Common use of Cure Amounts Clause in Contracts

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. Sellers shall transfer At Closing 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 Section 365 of the Bankruptcy Code Code, Sellers shall assume and assign to Purchaser the Assumed Contracts. The Cure Amounts, as determined by Purchaser and the Sale Order. As promptly as practicable following counterparties to such contracts or the date hereofBankruptcy Court, Buyer and Sellers shall use commercially reasonable efforts to cooperate and determine the amounts required if any, necessary to cure all defaults, if any, and to all pay all actual or pecuniary losses that have resulted from such defaults under each the Assumed Contracts, shall be paid by Purchaser, on the Closing Date and upon such payment Purchaser shall have no liability for the Cure Amounts. Notwithstanding the foregoing, in the event the actual Cure Amounts for all Assumed Contracts required to be paid on the Closing Date in accordance with this Agreement exceeds Seven Million Dollars ($7,000,000) plus the sum of pre-petition amounts due to certain vendors and suppliers designated by Purchaser and Sellers as “critical vendors” up to an amount of One Million Six Hundred and Fifty Thousand Dollars ($1,650,000) to the extent such amounts are not otherwise approved by the Bankruptcy Court and not paid by Sellers post petition (the “Basket Cure Amount”), then Purchaser may, by written notice to Sellers, elect to (i) pay the amount by which the Cure Amount exceeds the Basket Cure Amount (the “Excess Basket Cure Amount”) and/or (ii) cause Sellers to reject any Assumed Contract so or (iii) to the extent the failure to assume an Assumed Contract would result in a Material Adverse Effect (as defined in Section 7.8), Purchaser shall not be obligated to permit consummate the transactions contemplated by this Agreement and shall be entitled to terminate this Agreement in accordance with the provisions of Section 9.4 hereof, unless Sellers elect to pay the Excess Basket Cure Amount. No later than three (3) business days prior to the Closing, Purchaser shall notify Sellers in writing which of the Cure Amounts in excess of the Excess Basket Cure Amount Purchaser has elected to pay, if any. No later than one (1) business day prior to the Closing, Sellers shall notify Purchaser in writing which of the Cure Amounts in excess of the Excess Basket Cure Amount Sellers have elected to pay, if any. Upon execution of this Agreement Purchaser shall have the exclusive right to negotiate the assumption and assignment of each Assumed Contract, including the Cure Amount, with the counterparty to such to-be Assumed Contract pursuant Contract. Notwithstanding the foregoing, Sellers and any Qualified Bidder (as such term is defined in the Bidding Procedures attached hereto as Exhibit A) other than Purchaser, shall have the right to section 365 negotiate the assumption and assignment of any contracts, including the Bankruptcy Code cure amounts, 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 6.12competing offer.

Cure Amounts. Sellers shall transfer and assign all The "Basket Cure Amount" means Cure Amounts up to ------------ the maximum amount of One Hundred Thousand Dollars ($100,000) for those Assumed Contracts which Purchaser and Adaptive mutually agree are necessary for Purchaser 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 proceed with the transactions contemplated in by this Agreement listed on Schedule 2.2(b) hereto (the "Necessary Assumed Contracts"). The Basket Cure --------------- Amount shall be paid by Adaptive from the Purchase Price. If the Cure Amounts necessary to cure all pre-petition defaults under the Necessary Assumed Contracts is equal to or greater than One Hundred Thousand Dollars ($100,000) above the Basket Cure Amount (the "Excess Basket Cure Amount"), Purchaser shall not be obligated to consummate the transactions contemplated by this Agreement (as ultimately determined by and the Bankruptcy Court, Escrow Deposit shall be returned to Purchaser) unless Adaptive or Purchaser elects to pay the “Cure Amounts”)Amounts which exceed the Excess Basket Cure Amount. In connection with the assignment and assumption of the Assumed Contracts, Sellers no event shall cure any defaults under the Assumed Contracts by payment of any Cure Amounts (the "License Cure Amounts") owing under the contract listed on Schedule 2.2(b) (the "License Contract") be --------------- included in the Basket Cure Amount or create reserves therefor) as ordered by the Bankruptcy Court ; Excess Basket Cure Amount, provided, however, that Buyer if the License Cure Amounts exceed the fees receivable under the License Contract (the "License Fee Amount"), Purchaser shall not be obligated to consummate the transactions contemplated by this Agreement and shall be responsible entitled to terminate this Agreement in accordance with the provisions of Section 9.2 hereof, unless Adaptive or Purchaser elect to pay the amount of the License Cure Amounts that exceed the License Fee Amount. The Excess Basket Cure Amount and the License Cure Amounts for the payment of Necessary Assumed Contracts and any Cure Amounts or other costs for the Assumed Contracts that arise as a result of Buyer modifying Schedule 2.1(c) after the signing of this Agreement to add other are not Necessary Assumed Contracts to Schedule 2.1(c) (the “Additional Contracts”). Buyer shall be additionally responsible for any and all the expenses incurred by sole responsibility of Purchaser. No later than three (3) business days prior to the Sellers from the date the Sale Order is entered through and including the date on Closing, Purchaser shall notify Adaptive in writing which an order is entered rejecting the Additional Contracts. Notwithstanding the payment of the Cure Amounts by Sellers or Buyer in excess of the Excess Basket Cure Amount Purchaser has elected to pay, if any. No later than one (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 1) business day prior to the Assumed Contracts. For Closing, Adaptive shall notify Purchaser in writing which of the avoidance of doubt, neither Buyer nor any Affiliate of Buyer shall have any Liability for any Cure Amounts in excess of the Excess Basket Cure Amount Adaptive has elected to pay, if any. Adaptive and Purchaser understand and agree the amounts of the Basket Cure Amount and the Excess Basket Cure Amount were calculated based upon Adaptive's Schedule G to its Bankruptcy Schedules and Statement of Financial Affairs which Adaptive provided to Purchaser. Adaptive's employment contracts shall not be included in the Necessary Assumed Contracts and the related to any Assumed Contract except as provided cure amounts shall not be included in this Section 6.12the proposed Basket Cure Amount and Excess Basket Cure Amount.

Cure Amounts. Sellers shall transfer At Closing 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 Section 365 of the Bankruptcy Code Code, Sellers shall assume and assign to Purchaser the Assumed Contracts. The Cure Amounts, as determined by Purchaser and the Sale Order. As promptly as practicable following counterparties to such contracts or the date hereofBankruptcy Court, Buyer and Sellers shall use commercially reasonable efforts to cooperate and determine the amounts required if any, necessary to cure all defaults, if any, and to all pay all actual or pecuniary losses that have resulted from such defaults under each the Assumed Contract so Contracts, shall be paid by Purchaser, on the Closing Date and upon such payment Purchaser shall have no liability for the Cure Amounts. Notwithstanding the foregoing, in the event the actual Cure Amounts for all Assumed Contracts required to be paid on the Closing Date in accordance with this Agreement exceeds Two Million Dollars ($2,000,000) plus the sum of pre-petition amounts due to certain vendors and suppliers designated by Purchaser and Sellers as "critical vendors" up to permit an amount of One Million Six Hundred and Fifty Thousand Dollars ($1,650,000) to the extent such amounts are not otherwise approved by the Bankruptcy Court and not paid by Sellers post petition (the "Basket Cure Amount"), then Purchaser may, by written notice to Sellers, elect to (i) pay the amount by which the Cure Amount exceeds the Basket Cure Amount (the "Excess Basket Cure Amount") and/or (ii) cause Sellers to reject any Assumed Contract. No later than three (3) business days prior to the Closing, Purchaser shall notify Sellers in writing which of the Cure Amounts in excess of the Excess Basket Cure Amount Purchaser has elected to pay, if any. No later than one (1) business day prior to the Closing, Sellers shall notify Purchaser in writing which of the Cure Amounts in excess of the Excess Basket Cure Amount Sellers have elected to pay, if any. Upon execution of this Agreement Purchaser shall have the exclusive right to negotiate the assumption and assignment of each Assumed Contract, including the Cure Amount, with the counterparty to such to-be Assumed Contract pursuant Contract. Notwithstanding the foregoing, Sellers and any Qualified Bidder (as such term is defined in the Bidding Procedures attached hereto as Exhibit A) other than --------- Purchaser, shall have the right to section 365 negotiate the assumption and assignment of any contracts, including the Bankruptcy Code cure amounts, 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 6.12competing offer.

Cure Amounts. Sellers shall transfer and assign all Assumed Contracts to Buyer or an Affiliate Except as otherwise permitted by the next sentence of Buyer designated by Buyerthis paragraph, and Buyer or such designated Affiliate of Buyer shall assume all Assumed Contracts from Sellers, as of at the Closing Date and pursuant to section Section 365 of the Bankruptcy Code Code, Seller shall assign to Purchaser, and Purchaser shall assume from Seller, the Sale OrderAssigned Contracts, Personal Property Leases, Real Property Leases and Intellectual Property Licenses referred to in Section 2.1. As promptly The cure amounts, if any, 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, necessary to cure all defaults, if any, and to pay all actual or pecuniary losses, if any, that have resulted from any defaults on the part of Seller under the Assigned Contracts, Personal Property Leases, Real Property Leases and Intellectual Property Licenses referred to in Section 2.1 shall be paid by Purchaser (or Purchaser shall have delivered into escrow on terms reasonably acceptable to Seller amounts sufficient to pay any claim therefor that remains disputed as of the Closing, as such amount shall have been determined by the Bankruptcy Court) at or before the Closing (except as otherwise agreed to by the other party to the Assigned Contracts, Personal Property Leases, Real Property Leases and Intellectual Property Licenses referred to in Section 2.1) and Seller shall have no liability for any such cure amount; provided, however, that, if the aggregate of all such cure amounts (including such reserved amounts) as of the anticipated Closing Date is in excess of one hundred and ten percent (110%) of the aggregate amount set forth on Schedule 2.5, Purchaser shall not be required to pay any of such amounts as Purchaser selects by notice given to Seller not less than three (3) Business Days before the Closing Date which amounts, if paid, would result in Purchaser’s payment of cure amounts aggregating more than such sum and Purchaser may instead exclude the Assigned Contract, Personal Property Lease, Real Property Lease or Intellectual Property License to which such cure amount relates from among the Purchased Assets; provided further, however, that Seller in such event may in its discretion elect by notice to Purchaser given before the Closing to pay the cure amount associated therewith, in which case Purchaser at the Closing shall assume such Assigned Contract, Personal Property Lease, Real Property Lease or Intellectual Property License. The cure amounts to be paid by Purchaser in accordance with the foregoing provisions of this Section 2.5 are hereinafter sometimes referred to as the “Cure Amounts”). In connection with Without limiting Seller’s obligations under Section 8.3, Purchaser shall not have 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 right to terminate this Agreement as a result of Buyer modifying Schedule 2.1(cthe failure by Seller or inability of Seller to assign to Purchaser (on terms and conditions no less favorable than those in existence as of the date hereof) after at the signing Closing any Assigned Contract, Personal Property Lease, Real Property Lease or Intellectual Property License referred to in Section 2.1 or Purchaser’s decision not to assume any Assigned Contract, Personal Property Lease, Real Property Lease of Intellectual Property License as to which Purchaser has not paid the related Cure Amount in accordance with the second sentence of this Agreement to add other Contracts to Schedule 2.1(c) (Section 2.5, unless any such failure or inability results in a Material Adverse Effect. To the “Additional Contracts”). Buyer shall be additionally responsible for any and all the expenses incurred by the Sellers from Knowledge of Seller, an estimate as of 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 hereof 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 described in this Section 6.122.5 is set forth on Schedule 2.5.

Cure Amounts. Sellers shall transfer and assign all Assumed Contracts to Buyer or an Affiliate Except as otherwise permitted by the next sentence of Buyer designated by Buyerthis paragraph, and Buyer or such designated Affiliate of Buyer shall assume all Assumed Contracts from Sellers, as of at the Closing Date and pursuant to section Section 365 of the Bankruptcy Code and Code, the Sale Order. As promptly as practicable following the date hereof, Buyer and Sellers shall use commercially reasonable efforts assign to cooperate Purchaser, and determine Purchaser shall assume from the amounts required Sellers, the Assigned Contracts, Personal Property Leases, Real Property Leases and Intellectual Property Licenses referred to in Section 2.1. The cure all defaults under each Assumed Contract so amounts, if any, 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, necessary to cure all defaults, if any, and to pay all actual or pecuniary losses, if any, that have resulted from any defaults on the part of the Sellers under the Assigned Contracts, Personal Property Leases, Real Property Leases and Intellectual Property Licenses referred to in Section 2.1 shall be paid by Purchaser (or Purchaser shall have delivered into escrow on terms reasonably acceptable to SVCMC amounts sufficient to pay any claim therefor that remains disputed as of the Closing, as such amount shall have been determined by the Bankruptcy Court) at or before the Closing, (except as otherwise agreed to by the other party to the Assigned Contracts, Personal Property Leases, Real Property Leases and Intellectual Property Licenses referred to in Section 2.1) and the Sellers shall have no liability for any such cure amount; provided, however, that, if the aggregate of all such cure amounts (including such reserved amounts) as of the anticipated Closing Date is in excess of five hundred and fifty-six thousand dollars ($556,000), Purchaser shall not be required to pay any of such amounts as Purchaser selects by notice given to SVCMC not less than three (3) Business Days before the Closing Date which amounts, if paid, would result in Purchaser’s payment of cure amounts aggregating more than such sum and Purchaser may instead exclude the Assigned Contract, Personal Property Lease, Real Property Lease or Intellectual Property License to which such cure amount relates from among the Purchased Assets; provided further, however, that SVCMC in such event may in its discretion elect by notice to Purchaser given before the Closing to pay the cure amount associated therewith, in which case Purchaser at the Closing shall assume such Assigned Contract, Personal Property Lease, Real Property Lease or Intellectual Property License. The cure amounts to be paid by Purchaser in accordance with the foregoing provisions of this Section 2.5 are hereinafter sometimes referred to as the “Cure Amounts”). In connection with Without limiting the assignment and assumption of Sellers’ obligations under Section 8.3, Purchaser shall not have 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 right to terminate this Agreement 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 failure by the Sellers from or inability of the Sellers to assign to Purchaser (on terms and conditions no less favorable than those in existence as of the date hereof) at the Sale Order is entered through and including Closing any Assigned Contract, Personal Property Lease, Real Property Lease or Intellectual Property License referred to in Section 2.1 or Purchaser’s decision not to assume any Assigned Contract, Personal Property Lease, Real Property Lease of Intellectual Property License as to which Purchaser has not paid the related Cure Amount in accordance with the second sentence of this Section 2.5, unless any such failure or inability results in a Material Adverse Effect. To the Knowledge of the Sellers, an estimate as of the date on which an order is entered rejecting the Additional Contracts. Notwithstanding the payment hereof 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 described in this Section 6.122.5 is set forth on Schedule 2.5.