Specified Matters. (A) Descartes shall obtain, prior to the Closing, any Approvals from the party (the “Specified Party”) set forth on Section 5.28(c)(i) of the Descartes Disclosure Schedule necessary to, and at the Closing shall, effect the transfer, effective as of the Closing and in compliance with all Contracts in effect regarding governance of the entity listed on Section 5.28(c)(i) of the Descartes Disclosure Schedule (the “Specified Entity”), of all of Descartes’s and its Subsidiaries’ interests in the Specified Entity to Fermat or its designated Subsidiary, as well as in a manner consistent with all Ag Material Contracts with the Specified Party or Specified Entity without directly or indirectly (1) modifying, agreeing to modify or conditioning such Approval on modification of any terms of Contracts related to such Specified Entity or with the Specified Party (for the avoidance of doubt, whether by amendment, waiver, entry into a new Contract or otherwise) except to the extent constituting Excluded Ag Assets or Retained Ag Liabilities and not related to the Ag Business (collectively, the “Specified Contracts”), or (2) adversely impacting the ability of Fermat or its Subsidiaries to exercise their ownership rights with respect to, or to operate as operated immediately prior to the date of this Agreement, the business of the Specified Entity, in the case of each of clause (1) and clause (2) unless (x) otherwise previously consented to in writing by Fermat (such consent not to be withheld, conditioned or delayed with respect to any modification that is commercially reasonable taking into account its economic impact 1414958.12A-NYCSR03A - MSW on Fermat) or (y) in a manner expressly contemplated by the matters set forth on Section 5.28(c) of the Descartes Disclosure Schedule; (B) unless a Proceeding is pending to which Descartes or any of its Subsidiaries, including the Specified Entity, or Fermat or any of its Subsidiaries, is a party, that challenges or seeks to enjoin any proposed sale or other transfer of the Acquired Ag Assets of the Specified Entity or assignment of the Assumed Ag Liabilities of the Specified Entity to Fermat or any of its Subsidiaries effective at the Closing, Descartes shall cause the Specified Entity to sell or otherwise transfer all of the Acquired Ag Assets and assign the Assumed Ag Liabilities of the Specified Entity, in each case effective as of the Closing and in compliance with all Specified Contracts, and without (1) modifying or agreeing to modify or conditioning such transfer and assignment on modification of any terms of any Specified Contract (for the avoidance of doubt, whether by amendment, waiver, entry into a new Contract or otherwise) except to the extent constituting Excluded Ag Assets or Retained Ag Liabilities and not related to the Ag Business, or (2) adversely impacting the ability of Fermat or its Subsidiaries to exercise their ownership rights with respect to, or to operate as operated immediately prior to the date of this Agreement, the business of the Specified Entity, in the case of each of clause (1) and clause (2) unless (x) otherwise previously consented to in writing by Fermat (such consent not to be withheld, conditioned or delayed with respect to any modification that is commercially reasonable taking into account its economic impact on Fermat) or (y) in a manner expressly contemplated by the matters set forth on Section 5.28(c) of the Descartes Disclosure Schedule; (C) if (x) Descartes has not obtained, prior to the Closing, all required Approvals from the Specified Party of the type described by clause (A) and (y) a Proceeding is pending as contemplated by clause (B), then the Acquired Ag Leased Real Property and Acquired Ag Owned Real Property directly or indirectly held by the Specified Entity (the “Specified Sites”) shall be deemed to be Delayed Sites, and the parties shall enter into, and Descartes shall cause the Specified Entity to enter into, a Delayed Site Agreement with respect thereto (or, to the extent permitted by Law, any other arrangements as may be mutually agreed by the parties in accordance with Section 5.11) which Delayed Site Agreement or other arrangements will put Fermat in the same position with respect to the economics and other benefits and burdens in respect of the Specified Entity as if Descartes’s and its Subsidiaries’ interests in the Specified Entity had been conveyed to Fermat at the Closing Date in accordance with the foregoing clause (A), until such time as the transactions contemplated by the foregoing clauses (A) or (B) can be consummated in accordance with their terms (other than with respect to the timing contemplated by such foregoing clauses (A) or (B)); or 1414958.12A-NYCSR03A - MSW (D) if clause (C) would otherwise be applicable, but such course of action is prohibited by a Governmental Entity, Law or Judgment (or such clause (C) is applicable but becomes prohibited by a Governmental Entity, Law or Judgment), Descartes shall use best and all efforts to obtain an alternative source of supply for Fermat, build alternative facilities for Fermat or take any and all other steps at Descartes’s sole cost and expense as are required to put Fermat in the same position with respect to the economics and other benefits and burdens in respect of the Specified Entity as if Descartes’s and its Subsidiaries’ interests in the Specified Entity had been conveyed to Fermat at the Closing Date in accordance with the foregoing clause (A) and Descartes shall, at the election of Fermat, unless not permitted by Law or Contract or reasonably likely to have a material and adverse impact on Descartes or any of its Affiliates or a material and adverse impact on the level of financial exposure in any Proceeding related to the Specified Matters, cause the Specified Entity to sell to Fermat or its designated Subsidiary any or all of the Acquired Ag Assets including any equipment at the Specified Sites for $1.00; (the matters described in clauses (A), (B), (C), and (D), the “Specified Matters”); (ii) In connection with Descartes’s obligations pursuant to Section 5.28(c)(i), each of Descartes and Fermat shall cooperate in good faith and use their reasonable best efforts to obtain as promptly as practicable any Approvals from the Specified Party necessary to, and any Approvals of any Governmental Entity necessary to, effect, effective as of the Closing, the Specified Matters, including taking the actions set forth on Section 5.28(c) of the Descartes Disclosure Schedule, it being agreed that the parties’ mutually preferred and prioritized course of action is that described in clause (A) and the parties agree that solely such course of action shall be pursued until August 1, 2017 unless the parties otherwise agree, and from and after August 1, 2017, the parties shall primarily pursue such course of action described in clause (A) but concurrently, and in the priorities described as follows (unless otherwise agreed by the parties) pursue the secondarily preferred course of action described in clause (B), the tertiarily course of action described in clause (C), followed by the quaternarily preferred course of action described in clause (D). From and after the Closing, if the Specified Matter described in clause (A) or clause (B) of the definition of such term was not effectuated at or prior to the Closing, each of Descartes and Fermat shall operate in accordance with (i)(C) or (i)(D) above, as applicable, and shall continue to cooperate in good faith and use their reasonable best efforts to obtain any Approvals from the Specified Party necessary to, and any Approvals of any Governmental Entity necessary to, effect the Specified Matters described in clause (A) and (B) of the definition of such term, it being agreed that the parties’ mutually preferred and prioritized course of action is that described in clause (A).
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Specified Matters. (Ai) Descartes Upon becoming aware of any development with respect to a Specified Matter, the Company, as Indemnified Party, shall obtainpromptly provide the Sellers with written notice of such development, prior describing in reasonable detail any updates or changes to the Closing, any Approvals from the party Company’s estimate of Losses for which indemnification is being sought (the “Specified Party”) set forth on Section 5.28(c)(i) of the Descartes Disclosure Schedule necessary to, and at the Closing shall, effect the transfer, effective as of the Closing and in compliance with all Contracts in effect regarding governance of the entity listed on Section 5.28(c)(i) of the Descartes Disclosure Schedule (the “Specified Entity”if ascertainable), of all of Descartes’s and its Subsidiaries’ interests in the Specified Entity . The failure to Fermat or its designated Subsidiary, as well as provide such notice shall not result in a manner consistent with all Ag Material Contracts with the Specified Party or Specified Entity without directly or indirectly (1) modifying, agreeing to modify or conditioning such Approval on modification waiver of any terms of Contracts related right to such Specified Entity or with the Specified Party (for the avoidance of doubt, whether by amendment, waiver, entry into a new Contract or otherwise) indemnification hereunder except to the extent constituting Excluded Ag Assets that the Indemnifying Party is prejudiced by such failure. Upon request by an Indemnifying Party, the Company shall promptly provide copies to the Indemnifying Parties of all materials and documents sent or Retained Ag Liabilities received by any of the Transferred Entities or Purchaser or their representatives to or from, and not the Company shall promptly advise and inform the Indemnifying Parties of other communications to or from, any Governmental Entity concerning any Specified Matter. The Company shall, after reasonably consulting with the Indemnifying Party and considering the Indemnifying Party’s views in good faith, (A) retain control of the defense of any claim related to the Ag Business (collectivelySpecified Matters, the “Specified Contracts”)including any commercially reasonable internal investigation, or (2) adversely impacting the ability of Fermat or its Subsidiaries to exercise their ownership rights with respect to, or to operate as operated immediately prior through counsel reasonably acceptable to the date Sellers; provided that unless an actual conflict of this Agreementinterest arises, Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP and Ropes & ▇▇▇▇ LLP shall be deemed acceptable to the business Sellers, (B) retain control of the any remedial actions related to a Specified Entity, in the case of each of clause (1) and clause (2) unless (x) otherwise previously consented to in writing by Fermat (such consent not to be withheld, conditioned or delayed with respect to any modification that is commercially reasonable taking into account its economic impact 1414958.12A-NYCSR03A - MSW on Fermat) or (y) in a manner expressly Matter contemplated by the matters set forth on Item 4(b) of Section 5.28(c8.2(a)(iv) of the Descartes Purchaser Disclosure Schedule;
(B) unless a Proceeding is pending to which Descartes or any of its Subsidiaries, including the Specified Entity, or Fermat or any of its Subsidiaries, is a party, that challenges or seeks to enjoin any proposed sale or other transfer of the Acquired Ag Assets of the Specified Entity or assignment of the Assumed Ag Liabilities of the Specified Entity to Fermat or any of its Subsidiaries effective at the Closing, Descartes shall cause the Specified Entity to sell or otherwise transfer all of the Acquired Ag Assets and assign the Assumed Ag Liabilities of the Specified Entity, in each case effective as of the Closing and in compliance with all Specified Contracts, and without (1) modifying or agreeing to modify or conditioning such transfer and assignment on modification of any terms of any Specified Contract (for the avoidance of doubt, whether by amendment, waiver, entry into a new Contract or otherwise) except to the extent constituting Excluded Ag Assets or Retained Ag Liabilities and not related to the Ag Business, or (2) adversely impacting the ability of Fermat or its Subsidiaries to exercise their ownership rights with respect to, or to operate as operated immediately prior to the date of this Agreement, the business of the Specified Entity, in the case of each of clause (1) and clause (2) unless (x) otherwise previously consented to in writing by Fermat (such consent not to be withheld, conditioned or delayed with respect to any modification that is commercially reasonable taking into account its economic impact on Fermat) or (y) in a manner expressly contemplated by the matters set forth on Section 5.28(c) of the Descartes Disclosure Schedule;
(C) if (x) Descartes has not obtained, prior to the Closing, all required Approvals from the Specified Party of the type described by clause (A) and (y) a Proceeding is pending as contemplated by clause (B), then the Acquired Ag Leased Real Property and Acquired Ag Owned Real Property directly or indirectly held by the Specified Entity (the “Specified Sites”) shall be deemed to be Delayed Sites, and the parties shall enter into, and Descartes shall cause the Specified Entity to enter into, a Delayed Site Agreement with respect thereto (or, to the extent permitted by Law, any other arrangements as may be mutually agreed by the parties in accordance with Section 5.11) which Delayed Site Agreement or other arrangements will put Fermat in the same position with respect to the economics and other benefits and burdens in respect of the Specified Entity as if Descartes’s and its Subsidiaries’ interests in the Specified Entity had been conveyed to Fermat at the Closing Date in accordance with the foregoing clause (A), until such time as the transactions contemplated by the foregoing clauses (A) or (B) can be consummated in accordance with their terms (other than with respect to the timing contemplated by such foregoing clauses (A) or (B)); or 1414958.12A-NYCSR03A - MSW
(D) if clause (C) would otherwise be applicable, but such course of action is prohibited by a Governmental Entity, Law or Judgment (or such clause (Cretain control of remedial actions related to a Specified Matter contemplated by Item 4(c) is applicable but becomes prohibited by a Governmental Entity, Law or Judgment), Descartes shall use best and all efforts to obtain an alternative source of supply for Fermat, build alternative facilities for Fermat or take any and all other steps at Descartes’s sole cost and expense as are required to put Fermat in Section 8.2(a)(iv) of the same position with Purchaser Disclosure Schedule. With respect to the economics and other benefits and burdens in respect of the Specified Entity as if Descartes’s and its Subsidiaries’ interests in the Specified Entity had been conveyed to Fermat at the Closing Date in accordance with the foregoing clause (A) of the immediately preceding sentence, the Company shall allow, and Descartes shall, at the election of Fermat, unless not permitted by Law or Contract or reasonably likely to have a material and adverse impact on Descartes or any of its Affiliates or a material and adverse impact on the level of financial exposure in any Proceeding related to the Specified Matters, shall cause the Specified Entity other Transferred Entities to sell to Fermat or its designated Subsidiary any or all of the Acquired Ag Assets including any equipment at the Specified Sites for $1.00; (the matters described in clauses (A), (B), (C), and (D)allow, the “Specified Matters”);Indemnifying Parties a reasonable opportunity to participate in such defense with their own counsel and at their own expense.
(ii) In connection The Company shall be authorized, after reasonably consulting with Descartes’s obligations pursuant to Section 5.28(c)(i), each of Descartes the Indemnifying Parties and Fermat shall cooperate considering the Indemnifying Parties’ views in good faith and use their reasonable best efforts faith, to obtain as promptly as practicable consent to any Approvals from the Specified Party necessary tosettlement of, and any Approvals or entry of any Governmental Entity necessary tojudgment arising from, effectany claim in respect of Specified Matter, effective as in its reasonable discretion and without the consent of the Closingany Indemnifying Party; provided, the Specified Matters, including taking the actions set forth on Section 5.28(c) of the Descartes Disclosure Schedule, it being agreed that the parties’ mutually preferred and prioritized course of action is that described in clause such settlement or judgment (A) involves only injunctive relief against any of the Transferred Entities or (B) does not result in Losses indemnifiable hereunder in excess of $2 million; provided, further, that such settlement or judgment (i) does not involve any injunctive relief against any of the Sellers or any of their respective Affiliates or finding or admission of any violation of Law or any admission of wrongdoing by any Seller or any Affiliate of any Seller or by any of the Transferred Entities, and (ii) fully and finally releases the Transferred Entities and the parties agree that solely Indemnified Parties completely in connection with such course of action shall be pursued until August 1, 2017 unless the parties otherwise agree, and from and after August 1, 2017, the parties shall primarily pursue such course of action described in clause (A) but concurrently, and Specified Matter. Except as expressly set forth in the priorities described as follows foregoing sentence, neither the Company nor any other Transferred Entity may consent to any settlement of, or entry of any judgment arising from, any claim in respect of a Specified Matter without the prior written consent of the Indemnifying Parties, which consent may be withheld or delayed in the sole discretion of the Indemnifying Parties; provided that, with the consent of Purchaser (unless otherwise agreed by the parties) pursue the secondarily preferred course of action described which may be given or withheld in clause (BPurchaser’s sole and absolute discretion), the tertiarily course of action described in clause (C), followed by the quaternarily preferred course of action described in clause (D). From and after the Closing, if the Company or any other Transferred Entity may settle any Specified Matter described without consent from the Indemnifying Parties if (x) the Transferred Entities and Purchaser first irrevocably waives in clause writing any right to indemnity under this Agreement with respect to all Losses related to such Specified Matter and (Ay) or clause such settlement (BI) does not involve any injunctive relief against any of the definition Sellers or any of such term was not effectuated at their respective Affiliates or prior to the Closing, each finding or admission of Descartes and Fermat shall operate in accordance with (i)(C) any violation of Law or (i)(D) above, as applicableany admission of wrongdoing by any Seller or any Affiliate of any Seller, and shall continue to cooperate (II) fully and finally releases the Transferred Entities and the Indemnified Parties completely in good faith and use their reasonable best efforts to obtain any Approvals from the connection with such Specified Party necessary to, and any Approvals of any Governmental Entity necessary to, effect the Specified Matters described in clause (A) and (B) of the definition of such term, it being agreed that the parties’ mutually preferred and prioritized course of action is that described in clause (A)Matter.
Appears in 1 contract
Specified Matters. (Ai) Descartes Upon becoming aware of any development with respect to a Specified Matter, the Company, as Indemnified Party, shall obtainpromptly provide the Sellers with written notice of such development, prior describing in reasonable detail any updates or changes to the Closing, any Approvals from the party Company’s estimate of Losses for which indemnification is being sought (the “Specified Party”) set forth on Section 5.28(c)(i) of the Descartes Disclosure Schedule necessary to, and at the Closing shall, effect the transfer, effective as of the Closing and in compliance with all Contracts in effect regarding governance of the entity listed on Section 5.28(c)(i) of the Descartes Disclosure Schedule (the “Specified Entity”if ascertainable), of all of Descartes’s and its Subsidiaries’ interests in the Specified Entity . The failure to Fermat or its designated Subsidiary, as well as provide such notice shall not result in a manner consistent with all Ag Material Contracts with the Specified Party or Specified Entity without directly or indirectly (1) modifying, agreeing to modify or conditioning such Approval on modification waiver of any terms of Contracts related right to such Specified Entity or with the Specified Party (for the avoidance of doubt, whether by amendment, waiver, entry into a new Contract or otherwise) indemnification hereunder except to the extent constituting Excluded Ag Assets that the Indemnifying Party is prejudiced by such failure. Upon request by an Indemnifying Party, the Company shall promptly provide copies to the Indemnifying Parties of all materials and documents sent or Retained Ag Liabilities received by any of the Transferred Entities or Purchaser or their representatives to or from, and not the Company shall promptly advise and inform the Indemnifying Parties of other communications to or from, any Governmental Entity concerning any Specified Matter. The Company shall, after reasonably consulting with the Indemnifying Party and considering the Indemnifying Party’s views in good faith, (A) retain control of the defense of any claim related to the Ag Business (collectivelySpecified Matters, the “Specified Contracts”)including any commercially reasonable internal investigation, or (2) adversely impacting the ability of Fermat or its Subsidiaries to exercise their ownership rights with respect to, or to operate as operated immediately prior through counsel reasonably acceptable to the date Sellers; provided that unless an actual conflict of this Agreementinterest arises, Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP and Ropes & ▇▇▇▇ LLP shall be deemed acceptable to the business Sellers, (B) retain control of the any remedial actions related to a Specified Entity, in the case of each of clause (1) and clause (2) unless (x) otherwise previously consented to in writing by Fermat (such consent not to be withheld, conditioned or delayed with respect to any modification that is commercially reasonable taking into account its economic impact 1414958.12A-NYCSR03A - MSW on Fermat) or (y) in a manner expressly Matter contemplated by the matters set forth on Item 4(b) of Section 5.28(c8.2(a)(iv) of the Descartes Purchaser Disclosure Schedule;
(B) unless a Proceeding is pending to which Descartes or any of its Subsidiaries, including the Specified Entity, or Fermat or any of its Subsidiaries, is a party, that challenges or seeks to enjoin any proposed sale or other transfer of the Acquired Ag Assets of the Specified Entity or assignment of the Assumed Ag Liabilities of the Specified Entity to Fermat or any of its Subsidiaries effective at the Closing, Descartes shall cause the Specified Entity to sell or otherwise transfer all of the Acquired Ag Assets and assign the Assumed Ag Liabilities of the Specified Entity, in each case effective as of the Closing and in compliance with all Specified Contracts, and without (1) modifying or agreeing to modify or conditioning such transfer and assignment on modification of any terms of any Specified Contract (for the avoidance of doubt, whether by amendment, waiver, entry into a new Contract or otherwise) except to the extent constituting Excluded Ag Assets or Retained Ag Liabilities and not related to the Ag Business, or (2) adversely impacting the ability of Fermat or its Subsidiaries to exercise their ownership rights with respect to, or to operate as operated immediately prior to the date of this Agreement, the business of the Specified Entity, in the case of each of clause (1) and clause (2) unless (x) otherwise previously consented to in writing by Fermat (such consent not to be withheld, conditioned or delayed with respect to any modification that is commercially reasonable taking into account its economic impact on Fermat) or (y) in a manner expressly contemplated by the matters set forth on Section 5.28(c) of the Descartes Disclosure Schedule;
(C) if (x) Descartes has not obtained, prior to the Closing, all required Approvals from the Specified Party of the type described by clause (A) and (y) a Proceeding is pending as contemplated by clause (B), then the Acquired Ag Leased Real Property and Acquired Ag Owned Real Property directly or indirectly held by the Specified Entity (the “Specified Sites”) shall be deemed to be Delayed Sites, and the parties shall enter into, and Descartes shall cause the Specified Entity to enter into, a Delayed Site Agreement with respect thereto (or, to the extent permitted by Law, any other arrangements as may be mutually agreed by the parties in accordance with Section 5.11) which Delayed Site Agreement or other arrangements will put Fermat in the same position with respect to the economics and other benefits and burdens in respect of the Specified Entity as if Descartes’s and its Subsidiaries’ interests in the Specified Entity had been conveyed to Fermat at the Closing Date in accordance with the foregoing clause (A), until such time as the transactions contemplated by the foregoing clauses (A) or (B) can be consummated in accordance with their terms (other than with respect to the timing contemplated by such foregoing clauses (A) or (B)); or 1414958.12A-NYCSR03A - MSW
(D) if clause (C) would otherwise be applicable, but such course of action is prohibited by a Governmental Entity, Law or Judgment (or such clause (Cretain control of remedial actions related to a Specified Matter contemplated by Item 4(c) is applicable but becomes prohibited by a Governmental Entity, Law or Judgment), Descartes shall use best and all efforts to obtain an alternative source of supply for Fermat, build alternative facilities for Fermat or take any and all other steps at Descartes’s sole cost and expense as are required to put Fermat in Section 8.2(a)(iv) of the same position with Purchaser Disclosure Schedule. With respect to the economics and other benefits and burdens in respect of the Specified Entity as if Descartes’s and its Subsidiaries’ interests in the Specified Entity had been conveyed to Fermat at the Closing Date in accordance with the foregoing clause (A) of the immediately preceding sentence, the Company shall allow, and Descartes shall, at the election of Fermat, unless not permitted by Law or Contract or reasonably likely to have a material and adverse impact on Descartes or any of its Affiliates or a material and adverse impact on the level of financial exposure in any Proceeding related to the Specified Matters, shall cause the Specified Entity other Transferred Entities to sell to Fermat or its designated Subsidiary any or all of the Acquired Ag Assets including any equipment at the Specified Sites for $1.00; (the matters described in clauses (A), (B), (C), and (D)allow, the “Specified Matters”);Indemnifying Parties a reasonable opportunity to participate in such defense with their own counsel and at their own expense.
(ii) In connection The Company shall be authorized, after reasonably consulting with Descartes’s obligations pursuant to Section 5.28(c)(i), each of Descartes the Indemnifying Parties and Fermat shall cooperate considering the Indemnifying Parties’ views in good faith and use their reasonable best efforts faith, to obtain as promptly as practicable consent to any Approvals from the Specified Party necessary tosettlement of, and any Approvals or entry of any Governmental Entity necessary tojudgment arising from, effectany claim in respect of Specified Matter, effective as in its reasonable discretion and without the consent of the Closingany Indemnifying Party; provided, the Specified Matters, including taking the actions set forth on Section 5.28(c) of the Descartes Disclosure Schedule, it being agreed that the parties’ mutually preferred and prioritized course of action is that described in clause such settlement or judgment (A) involves only injunctive relief against any of the Transferred Entities or (B) does not result in Losses indemnifiable hereunder in excess of $2 million; provided, further, that such settlement or judgment (i) does not involve any injunctive relief against any of the Sellers or any of their respective Affiliates or finding or admission of any violation of Law or any admission of wrongdoing by any Seller or any Affiliate of any Seller or by any of the Transferred Entities, and (ii) fully and finally releases the Transferred Entities and the parties agree that solely Indemnified Parties completely in connection with such course of action shall be pursued until August 1, 2017 unless the parties otherwise agree, and from and after August 1, 2017, the parties shall primarily pursue such course of action described in clause (A) but concurrently, and Specified Matter. Except as expressly set forth in the priorities described as follows foregoing sentence, neither the Company nor any other Transferred Entity may consent to any settlement of, or entry of any judgment arising from, any claim in respect of a Specified Matter without the prior written consent of the Indemnifying Parties, which consent may be withheld or delayed in the sole discretion of the Indemnifying Parties; provided that, with the consent of Purchaser (unless otherwise agreed by the parties) pursue the secondarily preferred course of action described which may be given or withheld in clause (BPurchaser’s sole and absolute discretion), the tertiarily course of action described in clause (C), followed by the quaternarily preferred course of action described in clause (D). From and after the Closing, if the Company or any other Transferred Entity may settle any Specified Matter described without consent from the Indemnifying Parties if (x) the Transferred Entities and Purchaser first irrevocably waives in clause writing any right to indemnity under this Agreement with respect to all Losses related to such Specified Matter and (Ay) or clause such settlement (BI) does not involve any injunctive relief against any of the definition Sellers or any of such term was not effectuated at their respective Affiliates or prior to the Closing, each of Descartes and Fermat shall operate in accordance with (i)(C) or (i)(D) above, as applicable, and shall continue to cooperate in good faith and use their reasonable best efforts to obtain any Approvals from the Specified Party necessary to, and any Approvals of any Governmental Entity necessary to, effect the Specified Matters described in clause (A) and (B) of the definition of such term, it being agreed that the parties’ mutually preferred and prioritized course of action is that described in clause (A).finding or
Appears in 1 contract
Specified Matters. (A) Descartes shall obtain, prior to the Closing, any Approvals from the party (the “Specified Party”) set forth on Section 5.28(c)(i) of the Descartes Disclosure Schedule necessary to, and at the Closing shall, effect the transfer, effective as of the Closing and in compliance with all Contracts in effect regarding governance of the entity listed on Section 5.28(c)(i) of the Descartes Disclosure Schedule (the “Specified Entity”), of all of Descartes’s and its Subsidiaries’ interests in the Specified Entity to Fermat or its designated Subsidiary, as well as in a manner consistent with all Ag Material Contracts with the Specified Party or Specified Entity without directly or indirectly (1) modifying, agreeing to modify or conditioning such Approval on modification of any terms of Contracts related to such Specified Entity or with the Specified Party (for the avoidance of doubt, whether by amendment, waiver, entry into a new Contract or otherwise) except to the extent constituting Excluded Ag Assets or -163- 1414958.12A-NYCSR03A - MSW Retained Ag Liabilities and not related to the Ag Business (collectively, the “Specified Contracts”), or (2) adversely impacting the ability of Fermat or its Subsidiaries to exercise their ownership rights with respect to, or to operate as operated immediately prior to the date of this Agreement, the business of the Specified Entity, in the case of each of clause (1) and clause (2) unless (x) otherwise previously consented to in writing by Fermat (such consent not to be withheld, conditioned or delayed with respect to any modification that is commercially reasonable taking into account its economic impact 1414958.12A-NYCSR03A - MSW on Fermat) or (y) in a manner expressly contemplated by the matters set forth on Section 5.28(c) of the Descartes Disclosure Schedule;
; (B) unless a Proceeding is pending to which Descartes or any of its Subsidiaries, including the Specified Entity, or Fermat or any of its Subsidiaries, is a party, that challenges or seeks to enjoin any proposed sale or other transfer of the Acquired Ag Assets of the Specified Entity or assignment of the Assumed Ag Liabilities of the Specified Entity to Fermat or any of its Subsidiaries effective at the Closing, Descartes shall cause the Specified Entity to sell or otherwise transfer all of the Acquired Ag Assets and assign the Assumed Ag Liabilities of the Specified Entity, in each case effective as of the Closing and in compliance with all Specified Contracts, and without (1) modifying or agreeing to modify or conditioning such transfer and assignment on modification of any terms of any Specified Contract (for the avoidance of doubt, whether by amendment, waiver, entry into a new Contract or otherwise) except to the extent constituting Excluded Ag Assets or Retained Ag Liabilities and not related to the Ag Business, or (2) adversely impacting the ability of Fermat or its Subsidiaries to exercise their ownership rights with respect to, or to operate as operated immediately prior to the date of this Agreement, the business of the Specified Entity, in the case of each of clause (1) and clause (2) unless (x) otherwise previously consented to in writing by Fermat (such consent not to be withheld, conditioned or delayed with respect to any modification that is commercially reasonable taking into account its economic impact on Fermat) or (y) in a manner expressly contemplated by the matters set forth on Section 5.28(c) of the Descartes Disclosure Schedule;
; (C) if (x) Descartes has not obtained, prior to the Closing, all required Approvals from the Specified Party of the type described by clause (A) and (y) a Proceeding is pending as contemplated by clause (B), then the Acquired Ag Leased Real Property and Acquired Ag Owned Real Property directly or indirectly held by the Specified Entity (the “Specified Sites”) shall be deemed to be Delayed Sites, and the parties shall enter into, and Descartes shall cause the Specified Entity to enter into, a Delayed Site Agreement with respect thereto (or, to the extent permitted by Law, any other arrangements as may be mutually agreed by the parties in accordance with Section 5.11) which Delayed Site Agreement or other arrangements will put Fermat in the same position with respect to the economics and other benefits and burdens in respect of the Specified Entity as if Descartes’s and its Subsidiaries’ interests in the Specified Entity had been conveyed to Fermat at the Closing Date in accordance with the foregoing clause (A), until such time as the transactions contemplated by the foregoing clauses (A) or (B) can be consummated in accordance with their terms (other than with respect to the timing contemplated by such foregoing clauses (A) or (B)); or 1414958.12A-NYCSR03A - MSW
(D) if clause (C) would otherwise be applicable, but such course of action is prohibited by a Governmental Entity, Law or Judgment (or such clause (C) is applicable but becomes prohibited by a Governmental Entity, Law or Judgment), Descartes shall use best and all efforts to obtain an alternative source of supply for Fermat, build alternative facilities for Fermat or take any and all other steps at Descartes’s sole cost and expense as are required to put Fermat in the same position with respect to the economics and other benefits and burdens in respect of the Specified Entity as if Descartes’s and its Subsidiaries’ interests in the Specified Entity had been conveyed to Fermat at the Closing Date in accordance with the foregoing clause (A) and Descartes shall, at the election of Fermat, unless not permitted by Law or Contract or reasonably likely to have a material and adverse impact on Descartes or any of its Affiliates or a material and adverse impact on the level of financial exposure in any Proceeding related to the Specified Matters, cause the Specified Entity to sell to Fermat or its designated Subsidiary any or all of the Acquired Ag Assets including any equipment at the Specified Sites for $1.00; (the matters described in clauses (A), (B), (C), and (D), the “Specified Matters”);
(ii) In connection with Descartes’s obligations pursuant to Section 5.28(c)(i), each of Descartes and Fermat shall cooperate in good faith and use their reasonable best efforts to obtain as promptly as practicable any Approvals from the Specified Party necessary to, and any Approvals of any Governmental Entity necessary to, effect, effective as of the Closing, the Specified Matters, including taking the actions set forth on Section 5.28(c) of the Descartes Disclosure Schedule, it being agreed that the parties’ mutually preferred and prioritized course of action is that described in clause (A) and the parties agree that solely such course of action shall be pursued until August 1, 2017 unless the parties otherwise agree, and from and after August 1, 2017, the parties shall primarily pursue such course of action described in clause (A) but concurrently, and in the priorities described as follows (unless otherwise agreed by the parties) pursue the secondarily preferred course of action described in clause (B), the tertiarily course of action described in clause (C), followed by the quaternarily preferred course of action described in clause (D). From and after the Closing, if the Specified Matter described in clause (A) or clause (B) of the definition of such term was not effectuated at or prior to the Closing, each of Descartes and Fermat shall operate in accordance with (i)(C) or (i)(D) above, as applicable, and shall continue to cooperate in good faith and use their reasonable best efforts to obtain any Approvals from the Specified Party necessary to, and any Approvals of any Governmental Entity necessary to, effect the Specified Matters described in clause (A) and (B) of the definition of such term, it being agreed that the parties’ mutually preferred and prioritized course of action is that described in clause (A).or
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Sources: MSW Transaction Agreement (FMC Corp)