or conveyance to Proginet of Beta America’s right, title and interest in and to the Beta America Contracts would result in a breach of said Beta America Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Beta America’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Beta America shall use commercially reasonable efforts to cooperate with Proginet in obtaining any commercially reasonable and lawful arrangements designed to provide to Proginet the full benefits of use of the respective Beta America Contracts and, provided that Proginet receives such benefit of use thereof, Proginet shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Beta America shall promptly assign, transfer, convey and deliver such Beta America Contracts to Proginet for no additional consideration. To the extent that any such Beta America Contracts cannot be transferred or the full benefits of use of any such Beta America Contracts cannot be provided to Proginet following the Closing Date, then (i) Proginet and Beta America shall enter into such arrangements for no additional consideration from Proginet (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Proginet the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents or (ii) for customers based in Europe, the Parties may mutually agree in writing to have such agreements governed by the Master Distributor Agreement. In such event, any such retained Beta America Contracts shall no longer be considered assigned pursuant to this Agreement. (b) Notwithstanding anything to the contrary contained in this Agreement, to the extent the sale, assignment, transfer or conveyance to Beta America of Proginet’s right, title and interest in and to the Proginet Contracts or the Secur-Line Contracts would result in a breach of said Proginet Contracts or Secur-Line Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Proginet’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Proginet shall use commercially reasonable efforts to cooperate with Beta America in obtaining any commercially reasonable and lawful arrangements designed to provide to Beta America the full benefits of use of the respective Proginet Contracts or Secur-Line Contracts and, provided that Beta America receives such benefit of use thereof, Beta America shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Proginet shall promptly assign, transfer, convey and deliver such Proginet Contracts or Secur-Line Contracts to Beta America for no additional consideration. To the extent that any such Proginet Contracts or Secur-Line Contracts cannot be transferred or the full benefits of use of any such Proginet Contracts or Secur-Line Contracts cannot be provided to Beta America following the Closing Date, then Beta America and Proginet shall enter into such arrangements for no additional consideration from Beta America (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Beta America the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents. [***] Confidential Treatment Requested Confidential portion omitted and filed separately with the Commission (c) Each Party will use commercially reasonable efforts to obtain consents from third-parties where such are required in accordance with the terms of the Beta America Contracts, the Proginet Contracts or the Secur-Line Contracts. (d) Upon the direction of Beta America, in lieu of assigning any Proginet Contract or Secur-Line Contract to Beta America pursuant to Section 2.1, Proginet shall assign, unless otherwise prohibited by Applicable Law, such Proginet Contract or Secur-Line Contract to one or more Affiliates of Beta America; provided, however, that Beta America shall remain subject to the terms and conditions set forth in this Agreement, including indemnification for any Agreement Default in respect of any such assignment.
Appears in 1 contract
Post-Closing. (a) Notwithstanding anything to the contrary contained in this Agreement, to the extent the sale, assignment, transfer or conveyance to Proginet A. Within 30 days of Beta America’s right, title and interest in and to the Beta America Contracts would result in a breach of said Beta America Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date or such later date agreed by the Administrative Agent in its sole discretion, Company shall, and shall cause each of its Domestic Subsidiaries to, deliver to Administrative Agent certificates (after Beta America’s commercially reasonable efforts which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to obtain them)Administrative Agent) representing all Capital Stock of MFH, this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior Inc. and Call Co pledged pursuant to such time, Beta America shall use commercially reasonable efforts to cooperate with Proginet in obtaining any commercially reasonable and lawful arrangements designed to provide to Proginet the full benefits of use Security Agreement.
B. Within 90 days of the respective Beta America Contracts and, provided that Proginet receives Closing Date or such benefit of use thereof, Proginet shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Beta America shall promptly assign, transfer, convey and deliver such Beta America Contracts to Proginet for no additional consideration. To later date agreed by the extent that any such Beta America Contracts cannot be transferred or the full benefits of use of any such Beta America Contracts cannot be provided to Proginet following the Closing Date, then Administrative Agent in its sole discretion,
(i) Proginet Company shall, and Beta America shall enter into such arrangements for no additional consideration from Proginet (including sublicensingcause each of its Domestic Subsidiaries to, subleasing or subcontracting execute and deliver to Administrative Agent the extent permitted) Foreign Pledge Agreements with respect to provide Proginet the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents or (ii) for customers based in Europe, the Parties may mutually agree in writing to have such agreements governed by the Master Distributor Agreement. In such event, any such retained Beta America Contracts shall no longer be considered assigned pursuant to this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, to the extent the sale, assignment, transfer or conveyance to Beta America of Proginet’s right, title and interest in and to the Proginet Contracts or the Secur-Line Contracts would result in a breach of said Proginet Contracts or Secur-Line Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Proginet’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Proginet shall use commercially reasonable efforts to cooperate with Beta America in obtaining any commercially reasonable and lawful arrangements designed to provide to Beta America the full benefits of use 65% of the respective Proginet Contracts Capital Stock owned by Company or Secur-Line Contracts anda Domestic Subsidiary of all Foreign Subsidiaries with respect to which Administrative Agent deems a Foreign Pledge Agreement necessary or advisable to perfect or otherwise protect the First Priority Liens granted to Administrative Agent on behalf of Lenders in such Capital Stock, provided that Beta America receives and taken all such benefit other actions under the laws of use thereof, Beta America shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Proginet shall promptly assign, transfer, convey and deliver jurisdictions as Administrative Agent may deem necessary or advisable to perfect or otherwise protect such Proginet Contracts or Secur-Line Contracts to Beta America for no additional consideration. To the extent that any such Proginet Contracts or Secur-Line Contracts cannot be transferred or the full benefits of use of any such Proginet Contracts or Secur-Line Contracts cannot be provided to Beta America following the Closing Date, then Beta America and Proginet shall enter into such arrangements for no additional consideration from Beta America (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Beta America the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents. [***] Confidential Treatment Requested Confidential portion omitted and filed separately with the Commission
(c) Each Party will use commercially reasonable efforts to obtain consents from third-parties where such are required in accordance with the terms of the Beta America Contracts, the Proginet Contracts or the Secur-Line Contracts.
(d) Upon the direction of Beta America, in lieu of assigning any Proginet Contract or Secur-Line Contract to Beta America pursuant to Section 2.1, Proginet shall assign, unless otherwise prohibited by Applicable Law, such Proginet Contract or Secur-Line Contract to one or more Affiliates of Beta AmericaLiens; provided, however, that Beta America no action shall remain subject be required to be taken by any Loan Party with respect to the terms and conditions set forth in this Agreement, including indemnification for any Agreement Default in respect Capital Stock of any Foreign Subsidiary pursuant to this subsection in the event that Company and Administrative Agent agree in good faith that the pledge of such assignmentCapital Stock would result in an unreasonable tax liability to any Loan Party or would otherwise be impracticable; and
(ii) Company shall, and shall cause each of its Subsidiaries to, deliver to Administrative Agent an original executed intercompany note of any and all Foreign Subsidiaries with Indebtedness to any Loan Party in favor of all Loan Parties, duly endorsed in a manner satisfactory to Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (PRA International)
Post-Closing. The Borrower hereby agrees that: (a) Notwithstanding anything to the contrary contained in this Agreement, to the extent the sale, assignment, transfer or conveyance to Proginet of Beta America’s right, title and interest in and to the Beta America Contracts would result in a breach of said Beta America Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Beta America’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Beta America it shall use commercially reasonable efforts to cooperate with Proginet in obtaining obtain Collateral Access Agreements at all locations where it holds any commercially reasonable Collateral and lawful arrangements designed to provide to Proginet the full benefits of use of the respective Beta America Contracts and, provided that Proginet receives such benefit of use thereof, Proginet shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Beta America shall promptly assign, transfer, convey and deliver such Beta America Contracts to Proginet for no additional consideration. To the extent that any such Beta America Contracts cannot be transferred or the full benefits of use of any such Beta America Contracts cannot be provided to Proginet following the Closing Date, then (i) Proginet and Beta America shall enter into such arrangements for no additional consideration from Proginet (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Proginet the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents or (ii) for customers based in Europe, the Parties may mutually agree in writing to have such agreements governed by the Master Distributor Agreement. In such event, any such retained Beta America Contracts shall no longer be considered assigned pursuant to this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, to the extent the sale, assignment, transfer or conveyance to Beta America within sixty (60) days of Proginet’s right, title and interest in and to the Proginet Contracts or the Secur-Line Contracts would result in a breach of said Proginet Contracts or Secur-Line Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Proginet’s commercially reasonable efforts or such later date agreed to obtain themin writing by the Administrative Agent in its sole discretion), this the Borrower shall cause the Collateral Intercreditor Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Proginet shall use commercially reasonable efforts to cooperate with Beta America in obtaining any commercially reasonable and lawful arrangements designed to provide to Beta America the full benefits of use of the respective Proginet Contracts or Secur-Line Contracts and, provided that Beta America receives such benefit of use thereof, Beta America shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Proginet shall promptly assign, transfer, convey and deliver such Proginet Contracts or Secur-Line Contracts to Beta America for no additional consideration. To the extent that any such Proginet Contracts or Secur-Line Contracts cannot be transferred or the full benefits of use of any such Proginet Contracts or Secur-Line Contracts cannot be provided to Beta America following the Closing Date, then Beta America and Proginet shall enter into such arrangements for no additional consideration from Beta America (including sublicensing, subleasing or subcontracting to the extent permittedLien Priorities) to provide Beta America the economic (taking be entered into account tax costs and benefits) and operational equivalent of obtaining such consents. [***] Confidential Treatment Requested Confidential portion omitted and filed separately with the Commission
(c) Each Party will use commercially reasonable efforts to obtain consents from third-parties where such are required in accordance with the terms of the Beta America Contracts, the Proginet Contracts or the Secur-Line Contracts.
(d) Upon the direction of Beta America, in lieu of assigning any Proginet Contract or Secur-Line Contract to Beta America pursuant to Section 2.1, Proginet shall assign, unless otherwise prohibited by Applicable Law, such Proginet Contract or Secur-Line Contract to one or more Affiliates of Beta America; provided, however, that Beta America shall remain subject to the on terms and conditions acceptable to the Administrative Agent (including, without limitation, the acknowledgement and agreement of the Borrower, the special purpose entities owned by the Borrower or owed by such special purpose entities on the execution date thereof, and each of the secured creditors thereof, that regardless of the time or order of attachment or perfection of security interests or other interests referred to herein, the time or order of filing of financing statements, or any other priority provided by law or otherwise, the Administrative Agent shall have a first and prior security interest in all now owned or existing or hereafter created, acquired or arising assets of the Loan Parties from time to time granted to it unless the Administrative Agent has provided the relevant purchaser or such purchaser’s secured party a written release of the relevant Collateral being sold or separately financed or such other arrangement as is acceptable to the Administrative Agent in its sole discretion that addresses Lien priorities to its satisfaction). If the post closing condition set forth in this Agreementclause (b) above is not satisfied, including indemnification for in addition to any Agreement Event of Default arising therefrom, the Required Lenders may, at any time with prior written notice to the Borrower, terminate the remaining Commitments and all other obligations of the Lenders hereunder on the date stated in respect such notice (which shall in no event be sooner then ten (10) Business Days after the date of such notice). On the date the Commitments are so terminated, all outstanding Obligations (including, without limitation, all principal of and accrued interest on the Loans) shall forthwith be due and payable without further demand, presentment, protest, or notice of any such assignmentkind.
Appears in 1 contract
Post-Closing. (a) Notwithstanding anything to the contrary contained in this Agreement, to the extent the sale, assignment, transfer or conveyance to Proginet of Beta America’s right, title and interest in and to the Beta America Contracts would result in a breach of said Beta America Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Beta America’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Beta America shall use commercially reasonable efforts to cooperate with Proginet in obtaining any commercially reasonable and lawful arrangements designed to provide to Proginet the full benefits of use of the respective Beta America Contracts and, provided that Proginet receives such benefit of use thereof, Proginet shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Beta America shall promptly assign, transfer, convey and deliver such Beta America Contracts to Proginet for no additional consideration. To the extent that any such Beta America Contracts cannot be transferred or the full benefits of use of any such Beta America Contracts cannot be provided to Proginet Promptly following the Closing Date, then wind up, dissolve or liquidate or cause the winding up, dissolution or liquidation of Foreign Parent. Information required to be delivered pursuant to subsections (i) Proginet and Beta America shall enter into such arrangements for no additional consideration from Proginet (including sublicensing), subleasing or subcontracting to the extent permitted) to provide Proginet the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents or (ii) for customers based in Europe, the Parties may mutually agree in writing and (v) of Section 5.01(j) above shall be deemed to have been delivered if such agreements governed information, or one or more annual or quarterly or other reports or proxy statements containing such information, shall have been posted and available on the website of the Securities and Exchange Commission at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ (and a confirming electronic correspondence is delivered or caused to be delivered by the Master Distributor Agreementapplicable Borrower to the Administrative Agent providing notice of such availability). In such event, any such retained Beta America Contracts shall no longer Information required to be considered assigned furnished pursuant to this Agreement.
(b) Notwithstanding anything Section 5.01 may also be furnished by electronic communications pursuant to procedures approved by the Administrative Agent. The Borrowers hereby acknowledge that the Administrative Agent and/or the Joint Lead Arrangers will make available to the contrary contained in this AgreementLenders materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar secure electronic system (the “Platform”). Certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the extent Borrowers or their respective Affiliates, or the salerespective securities of any of the foregoing, assignment, transfer or conveyance and who may be engaged in investment and other market-related activities with respect to Beta America of Proginet’s right, title such Persons’ securities. The Borrowers hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and interest in conspicuously marked “PUBLIC”; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat the Borrower Materials as not containing any material non-public information with respect to the Proginet Contracts Borrowers or the Secur-Line Contracts would result in a breach their securities for purposes of said Proginet Contracts or Secur-Line Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth United States Federal and state securities laws (60th) day following the Closing Date (after Proginet’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Proginet shall use commercially reasonable efforts to cooperate with Beta America in obtaining any commercially reasonable and lawful arrangements designed to provide to Beta America the full benefits of use of the respective Proginet Contracts or Secur-Line Contracts and, provided that Beta America receives such benefit of use thereof, Beta America shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Proginet shall promptly assign, transfer, convey and deliver such Proginet Contracts or Secur-Line Contracts to Beta America for no additional consideration. To the extent that any such Proginet Contracts or Secur-Line Contracts cannot be transferred or the full benefits of use of any such Proginet Contracts or Secur-Line Contracts cannot be provided to Beta America following the Closing Date, then Beta America and Proginet shall enter into such arrangements for no additional consideration from Beta America (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Beta America the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents. [***] Confidential Treatment Requested Confidential portion omitted and filed separately with the Commission
(c) Each Party will use commercially reasonable efforts to obtain consents from third-parties where such are required in accordance with the terms of the Beta America Contracts, the Proginet Contracts or the Secur-Line Contracts.
(d) Upon the direction of Beta America, in lieu of assigning any Proginet Contract or Secur-Line Contract to Beta America pursuant to Section 2.1, Proginet shall assign, unless otherwise prohibited by Applicable Law, such Proginet Contract or Secur-Line Contract to one or more Affiliates of Beta America; provided, however, that Beta America shall remain subject to the terms and conditions extent the Borrower Materials constitute Information, they shall be treated as set forth in this AgreementSection 9.08); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designed “Public Side Information”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, including indemnification for the Borrowers shall be under no obligation to ▇▇▇▇ any Agreement Default in respect of any such assignmentBorrower Materials “PUBLIC.”
Appears in 1 contract
Post-Closing. (a) Notwithstanding anything Each Credit Party shall deliver to the contrary contained in this AgreementUS Administrative Agent each of the items set forth on Schedule 5.6 attached hereto with respect to each of STS Holdings Inc., a Nevada corporation, NCS 107 International LLC, a Texas limited liability company, NCS International 2, LLC, a Texas limited liability company within 30 days after the Amendment No. 1 Effective Date (or such later date acceptable to the extent US Administrative Agent in its sole discretion) instead of within the sale, assignment, transfer or conveyance to Proginet of Beta America’s right, title and interest time requirements set forth in and to the Beta America Contracts would result in a breach of said Beta America Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Beta America’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Beta America shall use commercially reasonable efforts to cooperate with Proginet in obtaining any commercially reasonable and lawful arrangements designed to provide to Proginet the full benefits of use of the respective Beta America Contracts and, provided that Proginet receives such benefit of use thereof, Proginet shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Beta America shall promptly assign, transfer, convey and deliver such Beta America Contracts to Proginet for no additional consideration. To the extent that any such Beta America Contracts cannot be transferred or the full benefits of use of any such Beta America Contracts cannot be provided to Proginet following the Closing Date, then (i) Proginet and Beta America shall enter into such arrangements for no additional consideration from Proginet (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Proginet the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents or (ii) for customers based in Europe, the Parties may mutually agree in writing to have such agreements governed by the Master Distributor Agreement. In such event, any such retained Beta America Contracts shall no longer be considered assigned pursuant to this AgreementSchedule 5.6.
(b) Notwithstanding anything Within 10 Business Days after the Amendment No. 1 Effective Date (or such later date acceptable to the contrary contained US Administrative Agent in this Agreementits sole discretion), the Credit Parties shall deliver, or cause to be delivered, to the extent US Administrative Agent the sale, assignment, transfer or conveyance to Beta America original stock certificates evidencing all of Proginet’s right, title and interest the Equity Interests of STS Holdings Inc. in and the name of the holder of such Equity Interests together with stock powers executed in blank (in form previously delivered to the Proginet Contracts US Administrative Agent for the stock certificates held in the name of the predecessor-in-interest to such holder.
(c) Within 45 days after the Amendment No. 1 Effective Date (or the Secur-Line Contracts would result in a breach of said Proginet Contracts or Secur-Line Contracts or would require any third-party consents which shall not have been obtained prior such later date acceptable to the sixtieth (60th) day following US Administrative Agent in its sole discretion), the Closing Date (after Proginet’s Credit Parties shall have used commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Proginet shall use commercially reasonable efforts to cooperate with Beta America in obtaining any commercially reasonable and lawful arrangements designed to provide to Beta America the full benefits of use of the respective Proginet Contracts or Secur-Line Contracts and, provided that Beta America receives such benefit of use thereof, Beta America shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Proginet shall promptly assign, transfer, convey seek and deliver such Proginet Contracts a lien waiver or Secur-Line Contracts subordination agreement in form and substance reasonably satisfactory to Beta America the US Administrative Agent for no additional consideration. To the extent that each leased premises on which any such Proginet Contracts equipment or Secur-Line Contracts cannot be transferred or the full benefits of use Inventory of any Credit Party is located (other such Proginet Contracts premises covered under Section 6.14(a)(iv) or Secur-Line Contracts cannot be provided to Beta America following the Closing Date, then Beta America and Proginet shall enter into such arrangements for no additional consideration from Beta America (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Beta America the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents. [***] Confidential Treatment Requested Confidential portion omitted and filed separately with the Commission
(c) Each Party will use commercially reasonable efforts to obtain consents from third-parties where such are required in accordance with the terms of the Beta America Contracts, the Proginet Contracts or the Secur-Line Contractsvi)).
(d) Upon Within 5 Business Days after the direction Amendment No. 1 Effective Date (or such later date acceptable to the US Administrative Agent in its sole discretion), the Credit Parties shall deliver, or cause to be delivered, to the US Administrative Agent the original promissory note dated as of Beta AmericaDecember 16, 2019 made by Aero Lift Machine LLC, a Texas limited liability company in lieu favor of assigning any Proginet Contract or Secur-Line Contract to Beta America pursuant to Section 2.1, Proginet shall assign, unless otherwise prohibited by Applicable Law, such Proginet Contract or Secur-Line Contract to one or more Affiliates of Beta America; provided, however, that Beta America shall remain subject the Credit Parties together with an allonge or other endorsement (in form and substance reasonably satisfactory to the terms and conditions set forth US Administrative Agent) for such promissory note executed by the holder(s) of such promissory note in this Agreement, including indemnification for any Agreement Default in respect favor of any such assignmentthe US Administrative Agent.
Appears in 1 contract
Post-Closing. (a) Notwithstanding anything No later than 15 days after the Closing Date, the Borrower shall deliver a schedule to the contrary contained in this Agreement, Administrative Agent setting forth the correct address of each real property that was owned by the Borrower or any Guarantor as of the Closing Date.
(i) The Borrower agrees to deliver to the extent Collateral Agent as soon as practicable but in no event later than 45 days after the saleClosing Date, assignmentreplacement stock certificates evidencing Equity Interests in each entity referred to in paragraph 1 of Schedule 11, transfer together with stock powers executed in blank or conveyance other appropriate instruments of pledge relating thereto.
(ii) The Borrower agrees to Proginet of Beta America’s right, title and interest in and deliver to the Beta America Contracts would result Collateral Agent as soon as practicable but in a breach no event later than 60 days after the Closing Date, stock certificates evidencing Equity Interests in each entity referred to in paragraph 2 of said Beta America Contracts Schedule 11, together with stock powers executed in blank or would require other appropriate instruments of pledge relating thereto.
(iii) Notwithstanding the foregoing provisions of this clause (b), if despite the Borrower's best efforts, the Borrower fails to deliver any third-party consents which of the foregoing items to the Collateral Agent within the time periods specified above, the Collateral Agent may (but shall not have been obtained prior be obligated to) consent to additional time periods for such delivery.
(c) If at any time the granting of a pledge or other security interest over the Equity Interests in Cornerstone is not prohibited by Cayman Islands law, Vencor shall ensure that a pledge or such other security interest over such Equity Interests is granted to the sixtieth (60th) day following Collateral Agent for the Closing Date (after Beta America’s commercially reasonable efforts benefit of the Lenders and that stock certificates evidencing such Equity Interests are promptly delivered to obtain them), this Agreement shall not constitute a sale, assignment, the Collateral Agent together with signed stock powers or other appropriate instruments of transfer or conveyance thereofrelating thereto. If consents are not obtained from third-parties prior Prior to such time, Beta America Vencor shall use commercially reasonable efforts ensure that no Lien over such Equity Interests is granted to cooperate with Proginet in obtaining any commercially reasonable and lawful arrangements designed to provide to Proginet the full benefits of use of the respective Beta America Contracts and, provided that Proginet receives such benefit of use thereof, Proginet shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Beta America shall promptly assign, transfer, convey and deliver such Beta America Contracts to Proginet for no additional consideration. To the extent that any such Beta America Contracts cannot be transferred or the full benefits of use of any such Beta America Contracts cannot be provided to Proginet following the Closing Date, then (i) Proginet and Beta America shall enter into such arrangements for no additional consideration from Proginet (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Proginet the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents or (ii) for customers based in Europe, the Parties may mutually agree in writing to have such agreements governed by the Master Distributor Agreement. In such event, any such retained Beta America Contracts shall no longer be considered assigned pursuant to this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, to the extent the sale, assignment, transfer or conveyance to Beta America of Proginet’s right, title and interest in and to the Proginet Contracts or the Secur-Line Contracts would result in a breach of said Proginet Contracts or Secur-Line Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Proginet’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Proginet shall use commercially reasonable efforts to cooperate with Beta America in obtaining any commercially reasonable and lawful arrangements designed to provide to Beta America the full benefits of use of the respective Proginet Contracts or Secur-Line Contracts and, provided that Beta America receives such benefit of use thereof, Beta America shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Proginet shall promptly assign, transfer, convey and deliver such Proginet Contracts or Secur-Line Contracts to Beta America for no additional consideration. To the extent that any such Proginet Contracts or Secur-Line Contracts cannot be transferred or the full benefits of use of any such Proginet Contracts or Secur-Line Contracts cannot be provided to Beta America following the Closing Date, then Beta America and Proginet shall enter into such arrangements for no additional consideration from Beta America (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Beta America the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents. [***] Confidential Treatment Requested Confidential portion omitted and filed separately with the Commission
(c) Each Party will use commercially reasonable efforts to obtain consents from third-parties where such are required in accordance with the terms of the Beta America Contracts, the Proginet Contracts or the Secur-Line ContractsPerson.
(d) Upon (i) Vencor shall (A) ensure that the direction of Beta America, in lieu of assigning any Proginet Contract or Secur-Line Contract to Beta America pursuant to Section 2.1, Proginet shall assign, unless otherwise prohibited by Applicable Law, such Proginet Contract or Secur-Line Contract to one or more Affiliates of Beta America; provided, however, that Beta America shall remain subject Liens and title defects listed on the schedule to the terms Encumbrance Letter are paid, discharged or removed in accordance with the provisions of, and conditions set forth in this Agreementwithin the time periods (if any) specified in, including indemnification for any Agreement Default in respect the Encumbrance Letter and (B) comply with the other provisions of any such assignmentthe Encumbrance Letter.
Appears in 1 contract
Post-Closing. From and after the Closing, each Company Securityholder shall not, and shall cause its respective Representative and Affiliates not to, disclose any Proprietary Information to any Person in any manner whatsoever other than (aA) Notwithstanding anything to the contrary contained in this AgreementBuyer and its Affiliates, (B) to its Representatives, to the extent the sale, assignment, transfer or conveyance to Proginet of Beta America’s right, title (and interest in and only to the Beta America Contracts would result extent) (x) necessary to permit such Representatives to assist the receiving Party in a breach connection with the transactions contemplated hereby and any matters arising under this Agreement or any Related Agreement (including for purposes of said Beta America Contracts complying with Tax reporting obligations of such Company Securityholder under applicable Law in connection with such matters), (y) such Representative has been informed of the confidential nature of the Proprietary Information and (z) such Representative is subject to confidentiality duties or would require any third-party consents which shall not have been obtained obligations to the receiving Party no less restrictive than the terms and conditions of this Agreement, or (C) as required by applicable Law or Order; provided, however, that (in the case of disclosures made pursuant to clause (C)) to the extent commercially reasonably possible and permitted by applicable Law, prior to making such disclosure, such Company Securityholder shall provide Buyer with: (I) prompt written notice of such requirement so that Buyer may, at its sole cost and expense, seek a protective order or other remedy and (II) reasonable assistance, at Buyer’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitation of disclosure. In the sixtieth (60th) day following event that after providing such notice and assistance disclosure is still required by applicable Law or Order, the Closing Date (after Beta America’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior receiving party subject to such time, Beta America Law or Order shall disclose no more than that portion of the Proprietary Information specifically required and shall use commercially reasonable efforts to cooperate with Proginet obtain assurance from the applicable recipient that such Proprietary Information be afforded confidential treatment. Each Company Securityholder agrees to be liable for any breach of this Section 8.4(a)(i) by such Company Securityholder’s Representative and Affiliates. Notwithstanding anything contained herein to the contrary, no Institutional Investor shall be required to inform or notify Buyer or a Company Entity or any other Person of any disclosure of Proprietary Information made to or requested by a bank examiner, regulatory examiner or self-regulatory examiner in obtaining any commercially reasonable the course of such examiner’s examination, inspection or audit, and lawful arrangements designed to provide to Proginet the full benefits of use of the respective Beta America Contracts and, provided that Proginet receives such benefit of use thereof, Proginet shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Beta America shall promptly assign, transfer, convey and deliver such Beta America Contracts to Proginet for no additional consideration. To the extent that any such Beta America Contracts candisclosure shall not be transferred or the full benefits of use of any such Beta America Contracts cannot be provided to Proginet following the Closing Date, then (i) Proginet and Beta America shall enter into such arrangements for no additional consideration from Proginet (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Proginet the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents or (ii) for customers based in Europe, the Parties may mutually agree in writing to have such agreements governed by the Master Distributor Agreement. In such event, any such retained Beta America Contracts shall no longer be considered assigned pursuant to this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, to the extent the sale, assignment, transfer or conveyance to Beta America of Proginet’s right, title and interest in and to the Proginet Contracts or the Secur-Line Contracts would result in deemed a breach of said Proginet Contracts or Secur-Line Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Proginet’s commercially reasonable efforts to obtain themthis Section 8.4(a)(i), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Proginet shall use commercially reasonable efforts to cooperate with Beta America in obtaining any commercially reasonable and lawful arrangements designed to provide to Beta America the full benefits of use of the respective Proginet Contracts or Secur-Line Contracts and, provided that Beta America receives such benefit of use thereof, Beta America shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Proginet shall promptly assign, transfer, convey and deliver such Proginet Contracts or Secur-Line Contracts to Beta America for no additional consideration. To the extent that any such Proginet Contracts or Secur-Line Contracts cannot be transferred or the full benefits of use of any such Proginet Contracts or Secur-Line Contracts cannot be provided to Beta America following the Closing Date, then Beta America and Proginet shall enter into such arrangements for no additional consideration from Beta America (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Beta America the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents. [***] Confidential Treatment Requested Confidential portion omitted and filed separately with the Commission
(c) Each Party will use commercially reasonable efforts to obtain consents from third-parties where such are required in accordance with the terms of the Beta America Contracts, the Proginet Contracts or the Secur-Line Contracts.
(d) Upon the direction of Beta America, in lieu of assigning any Proginet Contract or Secur-Line Contract to Beta America pursuant to Section 2.1, Proginet shall assign, unless otherwise prohibited by Applicable Law, such Proginet Contract or Secur-Line Contract to one or more Affiliates of Beta America; provided, however, that Beta America shall remain subject to the terms and conditions set forth in this Agreement, including indemnification for any Agreement Default in respect of any such assignment.
Appears in 1 contract
Sources: Securities Purchase Agreement (Sensata Technologies Holding PLC)
Post-Closing. (a) Notwithstanding anything to the contrary contained in this Agreement, to the extent the sale, assignment, transfer or conveyance to Proginet of Beta America’s right, title and interest in and to the Beta America Contracts would result in a breach of said Beta America Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Beta America’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Beta America shall use commercially reasonable efforts to cooperate with Proginet in obtaining any commercially reasonable and lawful arrangements designed to provide to Proginet the full benefits of use of the respective Beta America Contracts and, provided that Proginet receives such benefit of use thereof, Proginet shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Beta America shall promptly assign, transfer, convey and deliver such Beta America Contracts to Proginet for no additional consideration. To the extent that any such Beta America Contracts cannot be transferred or the full benefits of use of any such Beta America Contracts cannot be provided to Proginet following the Closing Date, then (i) Proginet and Beta America shall enter into such arrangements for no additional consideration from Proginet (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Proginet the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents or (ii) for customers based in Europe, the Parties may mutually agree in writing to have such agreements governed by the Master Distributor Agreement. In such event, any such retained Beta America Contracts shall no longer be considered assigned pursuant to this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, to the extent the sale, assignment, transfer or conveyance to Beta America of Proginet’s right, title and interest in and to the Proginet Contracts or the Secur-Line Contracts would result in a breach of said Proginet Contracts or Secur-Line Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Proginet’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Proginet shall use commercially reasonable efforts to cooperate with Beta America in obtaining any commercially reasonable and lawful arrangements designed to provide to Beta America the full benefits of use of the respective Proginet Contracts or Secur-Line Contracts and, provided that Beta America receives such benefit of use thereof, Beta America shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Proginet shall promptly assign, transfer, convey and deliver such Proginet Contracts or Secur-Line Contracts to Beta America for no additional consideration. To the extent that any such Proginet Contracts or Secur-Line Contracts cannot be transferred or the full benefits of use of any such Proginet Contracts or Secur-Line Contracts cannot be provided to Beta America following the Closing Date, then Beta America and Proginet shall enter into such arrangements for no additional consideration from Beta America (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Beta America the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents. [***] Confidential Treatment Requested Confidential portion omitted and filed separately with the CommissionCommission DAL02:525849.7
(c) Each Party will use commercially reasonable efforts to obtain consents from third-parties where such are required in accordance with the terms of the Beta America Contracts, the Proginet Contracts or the Secur-Line Contracts.
(d) Upon the direction of Beta America, in lieu of assigning any Proginet Contract or Secur-Line Contract to Beta America pursuant to Section 2.1, Proginet shall assign, unless otherwise prohibited by Applicable Law, such Proginet Contract or Secur-Line Contract to one or more Affiliates of Beta America; provided, however, that Beta America shall remain subject to the terms and conditions set forth in this Agreement, including indemnification for any Agreement Default in respect of any such assignment.
Appears in 1 contract
Post-Closing. (a) Notwithstanding anything In addition to the contrary contained in this Agreementforegoing, to the extent the saleeach of Viceroy, assignment, transfer or conveyance to Proginet of Beta America’s right, title VMC and interest in HoldCo agrees and to the Beta America Contracts would result in a breach of said Beta America Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following covenants with Vista and Granges that as soon as practicable after the Closing Date (after Beta America’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained and in any event no later than three months from third-parties prior to such time, Beta America shall use commercially reasonable efforts to cooperate with Proginet in obtaining any commercially reasonable and lawful arrangements designed to provide to Proginet the full benefits of use of the respective Beta America Contracts and, provided that Proginet receives such benefit of use thereof, Proginet shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Beta America shall promptly assign, transfer, convey and deliver such Beta America Contracts to Proginet for no additional consideration. To the extent that any such Beta America Contracts cannot be transferred or the full benefits of use of any such Beta America Contracts cannot be provided to Proginet following the Closing Date, then it shall cause:
(ia) Proginet and Beta America shall enter into the filing with the applicable Mexican Governmental Authorities of any required instrument or document in order to register in the name of Paredones such arrangements for no additional consideration from Proginet (including sublicensing, subleasing or subcontracting to mining concessions comprising the extent permitted) to provide Proginet Mineral Rights which have not been registered in the economic (taking into account tax costs and benefits) and operational equivalent name of obtaining such consents or (ii) for customers based in Europe, Paredones as of the Parties may mutually agree in writing to have such agreements governed by the Master Distributor Agreement. In such event, any such retained Beta America Contracts shall no longer be considered assigned pursuant to this Agreement.Closing Date;
(b) Notwithstanding anything to the contrary contained in this Agreementvalid execution or endorsement of all deeds, to the extent the bills of sale, assignmenttransfers and assignments, including any required consents and approvals listed in SCHEDULE "H", in form and substance acceptable to Vista, as Vista may reasonably require and as are necessary to effectively transfer or conveyance and convey title to Beta America of Proginet’s rightany Assets which, title and interest in and to the Proginet Contracts or the Secur-Line Contracts would result in a breach of said Proginet Contracts or Secur-Line Contracts or would require any third-party consents which shall have not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Proginet’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Proginet shall use commercially reasonable efforts to cooperate with Beta America in obtaining any commercially reasonable and lawful arrangements designed to provide to Beta America the full benefits of use of the respective Proginet Contracts or Secur-Line Contracts and, provided that Beta America receives such benefit of use thereof, Beta America shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Proginet shall promptly assign, transfer, convey and deliver such Proginet Contracts or Secur-Line Contracts to Beta America for no additional consideration. To the extent that any such Proginet Contracts or Secur-Line Contracts cannot be formally transferred or the full benefits conveyed to Paredones as of use of any such Proginet Contracts or Secur-Line Contracts cannot be provided to Beta America following the Closing Date, then Beta America including, without limitation, the Lands described in the agreements listed as items 2 to 7 of SCHEDULE "B", the Surface Rights Agreements described in items 14 and Proginet shall enter into such arrangements for no additional consideration from Beta America (including sublicensing, subleasing or subcontracting to 15 of part B of SCHEDULE "C" and the extent permitted) to provide Beta America the economic (taking into account tax costs and benefits) and operational equivalent water concession described in item 1 of obtaining such consents. [***] Confidential Treatment Requested Confidential portion omitted and filed separately with the Commissionpart B of SCHEDULE "D";
(c) Each Party will use commercially reasonable efforts the delivery to obtain consents from third-parties where such location or locations as instructed by Vista in writing of any Assets which are required not in accordance with the terms possession or control of Paredones as of the Beta America ContractsClosing Date including, but not limited to, the Proginet Contracts or the Secur-Line Contracts.Technical Data located in Viceroy's offices in Vancouver, British Columbia; and
(d) Upon the direction cancellation of Beta America, in lieu the registration at the Public Registry of assigning any Proginet Mining of the Contract or Secur-Line Contract to Beta America pursuant to Section 2.1, Proginet shall assign, unless otherwise prohibited by Applicable Law, such Proginet Contract or Secur-Line Contract to one or more Affiliates of Beta America; provided, however, that Beta America shall remain subject Acquisition and Development of mining rights entered into with respect to the terms mining concessions San Antonio, La Rica, Tocopilla, ▇▇▇▇▇, ▇▇▇▇▇ and conditions set forth in La Dificultad. VMC, HoldCo and Viceroy acknowledge that Vista and Granges are relying upon the foregoing covenants and agreements as an inducement to enter into this Agreement and to consummate the transactions contemplated by this Agreement, including indemnification for any Agreement Default in respect of any such assignment.
Appears in 1 contract
Post-Closing. Following the Closing, the Purchaser hereby covenants and agrees as follows:
(a) Notwithstanding anything to the contrary contained in this Agreement, to the extent the sale, assignment, transfer or conveyance to Proginet of Beta America’s right, title and interest in and to the Beta America Contracts would result in a breach of said Beta America Contracts or would require any third-party consents which The Purchaser shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Beta America’s use its commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Beta America shall use commercially reasonable efforts to cooperate with Proginet in obtaining any commercially reasonable and lawful arrangements designed to provide to Proginet diligently market the full benefits of use of the respective Beta America Contracts Multiplicity Products; and, provided that Proginet receives such benefit of use thereof, Proginet shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Beta America shall promptly assign, transfer, convey and deliver such Beta America Contracts to Proginet for no additional consideration. To the extent that any such Beta America Contracts cannot be transferred or the full benefits of use of any such Beta America Contracts cannot be provided to Proginet following the Closing Date, then (i) Proginet and Beta America shall enter into such arrangements for no additional consideration from Proginet (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Proginet the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents or (ii) for customers based in Europe, the Parties may mutually agree in writing to have such agreements governed by the Master Distributor Agreement. In such event, any such retained Beta America Contracts shall no longer be considered assigned pursuant to this Agreement.
(b) Notwithstanding anything to The Purchaser hereby gives the contrary contained Company, in this Agreement, to the extent the sale, assignment, transfer or conveyance to Beta America event of Proginet’s right, title and interest in and to the Proginet Contracts or the Secur-Line Contracts would result in a breach of said Proginet Contracts or Secur-Line Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Proginet’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Proginet shall use commercially reasonable efforts to cooperate with Beta America in obtaining any commercially reasonable and lawful arrangements designed to provide to Beta America the full benefits of use sale of the respective Proginet Contracts portion of the Purchaser's business comprising the Multiplicity Products, whether sold on a stand-alone basis or Secur-Line Contracts andas part of a sale of a group of related businesses, provided the right of first refusal ("▇▇▇▇") to purchase the assets proposed to be sold, on the same terms and conditions which the Purchaser proposes to accept from any other BONA FIDE offeror. The Purchaser shall give the Company prompt written notice that Beta America receives such benefit it contemplates sale of use thereof, Beta America shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Proginet shall promptly assign, transfer, convey the Business and deliver such Proginet Contracts or Secur-Line Contracts to Beta America for no additional consideration. To the extent that any such Proginet Contracts or Secur-Line Contracts cannot be transferred or the full benefits of use terms and conditions of any such Proginet Contracts bona fide offer which it finds satisfactory. The Company shall have twenty (20) days following receipt of such notice within which to give the Purchaser written notice of its intent to exercise the ▇▇▇▇. If the Company does not give notice of its exercise of the ▇▇▇▇ together with a non-refundable deposit in the amount of ten percent (10%) of the cash portion of the purchase price within such twenty (20) day period, then the ▇▇▇▇ will become null and void as to that offer only and the Purchaser may sell the assets proposed to be sold on substantially the same terms and conditions offered to the Company to any other offeror within the next succeeding six (6) month period. If the Purchaser intends to sell the assets on substantially different terms and conditions or Secur-Line Contracts canafter the six (6) month period, the ▇▇▇▇ shall apply to any such subsequent offering. If the Company gives written notice of its exercise of the ▇▇▇▇ at any time and then defaults in the exercise thereof, the ▇▇▇▇ shall become null and void and the Company shall forfeit its deposit. For purposes hereof, the term "bona fide offeror" means an entity which is not be provided to Beta America following related to, affiliated with or under common control with the Purchaser or its parent company (an "Affiliate"). The ▇▇▇▇ shall continue for a period of five (5) years from the Closing Date. The ▇▇▇▇ shall be binding on the Purchaser, then Beta America and Proginet its Parent Company, all Affiliates, successors and assigns thereof including any estate created by any bankruptcy or reorganization (collectively, "Purchaser Parties"), and the ▇▇▇▇ shall enter into such arrangements for no additional consideration from Beta America (including sublicensing, subleasing not be affected by any [continued on next page] bankruptcy or subcontracting to reorganization of the extent permitted) to provide Beta America the economic (taking into account tax costs and benefits) and operational equivalent Purchaser Parties or any of obtaining such consents. [***] Confidential Treatment Requested Confidential portion omitted and filed separately with the Commissionthem or their permitted assigns,.
(c) Each Party will use commercially reasonable efforts to obtain consents from third-parties where such are required Upon the occurrence of any Extraordinary Event, as defined in accordance with the terms of the Beta America Contracts, the Proginet Contracts or the Secur-Line Contracts.
subparagraph (d) Upon hereof, and the direction of Beta Americadeclaration thereof by the Company in writing, within six (6) months after the occurrence thereof, Purchaser shall provide to the Company, in lieu of assigning any Proginet Contract or Securfurther Earn-Line Contract to Beta America pursuant to Section 2.1, Proginet shall assign, unless otherwise prohibited by Applicable Law, such Proginet Contract or Secur-Line Contract to one or more Affiliates of Beta America; provided, however, that Beta America shall remain subject Out payments to the terms Company, an irrevocable permanent non-royalty bearing license to manufacture, sell, sublicense, lease, and conditions set forth in this Agreementuse the Multiplicity Products, including indemnification for any Agreement Default in respect and the Company shall have the further right to (on proof of the occurrence of any Extraordinary Event and such assignmenttimely declaration) enjoin and permanently preclude the manufacture, sale and use of the Multiplicity Products by Purchaser Parties, and their successors and assigns.
Appears in 1 contract
Sources: Assets Purchase Agreement (Network Computing Devices Inc)
Post-Closing. (a) Notwithstanding anything Immediately after the Effective Time on the Effective Date, (i) the Initial Subsidiary Guarantors will execute and deliver to the contrary contained in this Trustee and the Collateral Agent the Effective Date Supplemental Indenture, (ii) the Company and the Initial Subsidiary Guarantors that are Domestic Subsidiaries will execute and deliver to the Collateral Agent the Security Agreement, (iii) the Initial Subsidiary Guarantors that are English Guarantors will execute and deliver to the Collateral Agent the English Debenture, (iv) the English Share Pledge will be executed and delivered to the Collateral Agent, (v) the Company and each Initial Subsidiary Guarantor shall execute and deliver counterparts of the Intercreditor Agreement and a perfection certificate, each dated as of the Effective Date, (vi) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions necessary to perfect and protect the Liens created under the Security Agreement on assets of the Company and each Initial Subsidiary Guarantor that is a Domestic Subsidiary, covering the Collateral described in the Security Agreement shall be delivered to the Collateral Agent and (vii) all other filings and other similar actions required in connection with the perfection of security interests in the Collateral as and to the extent the sale, assignment, transfer or conveyance to Proginet of Beta America’s right, title and interest in and to the Beta America Contracts would result in a breach of said Beta America Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Beta America’s commercially reasonable efforts to obtain them), contemplated by this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Beta America shall use commercially reasonable efforts to cooperate with Proginet in obtaining any commercially reasonable and lawful arrangements designed to provide to Proginet the full benefits of use of the respective Beta America Contracts and, provided that Proginet receives such benefit of use thereof, Proginet shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Beta America shall promptly assign, transfer, convey and deliver such Beta America Contracts to Proginet for no additional consideration. To the extent that any such Beta America Contracts cannot be transferred Indenture or the full benefits of use of Collateral Documents (in each case, subject to any such Beta America Contracts cannot grace periods specified therein) shall be provided to Proginet following the Closing Date, then (i) Proginet and Beta America shall enter into such arrangements for no additional consideration from Proginet (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Proginet the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents or (ii) for customers based in Europe, the Parties may mutually agree in writing to have such agreements governed by the Master Distributor Agreement. In such event, any such retained Beta America Contracts shall no longer be considered assigned pursuant to this Agreementcompleted.
(b) Notwithstanding anything Within ninety (90) days after the Effective Date, the Company shall deliver to the contrary contained Collateral Agent customary insurance certificates and endorsements in this Agreement, form reasonably satisfactory to the extent Collateral Agent, naming the saleCollateral Agent, assignment, transfer or conveyance to Beta America of Proginet’s right, title and interest in and to the Proginet Contracts or the Secur-Line Contracts would result in a breach of said Proginet Contracts or Secur-Line Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Proginet’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Proginet shall use commercially reasonable efforts to cooperate with Beta America in obtaining any commercially reasonable and lawful arrangements designed to provide to Beta America the full benefits of use on behalf of the respective Proginet Contracts Notes Secured Parties, as the Company’s mortgagee and/or loss payee, as applicable, on property and casualty insurance policies and as an additional insured on all general liability insurance policies maintained by the Company or Secur-Line Contracts and, provided that Beta America receives such benefit any of use thereof, Beta America shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Proginet shall promptly assign, transfer, convey and deliver such Proginet Contracts its direct or Secur-Line Contracts to Beta America for no additional consideration. To the extent that any such Proginet Contracts or Secur-Line Contracts cannot be transferred or the full benefits of use of any such Proginet Contracts or Secur-Line Contracts cannot be provided to Beta America following the Closing Date, then Beta America and Proginet shall enter into such arrangements for no additional consideration from Beta America (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Beta America the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents. [***] Confidential Treatment Requested Confidential portion omitted and filed separately with the Commissionindirect Subsidiaries.
(c) Each Party will use commercially reasonable efforts To the extent not previously delivered to obtain consents from thirdthe Senior Credit Facility Agent, on or prior to the date that is ninety (90) days following the Effective Date (or such later date as the Senior Credit Facility Agent may agree in its sole discretion), the Company shall deliver, or cause to be delivered, to the Senior Credit Facility Agent, all Pledged Collateral (as defined in the Security Agreement) required to be pledged as Collateral duly indorsed by an effective indorsement (within the meaning of Section 8-parties where such are required in accordance with the terms 107 of the Beta America ContractsUCC), the Proginet Contracts or the Secur-Line Contracts.
(d) Upon the direction accompanied by share transfer powers or other instruments of Beta Americatransfer duly endorsed by such an effective endorsement, in lieu of assigning any Proginet Contract or Secur-Line Contract to Beta America pursuant to Section 2.1, Proginet shall assign, unless otherwise prohibited by Applicable Law, such Proginet Contract or Secur-Line Contract to one or more Affiliates of Beta America; provided, however, that Beta America shall remain subject to the terms and conditions set forth in this Agreement, including indemnification for any Agreement Default in respect of any such assignmentblank.
Appears in 1 contract
Sources: Indenture (Fortrea Holdings Inc.)
Post-Closing. (a) Notwithstanding anything After the Effective Time, neither Buyer nor any of its Affiliates or Representatives shall undertake a Restricted Activity or cause or permit a Restricted Activity to the contrary contained be undertaken except as permitted in this AgreementSection 5.13.2. Buyer and its Affiliates and Representatives may undertake a Restricted Activity only on Fee Parcels, or cause or permit a Restricted Activity to be undertaken only on Fee Parcels, but only to the extent (1) required by an Environmental Law; (2) in response to a specific request of a Governmental Authority; (3) required during the salenormal course of business arising out of repairs, assignmentmodifications, transfer maintenance or conveyance to Proginet of Beta Americaconstruction activities that are conducted consistent with Buyer’s right, title Intended Use and interest in it is reasonably determined by Seller (or Seller’s Affiliates or Representatives) that it will not materially impact NewPage-WI’s adjacent paper manufacturing facilities and to the Beta America Contracts would result in a breach of said Beta America Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Beta America’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Beta America shall use commercially reasonable efforts to cooperate with Proginet in obtaining any commercially reasonable and lawful arrangements designed to provide to Proginet the full benefits of use of the respective Beta America Contracts and, provided that Proginet receives such benefit of use thereof, Proginet shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Beta America shall promptly assign, transfer, convey and deliver such Beta America Contracts to Proginet for no additional consideration. To the extent that any such Beta America Contracts cannot be transferred or the full benefits of use of any such Beta America Contracts cannot be provided to Proginet following the Closing Date, then (i) Proginet and Beta America shall enter into such arrangements for no additional consideration from Proginet (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Proginet the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents equipment; or (ii4) for customers based in Europedue diligence conducted by a future prospective purchaser, the Parties may mutually agree in writing to have investor or financing source provided such agreements governed activity is conducted on a Remote Parcel and it is reasonably determined by the Master Distributor AgreementSeller (or Seller’s Affiliates or Representatives) that it will not materially impact NewPage-WI’s adjacent paper manufacturing facilities and equipment (each a “Permitted Restricted Activity”). In such eventthe event Seller (or Seller’s Affiliates or Representatives) reasonably determines that the proposed activity to be undertaken under Section 5.13.2(3) or 5.13.2(4) will materially impact NewPage-WI’s adjacent paper manufacturing facilities, any such retained Beta America Contracts shall no longer be considered assigned pursuant as indicated by Seller’s written objection to this Agreement.
Buyer within ten (b10) Notwithstanding anything to the contrary contained in this Agreement, to the extent the sale, assignment, transfer or conveyance to Beta America Business Days after Seller’s receipt of Proginet’s right, title and interest in and to the Proginet Contracts or the Secur-Line Contracts would result in a breach of said Proginet Contracts or Secur-Line Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Proginet’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained written notification from third-parties prior to such time, Proginet shall use commercially reasonable efforts to cooperate with Beta America in obtaining any commercially reasonable and lawful arrangements designed to provide to Beta America the full benefits of use of the respective Proginet Contracts or Secur-Line Contracts and, provided that Beta America receives such benefit of use thereof, Beta America shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Proginet shall promptly assign, transfer, convey and deliver such Proginet Contracts or Secur-Line Contracts to Beta America for no additional consideration. To the extent that any such Proginet Contracts or Secur-Line Contracts cannot be transferred or the full benefits of use of any such Proginet Contracts or Secur-Line Contracts cannot be provided to Beta America following the Closing Date, then Beta America and Proginet shall enter into such arrangements for no additional consideration from Beta America (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Beta America the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents. [***] Confidential Treatment Requested Confidential portion omitted and filed separately with the Commission
(c) Each Party will use commercially reasonable efforts to obtain consents from third-parties where such are required in accordance with the terms of the Beta America Contracts, the Proginet Contracts or the Secur-Line Contracts.
(d) Upon the direction of Beta America, in lieu of assigning any Proginet Contract or Secur-Line Contract to Beta America Buyer pursuant to Section 2.1, Proginet shall assign, unless otherwise prohibited by Applicable Law, such Proginet Contract or Secur-Line Contract to one or more Affiliates of Beta America; provided, however, that Beta America shall remain subject 5.13.3 and a commercially reasonable alternative to the terms activity does not exist, then such activity shall be deemed a Permitted Restricted Activity. Seller’s failure to object to the proposed activity in writing within such ten (10) Business Day period shall indicate Seller’s determination that the proposed activity will not materially impact NewPage-WI’s adjacent paper manufacturing facilities. Permitted Restricted Activities shall be conducted by Buyer in a commercially reasonable manner in an effort to minimize any material impact on NewPage-WI’s adjacent paper manufacturing facilities and conditions set forth equipment. An activity or communication will not be considered a Permitted Restricted Activity if it occurs as a result of a change in this Agreement, including indemnification for any Agreement Default in respect the use of a Project from a hydroelectric project to an alternative use and/or the removal of any such assignmentFee Parcel from a Project boundary as defined in any FERC License.
Appears in 1 contract
Sources: Asset Sale Agreement (NewPage CORP)
Post-Closing. The Credit Parties shall take all necessary actions to satisfy the following items as soon as practicable after the Closing Date and in any event within 30 days thereof (or such longer period as the Administrative Agent (at the direction of the Required Lenders) may agree):
(a) Notwithstanding anything The Credit Parties shall deliver to the contrary contained in this AgreementAdministrative Agent certificates of insurance naming the Administrative Agent as lender’s loss payee with respect to property insurance, and additional insured with respect to liability insurance, and covering the Borrower’s or its Subsidiaries’ Properties with such insurance carriers, for such amounts and covering such risks that are acceptable to the extent the sale, assignment, transfer or conveyance to Proginet of Beta America’s right, title and interest in and to the Beta America Contracts would result in a breach of said Beta America Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Beta America’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Beta America shall use commercially reasonable efforts to cooperate with Proginet in obtaining any commercially reasonable and lawful arrangements designed to provide to Proginet the full benefits of use of the respective Beta America Contracts and, provided that Proginet receives such benefit of use thereof, Proginet shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Beta America shall promptly assign, transfer, convey and deliver such Beta America Contracts to Proginet for no additional consideration. To the extent that any such Beta America Contracts cannot be transferred or the full benefits of use of any such Beta America Contracts cannot be provided to Proginet following the Closing Date, then (i) Proginet and Beta America shall enter into such arrangements for no additional consideration from Proginet (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Proginet the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents or (ii) for customers based in Europe, the Parties may mutually agree in writing to have such agreements governed by the Master Distributor Agreement. In such event, any such retained Beta America Contracts shall no longer be considered assigned pursuant to this Agreement.Required Lenders;
(b) Notwithstanding anything The Credit Parties shall deliver to the contrary contained Administrative Agent evidence of insurance coverage (and all documentation related thereto) in this Agreementform, scope and substance reasonably satisfactory to the extent the sale, assignment, transfer or conveyance to Beta America of Proginet’s right, title Required Lenders and interest otherwise in and to the Proginet Contracts or the Secur-Line Contracts would result in a breach of said Proginet Contracts or Secur-Line Contracts or would require any third-party consents which shall not have been obtained prior to the sixtieth (60th) day following the Closing Date (after Proginet’s commercially reasonable efforts to obtain them), this Agreement shall not constitute a sale, assignment, transfer or conveyance thereof. If consents are not obtained from third-parties prior to such time, Proginet shall use commercially reasonable efforts to cooperate with Beta America in obtaining any commercially reasonable and lawful arrangements designed to provide to Beta America the full benefits of use of the respective Proginet Contracts or Secur-Line Contracts and, provided that Beta America receives such benefit of use thereof, Beta America shall satisfy all contractual obligations, if any, corresponding thereto. Once such third-party consents are obtained, Proginet shall promptly assign, transfer, convey and deliver such Proginet Contracts or Secur-Line Contracts to Beta America for no additional consideration. To the extent that any such Proginet Contracts or Secur-Line Contracts cannot be transferred or the full benefits of use of any such Proginet Contracts or Secur-Line Contracts cannot be provided to Beta America following the Closing Date, then Beta America and Proginet shall enter into such arrangements for no additional consideration from Beta America (including sublicensing, subleasing or subcontracting to the extent permitted) to provide Beta America the economic (taking into account tax costs and benefits) and operational equivalent of obtaining such consents. [***] Confidential Treatment Requested Confidential portion omitted and filed separately compliance with the Commissionterms of Sections 4.17 and 5.3; and
(c) Each Party will use commercially reasonable efforts The Credit Parties shall cause (i) all policies of property insurance with respect to obtain consents from third-parties where such are required the Collateral either to have attached thereto a lender’s loss payable endorsement in accordance with the terms favor of the Beta America Contracts, Administrative Agent for its benefit and the Proginet Contracts ratable benefit of the Secured Parties or to name the Secur-Line Contracts.
(d) Upon Administrative Agent as lender’s loss payee for its benefit and the direction ratable benefit of Beta Americathe Secured Parties, in lieu either case, in form reasonably satisfactory to the Required Lenders, (ii) all policies of assigning liability insurance with respect to the Credit Parties to name the Administrative Agent for its benefit and the ratable benefit of the Secured Parties as an additional insured and to provide for a waiver of subrogation in favor of the Administrative Agent for its benefit and the ratable benefit of the Secured Parties, and (iii) all such policies to contain a provision that notwithstanding any Proginet Contract or Secur-Line Contract to Beta America pursuant to Section 2.1contrary agreements between the Borrower, Proginet shall assignits Subsidiaries, unless otherwise prohibited by Applicable Lawand the applicable insurance company, such Proginet Contract policies will not be canceled or Securallowed to lapse without renewal without at least thirty (30) days’ (or ten (10) days’ in the case of non-Line Contract to one or more Affiliates of Beta America; provided, however, that Beta America shall remain subject payment) prior written notice to the terms and conditions set forth in this Agreement, including indemnification for any Agreement Default in respect of any such assignmentAdministrative Agent.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Term Loan Credit Agreement (Hi-Crush Inc.)