Form Apa - Asset Purchase Agreement Page 23
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6.6
Updated Disclosure Schedules
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From the date hereof through the Closing Date, Seller and Buyer shall update
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those portions of the Disclosure Schedules relating to the representations and warranties
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contained in Articles IV and V hereof, respectively, in each case to reflect changes
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thereto through the Closing Date.
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6.7
Failure to Obtain Third Party Consents
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(a)
The parties hereto acknowledge that the consent, approval or
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permission of certain third parties may be required for the sale, transfer or assignment by
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Seller to Buyer of certain of the Assumed Agreements, Permits, Leases and Equipment
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Leases, or the assumption by Buyer of certain of the Assumed Agreements (hereinafter
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referred to as the "Consents"). To the extent that any of the Assumed Agreements are not
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assignable without the consent of a third party, neither this Agreement, nor any of the
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instruments or documents executed and delivered in connection herewith, shall constitute
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an assignment thereof if such assignment or attempted assignment would constitute a
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breach thereof. Buyer and Seller also agree that, although Seller and Buyer agree to
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cooperate with each other in attempting to obtain all Consents, any failure to obtain any
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Consents by either Seller or Buyer, as the case may be, for any reason whatsoever shall
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not constitute a breach of this Agreement by Seller or Buyer, as the case may be.
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(b)
If one or more Consents are not obtained prior to or at Closing and
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the purchase and sale contemplated by this Agreement is consummated, unless Seller and
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Buyer otherwise agree in writing, Seller agrees to use commercially reasonable efforts for
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a period of sixty (60) days after Closing to assist Buyer in obtaining any such Consent.
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In addition, during the period after the Closing, Seller shall use commercially reasonable
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efforts to allow Buyer, to the extent permitted by applicable law and to the extent
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reasonably within the contractual or other ability or control of Seller, and provided Buyer
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reimburses Seller immediately for the costs and liabilities incurred by Seller, to enjoy the
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economic and other benefits of the subject matter of the applicable Assumed Agreement
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as if such Consent had been obtained; it being understood that Seller's commercially
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reasonable efforts shall not include the expenditure of any amounts which Buyer would
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not otherwise be liable for if the Consent had been obtained and the subject matter to
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which such Consent would have related had been assigned to Buyer or for which Seller is
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not reimbursed immediately pursuant to the terms hereof.
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6.8
Transition Services Agreement
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Buyer and Seller will use their commercially reasonable best efforts to agree upon
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a Transition Services Agreement. Subject to each party's exercise of its commercially
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reasonable best efforts to reach a mutually agreeable agreement, the execution of such
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agreement shall not be a condition to either party's obligation to consummate the
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transactions contemplated by this Agreement.
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