filed separately with the Securities and Exchange Commission.
28
BUYERS, ON THE OTHER, SHALL COOPERATE WITH ONE ANOTHER IN STRUCTURING AND
DOCUMENTING ANY LAWFUL AND REASONABLE ARRANGEMENT UNDER WHICH THE BUYERS SHALL
OBTAIN THE ECONOMIC BENEFITS OF THE ASSET, CLAIM OR RIGHT WITH RESPECT TO WHICH
THE CONSENT HAS NOT BEEN OBTAINED IN ACCORDANCE WITH THIS AGREEMENT AND THE
SELLERS WILL, SUBSEQUENT TO THE CLOSING, COOPERATE WITH THE BUYERS IN ATTEMPTING
TO OBTAIN SUCH CONSENT, APPROVAL OR AUTHORIZATION AS PROMPTLY THEREAFTER AS
PRACTICABLE.
SUCH REASONABLE ARRANGEMENT MAY INCLUDE (I) THE SUBCONTRACTING,
SUBLICENSING OR SUBLEASING TO A BUYER OF ANY AND ALL RIGHTS OF THE SELLERS
AGAINST THE OTHER PARTY TO SUCH RESTRICTED CONTRACT, (II) THE ENFORCEMENT BY THE
SELLERS OF SUCH RIGHTS IN RESPECT OF SUCH RESTRICTED CONTRACT, AND (III) THE
PERFORMANCE BY A BUYER OF THE OBLIGATIONS UNDER SUCH RESTRICTED CONTRACT AS THE
RELEVANT SELLERS' AGENT. FROM AND AFTER CLOSING, (I) SELLERS WILL PROMPTLY PAY
TO BUYERS WHEN RECEIVED ALL MONEYS RELATING TO THE PERIOD ON OR AFTER THE
CLOSING DATE RECEIVED BY IT UNDER ANY RESTRICTED CONTRACT (OTHER THAN ANY
EXCLUDED ASSETS), AND (II) BUYERS WILL PROMPTLY PAY, PERFORM OR DISCHARGE WHEN
DUE ANY LIABILITIES ARISING THEREUNDER AFTER THE CLOSING DATE UNDER ANY
RESTRICTED CONTRACT.
LIABILITIES ARISING AFTER THE CLOSING UNDER A RESTRICTED
CONTRACT SHALL CONSTITUTE ASSUMED LIABILITIES.
AS SOON AS THE RELEVANT CONSENT
FOR THE SALE, ASSIGNMENT, TRANSFER, CONVEYANCE, DELIVERY OR ASSUMPTION OF A
RESTRICTED CONTRACT IS OBTAINED, SELLERS SHALL PROMPTLY ASSIGN, TRANSFER, CONVEY
AND DELIVER SUCH RESTRICTED CONTRACT TO THE RELEVANT BUYER, AND SUCH BUYER SHALL
ASSUME SUCH RESTRICTED CONTRACT FROM AND AFTER THE DATE OF ASSIGNMENT TO BUYER
PURSUANT TO A SPECIAL-PURPOSE ASSIGNMENT AND ASSUMPTION AGREEMENT SUBSTANTIALLY
SIMILAR IN TERMS TO THOSE OF THE ASSIGNMENT AND ASSUMPTION AGREEMENT OR IN SUCH
OTHER TERMS AS MAY BE REQUIRED BY THE RELEVANT THIRD PARTY.
IF SELLERS SHALL
HAVE COMPLIED WITH THEIR OBLIGATIONS UNDER THIS SECTION 5.4(A), THE INABILITY TO
SECURE THE CONSENT TO THE TRANSFER OR ASSIGNMENT OF A RESTRICTED CONTRACT SHALL
NOT CONSTITUTE A BREACH OF ANY OF SELLERS' COVENANTS OR OBLIGATIONS UNDER THIS
AGREEMENT AND NO REDUCTION SHALL BE MADE TO THE PURCHASE PRICE IN RESPECT
THEREOF.
(B)
THE SELLERS AND THE BUYERS AGREE, AND THE
SELLERS AGREE TO CAUSE EACH OF THE LICENSORS (AS DEFINED IN THE PREMISES LICENSE
AGREEMENT), TO USE THEIR COMMERCIALLY REASONABLE EFFORTS TO PROMPTLY OBTAIN THE
CONSENTS OF THE LANDLORDS AS CONTEMPLATED UNDER THE PREMISES LICENSE AGREEMENT.
THE PARTIES FURTHER AGREE, AND THE SELLERS AGREE TO CAUSE EACH OF THE LICENSORS,
TO NEGOTIATE IN GOOD FAITH WITH ONE ANOTHER AND THE APPLICABLE LANDLORD ANY
CHANGES OR MODIFICATIONS TO A SUBLEASE OR ASSIGNMENT (IN EACH CASE, AS DEFINED
IN THE PREMISES LICENSE AGREEMENT) AND TO PROMPTLY EXECUTE (OR CAUSE THE
APPLICABLE AFFILIATE TO EXECUTE) THE FINAL AGREED UPON SUBLEASE OR ASSIGNMENT.
MIVA SEPARATELY AGREES TO GUARANTEE THE OBLIGATIONS OF EACH OF THE LICENSORS
UNDER THE PREMISES LICENSE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY
BREACHES BY A LICENSOR OF ANY PROVISION OF