Cure Amounts. Sellers shall transfer and assign all Assumed Contracts to Buyer or an Affiliate of Buyer designated by Buyer, and Buyer or such designated Affiliate of Buyer shall assume all Assumed Contracts from Sellers, as of the Closing Date pursuant to section 365 of the Bankruptcy Code and the Sale Order. As promptly as practicable following the date hereof, Buyer and Sellers shall use commercially reasonable efforts to cooperate and determine the amounts required to cure all defaults under each Assumed Contract so as to permit the assumption and assignment of each such Assumed Contract pursuant to section 365 of the Bankruptcy Code in connection with the transactions contemplated in this Agreement (as ultimately determined by the Bankruptcy Court, the “Cure Amounts”). In connection with the assignment and assumption of the Assumed Contracts, Sellers shall cure any defaults under the Assumed Contracts by payment of any Cure Amounts (or create reserves therefor) as ordered by the Bankruptcy Court ; provided, however, that Buyer shall be responsible for the payment of any Cure Amounts or other costs that arise as a result of Buyer modifying Schedule 2.1(c) after the signing of this Agreement to add other Contracts to Schedule 2.1(c) (the “Additional Contracts”). Buyer shall be additionally responsible for any and all the expenses incurred by the Sellers from the date the Sale Order is entered through and including the date on which an order is entered rejecting the Additional Contracts. Notwithstanding the payment of the Cure Amounts by Sellers or Buyer (if applicable), Buyer or its designated Affiliate shall be responsible for demonstrating and establishing adequate assurance of future performance before the Bankruptcy Court with respect to the Assumed Contracts. For the avoidance of doubt, neither Buyer nor any Affiliate of Buyer shall have any Liability for any Cure Amounts related to any Assumed Contract except as provided in this Section 6.12.
Cure Amounts. Seller hereby agrees that it shall be solely responsible for all cure amounts payable under Bankruptcy Code Section 365 to the extent necessary for the Company to assume the Assumed Executory Leases and Executory Contracts ("Cure Amounts"). Seller at its sole option shall either pay all such Cure Amounts in cash no later than Closing, or shall direct Buyer in writing to pay such Cure Amounts out of the Purchase Price (with a corresponding reduction thereof) otherwise required by this Agreement to be paid to Seller, in which case Buyer shall pay such Cure Amounts at Closing.
Cure Amounts. On the second Business Day prior to the Closing Date, Sellers shall deliver to Buyer a copy of Schedule 2.3(b) updated as of such date.
Cure Amounts. Except with respect to those Cure Amounts that are the responsibility of Buyer pursuant to Section 6.12, Sellers shall have successfully cured any defaults under the Assumed Contracts that are being assumed and assigned at Closing by payment of any Cure Amounts (or shall have created reserves therefor) as ordered by the Bankruptcy Court, and Sellers shall have provided Buyer evidence thereof.
Cure Amounts. At the Closing and pursuant to Section 365 of the Bankruptcy Code, Seller will assume the Purchased Contracts (to the extent not previously assumed) and, subject to the terms herein, assign the Purchased Contracts to Purchaser, and Purchaser, subject to the terms herein, will assume the Purchased Contracts. All Cure Costs with respect to the Purchased Contracts (the “Assumed Cure Costs”) will be paid by Purchaser, as and when finally determined by the Bankruptcy Court pursuant to the procedures set forth in the Approval Order, and not by Seller, and Seller will have no liability for any Assumed Cure Costs. Seller will serve on all non- Seller counterparties to all Purchased Contracts set forth on Schedule 2.5(e) a notice stating that Seller is or may (as applicable) be seeking the assumption and assignment of such Contracts, and will notify such non-Seller counterparties of the deadline for objecting to the cure costs relating to such Contracts, if any, which deadline will be not less than three Business Days prior to the sale hearing date designated in the Bidding Procedures Order.
Cure Amounts. 21 Section 8.8 Section 363(b)(1)(A) 21 ARTICLE IX [INTENTIONALLY OMITTED] 22 ARTICLE X CONDITIONS TO CLOSING 22 Section 10.1 Conditions Precedent to Obligations of Buyer 22 Section 10.2 Conditions Precedent to Obligations of Sellers 22 Section 10.3 Conditions Precedent to Obligations of Buyer and Sellers 23 Section 10.4 Frustration of Closing Conditions 23 ARTICLE XI NO SURVIVAL 24 Section 11.1 No Survival of Representations and Warranties 24 ARTICLE XII TAX MATTERS 24 Section 12.1 Transfer Taxes 24 Section 12.2 Prorations 24 Section 12.3 Purchase Price Allocation 24 ARTICLE XIII MISCELLANEOUS 25 Section 13.1 Expenses 25 Section 13.2 Submission to Jurisdiction; Consent to Service of Process 25 Section 13.3 Waiver of Right to Trial by Jury 25 Section 13.4 Entire Agreement; Amendments and Waivers 25 Section 13.5 Governing Law 26 Section 13.6 Notices 26 Section 13.7 Severability 27 Section 13.8 Binding Effect; Assignment 28 Section 13.9 Counterparts 28 EXHIBITS Exhibit A Xxxx of Sale SCHEDULES Schedule 1.1(d) Intellectual Property Schedule 1.1(e) Purchased Intellectual Property Schedule 2.2 Excluded Assets Schedule 2.3(a) Liabilities Schedule 2.3(b) Cure Amounts Schedule 5.2 Title to Purchased Assets Schedule 5.6 Financial Advisors Schedule 5.7 Litigation Schedule 5.8 Compliance with Laws Schedule 5.9 Permits Schedule 8.6(i) Affiliate Transactions ASSET PURCHASE AGREEMENT THIS ASSET PURCHASE AGREEMENT, dated as of February 2, 2009 (this “Agreement”), is entered into by and among THE PARENT COMPANY, a Colorado corporation (“Parent”), ETOYS DIRECT, INC., a Colorado corporation (“eToys Direct”), ETOYS DIRECT 1, LLC, a Delaware limited liability company (“eToys 1”), ETOYS DIRECT 2, LLC, a Delaware limited liability company (“eToys 2”), ETOYS DIRECT 3, LLC, a Delaware limited liability company (“eToys 3”), BABYUNIVERSE, INC., a Colorado corporation (“BabyUniverse”), POSHTOTS, INC., a Colorado corporation (“PoshTots”), DREAMTIME BABY, INC., a Colorado corporation (“Dreamtime”), MY TWINN, INC., a Colorado corporation (“My Twinn”), GIFT ACQUISITION, L.L.C., a Delaware limited liability company (“Gift”, and collectively with Parent, eToys Direct, eToys 1, eToys 2, and eToys 3, BabyUniverse, PoshTots, Dreamtime, and My Twinn, “Sellers”), and Ali Wing, Inc., a Delaware corporation (“Buyer”).
Cure Amounts. If, subsequent to the Closing Date, Borrower receives a Cure Amount, within five Business Days of receipt of the Net Proceeds therefrom, Borrower shall prepay outstanding Loans in an amount equal to 100% of such Net Proceeds and such prepayment shall be applied in accordance with subsection 4.7 below.
Cure Amounts. At Closing and pursuant to Section 365 of the Bankruptcy Code, Seller shall assume and assign to Purchaser and Purchaser shall assume from Seller, the Purchased Contracts. Except as otherwise set forth in any Bankruptcy Court order approving this Agreement and authorizing the sale of the Purchased Assets, the cure amounts, as determined by the Bankruptcy Court, if any, necessary to cure all defaults, if any, (including, if any, and to the extent allowed by the Bankruptcy Court, all actual or pecuniary losses that have resulted from such defaults under the Purchased Contracts), shall be paid by Purchaser, on or before Closing, and not by Seller and Seller shall have no liability therefore; provided, however, that Purchaser shall not be obligated to cure any such default that is (a) (i) greater than 110% of the total amount set forth in the cure amounts schedule attached as Schedule 2.6(a) hereof or (ii) in excess of the total amount set forth in the cure amount schedule that is to be dated May 21, 2008, whichever is greater (with such excess being Seller’s sole responsibility), or (b) that is in dispute as of the Closing Date if an escrow or other commercially reasonable arrangement with respect thereto shall have been established at or following the Closing pursuant to an order of the Bankruptcy Court. Purchaser shall have the right to a reduction of the Purchase Price (with an amount agreed to by Seller and Purchaser or as determined by the Bankruptcy Court) as a result of the failure by Seller to assume and assign to Purchaser any Core IP Contract.
Cure Amounts. 17 Section 3.3
Cure Amounts. At the Closing, Buyer shall provide funds to Seller (by wire transfer of immediately available U.S. funds) in an amount equal to the Cure Amounts which Buyer has specifically approved as set forth on Schedule 3.2. Seller shall pay all Cure Payments and Cure Expenses owed to third parties promptly (but in any event within five (5) Business Days) after receipt thereof from Buyer. In the event the amount of a Cure Payment related to an Assumed Agreement is not known on the Closing Date, Buyer and Seller shall estimate in good faith the amount of the Cure Payment (an "Estimated Cure Payment") and such Estimated Cure Payment shall be placed into an escrow account with an escrow agent, financial institution or company (the "Escrow Holder") mutually designated by Seller and Buyer. If an Estimated Cure Payment is more than the Cure Payment when the amount is known, the excess shall be returned to Buyer and if the Estimated Cure Payment is less than the Cure Payment when the amount is known, Buyer shall pay the additional funds to Seller by wire transfer in immediately available U.S. funds. In the event that the amount of a Cure Payment is disputed between Buyer and the third party to the Assumed Agreement, the amount of such Cure Payment will be determined by the Bankruptcy Court.
