Common use of Assignment of Certain Acquired Assets Clause in Contracts

Assignment of Certain Acquired Assets. (a) Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall not constitute an agreement to assign or transfer any Acquired Asset or any claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment or transfer thereof, without the consent of a third party (including any Governmental Entity), would after giving effect to the Sale Order and the Bankruptcy Code, constitute a breach or other contravention thereof or a violation of Law or Order by the Bankruptcy Court, or be ineffective with respect to any party to a Contract concerning such Acquired Asset, in each case that cannot be excused or rendered ineffective by operation of the Bankruptcy Code (or the Sale Order) or applicable non-bankruptcy Law; provided, that nothing in this Section 2.6 shall modify any representation or warranty of the Sellers under this Agreement. To the extent that the parties hereto have been unable to obtain any consent that Buyer reasonably deems necessary be obtained for the transfer to Buyer of any of the Acquired Assets by the Closing: (a) such Acquired Asset (a “Specified Asset”) shall not be assigned or transferred to Buyer until such time as such consent is obtained; and (b) Sellers and Buyer shall cooperate with one another to obtain such consent as promptly as practicable thereafter. Until such consent is obtained, Sellers shall use commercially reasonable efforts to preserve such Specified Asset and shall cooperate, and shall use their reasonable efforts to cause their Representatives to cooperate, with Buyer in any lawful arrangement designed to provide Buyer with the benefits of such Specified Assets at no cost to the Buyer in excess of the cost Buyer would have incurred (without modification to the terms of any Contract) if the consent had been obtained, provided, that, the Sellers shall bear no cost or expense with respect to any Specified Assets and all economic burdens associated with the Specified Assets shall be borne by Buyer. If a required consent with respect to a Specified Asset is obtained after the Closing Date, the Specified Asset subject to such consent shall be deemed to have been assigned and transferred to Buyer as of the date such Consent is effective (and all references to the Closing Date shall be deemed to be the effective date of such consent with respect to such Specified Asset). Sellers hereby irrevocably nominate, constitute and appoint Xxxxx as the true and lawful attorney-in-fact of Seller (with full power of substitution) effective as of the Closing, and hereby authorize Buyer, in the name of and on behalf of the applicable Seller, to execute, deliver, acknowledge, certify, file and record any document, to institute and prosecute any Proceeding and to take any other action (on or at any time after the date of this Agreement) that Buyer may deem appropriate for the purpose of: (i) collecting, asserting, enforcing or perfecting any claim, right or interest of any kind that is included in or relates to any of the Acquired Assets; (ii) defending or compromising any Proceeding relating to any of the Acquired Assets; or (iii) otherwise carrying out or facilitating any of the Transactions. The power of attorney referred to in the preceding sentence is and shall be coupled with an interest and shall be irrevocable, and shall survive the dissolution or insolvency of Sellers. Upon obtaining any such consent applicable to such Acquired Asset after the Closing, such Acquired Asset shall promptly be transferred and assigned to Buyer in accordance with the terms of this Agreement. (b) If prior to or following Closing, it is discovered that a Contract was not previously provided to Buyer and, accordingly, such Contract is not listed on Schedule 4.9(a) (any such Contract, a “Sellers’ Previously Omitted Contract”), Sellers shall, promptly following the discovery thereof, notify Buyer in writing of such Sellers’ Previously Omitted Contract. Buyer shall thereafter deliver written notice to Sellers, no later than ten (10) Business Days following notification of such Sellers’ Previously Omitted Contract from Sellers, designating such Sellers’ Previously Omitted Contract as “Assumed” or “Rejected.” If at any point following Closing, Buyer elects to add any additional Contract to Schedule 2.5(a) that was not (i) listed on Schedule 2.5(a) as of Closing and (ii) rejected pursuant to a bankruptcy court order (any such Contract, a “Buyer Previously Omitted Contract” and together with Seller’s Previously Omitted Contract, a “Previously Omitted Contract”), Buyer shall notify Seller in writing of its designation of such Buyer Previously Omitted Contract as “Assumed.” If Buyer designates a Seller Previously Omitted Contract as “Assumed,” Schedule 2.5(a) shall be amended to include such Previously Omitted Contract and Sellers shall serve a notice (the “Previously Omitted Contract Notice”) on the counterparties to such Previously Omitted Contract of the Cure Costs with respect to such Previously Omitted Contract and Sellers’ intention to assume and assign such Previously Omitted Contract in accordance with this Agreement. The Previously Omitted Contract Notice shall provide the counterparties to such Previously Omitted Contract with ten (10) days to object, in writing to Sellers and Buyer, to the Cure Costs or the assumption of its Contract; and if the counterparties, Sellers and Buyer are unable to reach a consensual resolution with respect to such objection, Sellers will file all pleadings required to seek a timely hearing before the Bankruptcy Court to determine the applicable Cure Costs (to the extent not previously determined) and obtain approval of the assumption of the Previously Omitted Contract and payment by Buyer or Sellers (as applicable) of such applicable Cure Cost. (c) If Buyer designates a Sellers’ Previously Omitted Contract as “Assumed,” Sellers shall amend Schedule 2.5(a) and, at Sellers’ expense (other than Cure Costs, which, for the avoidance of doubt, shall be paid by Buyer or Sellers, as applicable, as set forth in Section 2.5(c) hereof), take all other steps necessary to assume and assign the Sellers’ Previously Omitted Contract to Buyer and Buyer shall reimburse Seller for any costs or expenses incurred by Seller after Closing for such Buyer Previously Omitted Contract. If Buyer designates a Buyer Previously Omitted Contract as “Assumed,” Sellers shall amend Schedule 2.5(a) and, at Buyer’s expense, take all other steps necessary to assume and assign the Buyer Previously Omitted Contract to Buyer and Buyer shall reimburse Sellers for any costs or expenses incurred by Seller (other than Cure Costs, which, for the avoidance of doubt, shall be paid by Buyer or Sellers, as applicable, as set forth in Section 2.5(c) hereof) after Closing for such Buyer Previously Omitted Contract. (d) On the terms and conditions set forth in this Agreement, Buyer shall have the sole and exclusive right to select, identify and designate the Assumed Contracts. (e) Upon objection by the Contract counterparty to the proposed Cure Costs asserted by Sellers with regard to any Contract (such contract, a “Disputed Contract”) Sellers shall, at Buyer’s prior written direction, either settle the objection of such party or shall litigate such objection (at Buyer’s expense if after Closing). In no event shall Sellers settle a Cure Costs objection with regard to any Contract without the express written consent of Buyer (with an email consent being sufficient). Upon entry of an Order determining any Cure Costs regarding any Disputed Contract (the “Disputed Contract Order”), Buyer shall have the option to designate the Disputed Contract as an Excluded Asset, in which case, for the avoidance of doubt, Buyer shall not assume the Disputed Contract. Sellers agrees that it will promptly take such commercially reasonable actions as are necessary to obtain a final Order of the Bankruptcy Court providing for the assumption and assignment of Assumed Contracts.

Assignment of Certain Acquired Assets. (a) Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall not constitute an agreement to assign assignment or transfer of any Acquired Asset or any claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment or transfer thereof, without the consent of a third party (including any Governmental Entity)party, would after giving effect to the Sale Order and the Bankruptcy Code, constitute a breach or other contravention thereof or a violation would in any way adversely affect the rights of Law Buyer or Order by the Bankruptcy CourtAsset Sellers (as applicable) thereto or thereunder, and such consent has not been obtained on or prior to the Closing. Subject to Section 5.04(a), Seller will, and will cause each of the other Asset Sellers (and to the extent practicable, their respective Affiliates) to, use its reasonable best efforts to obtain any consent necessary for the transfer or assignment of any such Acquired Asset claim, right or benefit to Buyer; provided, however, that in no event shall Seller have any obligation to pay any consent fee or make any other payment of any kind in connection with obtaining any such consent. If on the Closing Date any such consent is not obtained, or if an attempted transfer or assignment thereof would be ineffective or would adversely affect the rights of Buyer so that Buyer would not in fact receive all such rights, and (i) the Asset Sellers and Buyer will, subject to Section 5.04(a), cooperate in a mutually agreeable arrangement under which Buyer would obtain the benefits and assume the obligations and bear the economic burdens associated with respect to any party to a Contract concerning such Acquired Asset, claim, right or benefit in each case that cannot be excused or rendered ineffective by operation of the Bankruptcy Code (or the Sale Order) or applicable non-bankruptcy Law; provided, that nothing in this Section 2.6 shall modify any representation or warranty of the Sellers under accordance with this Agreement. To , including subcontracting, sublicensing or subleasing to Buyer, or under which the extent that the parties hereto have been unable to obtain any consent that Buyer reasonably deems necessary be obtained Asset Sellers would enforce for the transfer benefit of Buyer any and all of their rights against a third party associated with such Acquired Asset, claim, right or benefit (collectively, “Third Party Rights”), and the Asset Sellers would promptly pay to Buyer of when received all monies received by them under any of the Acquired Assets by the Closing: such Transferred Asset, claim, right or benefit, (aii) such Acquired Asset (a “Specified Asset”) shall not be assigned or transferred to Buyer until such time as such consent is obtained; and (b) Sellers and Buyer shall cooperate with one another to obtain such consent as promptly as practicable thereafter. Until such consent is obtained, Sellers shall use commercially reasonable efforts to preserve such Specified Asset and shall cooperate, and shall use their reasonable efforts to cause their Representatives to cooperate, with Buyer in any lawful arrangement designed to provide Buyer with the benefits of such Specified Assets at no cost to the Buyer in excess of the cost Buyer would have incurred (without modification to the terms of any Contract) if the consent had been obtained, provided, that, the Sellers shall bear no cost or expense with respect to any Specified Assets and all economic burdens associated with the Specified Assets shall be borne by Buyer. If a required consent with respect to a Specified Asset is obtained after the Closing Date, the Specified Asset subject to such consent shall be deemed to have been assigned Section 5.04(a), Seller will, and transferred to Buyer as will cause each of the date such Consent is effective (and all references other Asset Sellers to, continue to the Closing Date shall be deemed use its reasonable best efforts to be the effective date of such obtain any consent with respect to such Specified Asset). Sellers hereby irrevocably nominate, constitute and appoint Xxxxx as the true and lawful attorney-in-fact of Seller (with full power of substitution) effective as of the Closing, and hereby authorize Buyer, in the name of and on behalf of the applicable Seller, to execute, deliver, acknowledge, certify, file and record any document, to institute and prosecute any Proceeding and to take any other action (on or at any time after the date of this Agreement) that Buyer may deem appropriate necessary for the purpose of: (i) collecting, asserting, enforcing transfer or perfecting assignment of any such Acquired Asset claim, right or interest benefit to Buyer, and, upon the receipt of any kind that is included in or relates to any of the Acquired Assets; (ii) defending or compromising any Proceeding relating to any of the Acquired Assets; or (iii) otherwise carrying out or facilitating any of the Transactions. The power of attorney referred to in the preceding sentence is and shall be coupled with an interest and shall be irrevocablesuch consent, and shall survive the dissolution or insolvency of Sellers. Upon obtaining any such consent applicable to will immediately transfer such Acquired Asset after the Closing, such Acquired Asset shall promptly be transferred and assigned to Buyer in accordance with the terms of this AgreementBuyer. (b) If prior to or following Closing, it is discovered that a Contract was not previously provided to Buyer and, accordingly, such Contract is not listed on Schedule 4.9(a) (any such Contract, a “Sellers’ Previously Omitted Contract”), Sellers shall, promptly following the discovery thereof, notify Buyer in writing of such Sellers’ Previously Omitted Contract. Buyer shall thereafter deliver written notice to Sellers, no later than ten (10) Business Days following notification of such Sellers’ Previously Omitted Contract from Sellers, designating such Sellers’ Previously Omitted Contract as “Assumed” or “Rejected.” If at any point following Closing, Buyer elects to add any additional Contract to Schedule 2.5(a) that was not (i) listed on Schedule 2.5(a) as of Closing and (ii) rejected pursuant to a bankruptcy court order (any such Contract, a “Buyer Previously Omitted Contract” and together with Seller’s Previously Omitted Contract, a “Previously Omitted Contract”), Buyer shall notify Seller in writing of its designation of such Buyer Previously Omitted Contract as “Assumed.” If Buyer designates a Seller Previously Omitted Contract as “Assumed,” Schedule 2.5(a) shall be amended to include such Previously Omitted Contract and Sellers shall serve a notice (the “Previously Omitted Contract Notice”) on the counterparties to such Previously Omitted Contract of the Cure Costs with respect to such Previously Omitted Contract and Sellers’ intention to assume and assign such Previously Omitted Contract in accordance with this Agreement. The Previously Omitted Contract Notice shall provide the counterparties to such Previously Omitted Contract with ten (10) days to object, in writing to Sellers and Buyer, to the Cure Costs or the assumption of its Contract; and if the counterparties, Sellers and Buyer are unable to reach a consensual resolution with respect to such objection, Sellers will file all pleadings required to seek a timely hearing before the Bankruptcy Court to determine the applicable Cure Costs (to the extent not previously determined) and obtain approval of the assumption of the Previously Omitted Contract and payment by Buyer or Sellers (as applicable) of such applicable Cure Cost. (c) If Buyer designates a Sellers’ Previously Omitted Contract as “Assumed,” Sellers shall amend Schedule 2.5(a) and, at Sellers’ expense (other than Cure Costs, which, for the avoidance of doubt, shall be paid by Buyer or Sellers, as applicable, as set forth in Section 2.5(c) hereof), take all other steps necessary to assume and assign the Sellers’ Previously Omitted Contract to Buyer and Buyer shall reimburse Seller for any costs or expenses incurred by Seller after Closing for such Buyer Previously Omitted Contract. If Buyer designates a Buyer Previously Omitted Contract as “Assumed,” Sellers shall amend Schedule 2.5(a) and, at Buyer’s expense, take all other steps necessary to assume and assign the Buyer Previously Omitted Contract to Buyer and Buyer shall reimburse Sellers for any costs or expenses incurred by Seller (other than Cure Costs, which, for the avoidance of doubt, shall be paid by Buyer or Sellers, as applicable, as set forth in Section 2.5(c) hereof) after Closing for such Buyer Previously Omitted Contract. (d) On the terms and conditions set forth in this Agreement, Buyer shall have the sole and exclusive right to select, identify and designate the Assumed Contracts. (e) Upon objection by the Contract counterparty to the proposed Cure Costs asserted by Sellers with regard to any Contract (such contract, a “Disputed Contract”) Sellers shall, at Buyer’s prior written direction, either settle the objection of such party or shall litigate such objection (at Buyer’s expense if after Closing). In no event shall Sellers settle a Cure Costs objection with regard to any Contract without the express written consent of Buyer (with an email consent being sufficient). Upon entry of an Order determining any Cure Costs regarding any Disputed Contract (the “Disputed Contract Order”), Buyer shall have the option to designate the Disputed Contract as an Excluded Asset, in which case, for the avoidance of doubt, Buyer shall not assume the Disputed Contract. Sellers agrees that it will promptly take such commercially reasonable actions as are necessary to obtain a final Order of the Bankruptcy Court providing for the assumption and assignment of Assumed Contracts.

Assignment of Certain Acquired Assets. (a) Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall not constitute an agreement to assign or transfer any Acquired Asset or any claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment or transfer thereof, without the consent of a third party (including any Governmental Entity), would after giving effect to the Sale Order and the Bankruptcy Code, constitute a breach or other contravention thereof or a violation of Law or Order by the Bankruptcy Court, or be ineffective with respect to any party to a Contract concerning such Acquired Asset, in each case that cannot be excused or rendered ineffective by operation of the Bankruptcy Code (or the Sale Order) or applicable non-bankruptcy Law; provided, that nothing in this Section 2.6 shall modify any representation or warranty of the Sellers under this Agreement. To the extent that the parties hereto have been unable to obtain any consent that Buyer reasonably deems necessary be obtained for the transfer to Buyer of any of the Acquired Assets by the Closing: (a) such Acquired Asset (a “Specified Asset”) shall not be assigned or transferred to Buyer until such time as such consent is obtained; and (b) Sellers and Buyer shall cooperate with one another to obtain such consent as promptly as practicable thereafter. Until such consent is obtained, Sellers shall use commercially reasonable efforts to preserve such Specified Asset and shall cooperate, and shall use their reasonable efforts to cause their Representatives to cooperate, with Buyer in any lawful arrangement designed to provide Buyer with the benefits of such Specified Assets at no cost to the Buyer in excess of the cost Buyer would have incurred (without modification to the terms of any Contract) if the consent had been obtained, provided, that, the Sellers shall bear no cost or expense with respect to any Specified Assets and all economic burdens associated with the Specified Assets shall be borne by Buyer. If a required consent with respect to a Specified Asset is obtained after the Closing Date, the Specified Asset subject to such consent shall be deemed to have been assigned and transferred to Buyer as of the date such Consent is effective (and all references to the Closing Date shall be deemed to be the effective date of such consent with respect to such Specified Asset). Sellers hereby irrevocably nominate, constitute and appoint Xxxxx as the true and lawful attorney-in-fact of Seller (with full power of substitution) effective as of the Closing, and hereby authorize Buyer, in the name of and on behalf of the applicable Seller, to execute, deliver, acknowledge, certify, file and record any document, to institute and prosecute any Proceeding and to take any other action (on or at any time after the date of this Agreement) that Buyer may deem appropriate for the purpose of: (i) collecting, asserting, enforcing or perfecting any claim, right or interest of any kind that is included in or relates to any of the Acquired Assets; (ii) defending or compromising any Proceeding relating to any of the Acquired Assets; or (iii) otherwise carrying out or facilitating any of the Transactions. The power of attorney referred to in the preceding sentence is and shall be coupled with an interest and shall be irrevocable, and shall survive the dissolution or insolvency of Sellers. Upon obtaining any such consent applicable to such Acquired Asset after the Closing, such Acquired Asset shall promptly be transferred and assigned to Buyer in accordance with the terms of this Agreement. (b) If prior to or following Closing, it is discovered that a Contract was not previously provided to Buyer and, accordingly, such Contract is not listed on Schedule Section 4.9(a) of the Disclosure Schedule (any such Contract, a “Sellers’ Previously Omitted Contract”), Sellers shall, promptly following the discovery thereof, notify Buyer in writing of such Sellers’ Previously Omitted Contract. Buyer shall thereafter deliver written notice to Sellers, no later than ten (10) Business Days following notification of such Sellers’ Previously Omitted Contract from Sellers, designating such Sellers’ Previously Omitted Contract as “Assumed” or “Rejected.” If at any point following Closing, Buyer elects to add any additional Contract to Schedule 2.5(a) that was not (i) listed on Schedule 2.5(a) as of Closing and (ii) rejected pursuant to a bankruptcy court order (any such Contract, a “Buyer Previously Omitted Contract” and together with Seller’s Previously Omitted Contract, a “Previously Omitted Contract”), Buyer shall notify Seller in writing of its designation of such Buyer Previously Omitted Contract as “Assumed.” If Buyer designates a Seller Previously Omitted Contract as “Assumed,” Schedule 2.5(a) shall be amended to include such Previously Omitted Contract and Sellers shall serve a notice (the “Previously Omitted Contract Notice”) on the counterparties to such Previously Omitted Contract of the Cure Costs with respect to such Previously Omitted Contract and Sellers’ intention to assume and assign such Previously Omitted Contract in accordance with this Agreement. The Previously Omitted Contract Notice shall provide the counterparties to such Previously Omitted Contract with ten (10) days to object, in writing to Sellers and Buyer, to the Cure Costs or the assumption of its Contract; and if the counterparties, Sellers and Buyer are unable to reach a consensual resolution with respect to such objection, Sellers will file all pleadings required to seek a timely hearing before the Bankruptcy Court to determine the applicable Cure Costs (to the extent not previously determined) and obtain approval of the assumption of the Previously Omitted Contract and payment by Buyer or Sellers (as applicable) of such applicable Cure Cost. (c) If Buyer designates a Sellers’ Previously Omitted Contract as “Assumed,” Sellers shall amend Schedule 2.5(a) and, at Sellers’ expense (other than Cure Costs, which, for the avoidance of doubt, shall be paid by Buyer or Sellers, as applicable, as set forth in Section 2.5(c) hereof), take all other steps necessary to assume and assign the Sellers’ Previously Omitted Contract to Buyer and Buyer shall reimburse Seller for any costs or expenses incurred by Seller after Closing for such Buyer Previously Omitted Contract. If Buyer designates a Buyer Previously Omitted Contract as “Assumed,” Sellers shall amend Schedule 2.5(a) and, at Buyer’s expense, take all other steps necessary to assume and assign the Buyer Previously Omitted Contract to Buyer and Buyer shall reimburse Sellers for any costs or expenses incurred by Seller (other than Cure Costs, which, for the avoidance of doubt, shall be paid by Buyer or Sellers, as applicable, as set forth in Section 2.5(c) hereof) after Closing for such Buyer Previously Omitted Contract. (d) On the terms and conditions set forth in this Agreement, Buyer shall have the sole and exclusive right to select, identify and designate the Assumed Contracts. (e) Upon objection by the Contract counterparty to the proposed Cure Costs asserted by Sellers with regard to any Contract (such contract, a “Disputed Contract”) Sellers shall, at Buyer’s prior written direction, either settle the objection of such party or shall litigate such objection (at Buyer’s expense if after Closing). In no event shall Sellers settle a Cure Costs objection with regard to any Contract without the express written consent of Buyer (with an email consent being sufficient). Upon entry of an Order determining any Cure Costs regarding any Disputed Contract (the “Disputed Contract Order”), Buyer shall have the option to designate the Disputed Contract as an Excluded Asset, in which case, for the avoidance of doubt, Buyer shall not assume the Disputed Contract. Sellers agrees that it will promptly take such commercially reasonable actions as are necessary to obtain a final Order of the Bankruptcy Court providing for the assumption and assignment of Assumed Contracts.

Assignment of Certain Acquired Assets. (a) Notwithstanding any other provision of anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to sell, convey, assign or transfer any Acquired Asset or any claim or right or any benefit arising thereunder or resulting therefrom of the Contracts, if an attempted sale, conveyance, assignment or transfer thereof, without the consent or approval of another party thereto or a third party Governmental Authority (including any Governmental Entityas defined herein), would after giving effect to the Sale Order and the Bankruptcy Code, constitute a breach or other contravention thereof or a violation of Law or Order by the Bankruptcy Courtof, or be ineffective in any way affect the rights of Next Generation, Research, Xxxxxx or Xxxxxx Securities with respect to any party to a Contract concerning such Acquired Asset, in each case that cannot be excused or rendered ineffective by operation Contracts (the “Non-assignable Contracts”). Within 45 days of the Bankruptcy Code (or Closing Date, at the Sale Order) or applicable non-bankruptcy Law; providedcost and expense of Next Generation, that nothing in this Section 2.6 shall modify any representation or warranty of the Sellers under this Agreement. To the extent that the parties hereto have been unable to obtain any consent that Buyer reasonably deems necessary be obtained for the transfer to Buyer of any of the Acquired Assets by the Closing: (a) such Acquired Asset (a “Specified Asset”) shall not be assigned or transferred to Buyer until such time as such consent is obtained; and (b) Sellers and Buyer shall cooperate with one another to obtain such consent as promptly as practicable thereafter. Until such consent is obtained, Sellers Next Generation shall use commercially reasonable efforts to preserve obtain all of the consents, novations and approvals listed in Schedule 1.8 of the Next Generation Disclosure Schedule with respect to the Non-assignable Contracts being transferred to Xxxxxx Securities on the Closing Date. If any such Specified Asset consent is not obtained, at the cost and shall cooperateexpense of Next Generation, and Next Generation shall use their commercially reasonable efforts to cause their Representatives to cooperate, cooperate with Buyer in any lawful arrangement designed Xxxxxx Securities to provide Buyer for Xxxxxx Securities’ rights and benefits under any or all of such Non-assignable Contracts, including, without limitation, (i) providing Xxxxxx Securities with the benefits of and preserving for the benefit of Xxxxxx Securities the rights of Next Generation under such Specified Assets at no cost to the Buyer in excess Non-assignable Contracts, and (ii) facilitating receipt of the cost Buyer would have incurred (without modification consideration to be received by Next Generation in and under every such Non-assignable Contracts, which consideration shall be held for the terms of benefit of, and shall be delivered to, Xxxxxx Securities. Next Generation shall reimburse Xxxxxx Securities for any Contract) if the consent had been obtained, provided, that, the Sellers shall bear no cost or expense with respect to any Specified Assets and all economic burdens associated reasonable out-of-pocket costs and expenses incurred by Xxxxxx Securities in connection with the Specified Assets shall be borne by Buyer. If a required consent with respect seeking to a Specified Asset is obtained obtain or obtaining any such consent, novation or approval after the Closing Date, the Specified Asset subject to such consent shall be deemed to have been assigned and transferred to Buyer as of the date such Consent is effective (and all references to the Closing Date shall be deemed to be the effective date of such consent with respect to such Specified Asset). Sellers hereby irrevocably nominate, constitute and appoint Xxxxx as the true and lawful attorney-in-fact of Seller (with full power of substitution) effective as of the Closing, and hereby authorize Buyer, in the name of and on behalf of the applicable Seller, to execute, deliver, acknowledge, certify, file and record any document, to institute and prosecute any Proceeding and to take any other action (on or at any time after the date of this Agreement) that Buyer may deem appropriate for the purpose of: (i) collecting, asserting, enforcing or perfecting any claim, right or interest of any kind that is included in or relates to any of the Acquired Assets; (ii) defending or compromising any Proceeding relating to any of the Acquired Assets; or (iii) otherwise carrying out or facilitating any of the Transactions. The power of attorney referred to in the preceding sentence is and shall be coupled with an interest and shall be irrevocable, and shall survive the dissolution or insolvency of Sellers. Upon obtaining any such consent applicable to such Acquired Asset after the Closing, such Acquired Asset shall promptly be transferred and assigned to Buyer in accordance with the terms of this Agreement. (b) If prior to or following Closing, it is discovered that a Contract was not previously provided to Buyer and, accordingly, such Contract is not listed on Schedule 4.9(a) (any such Contract, a “Sellers’ Previously Omitted Contract”), Sellers shall, promptly following the discovery thereof, notify Buyer in writing of such Sellers’ Previously Omitted Contract. Buyer shall thereafter deliver written notice to Sellers, no later than ten (10) Business Days following notification of such Sellers’ Previously Omitted Contract from Sellers, designating such Sellers’ Previously Omitted Contract as “Assumed” or “Rejected.” If at any point following Closing, Buyer elects to add any additional Contract to Schedule 2.5(a) that was not (i) listed on Schedule 2.5(a) as of Closing and (ii) rejected pursuant to a bankruptcy court order (any such Contract, a “Buyer Previously Omitted Contract” and together with Seller’s Previously Omitted Contract, a “Previously Omitted Contract”), Buyer shall notify Seller in writing of its designation of such Buyer Previously Omitted Contract as “Assumed.” If Buyer designates a Seller Previously Omitted Contract as “Assumed,” Schedule 2.5(a) shall be amended to include such Previously Omitted Contract and Sellers shall serve a notice (the “Previously Omitted Contract Notice”) on the counterparties to such Previously Omitted Contract of the Cure Costs with respect to such Previously Omitted Contract and Sellers’ intention to assume and assign such Previously Omitted Contract in accordance with this Agreement. The Previously Omitted Contract Notice shall provide the counterparties to such Previously Omitted Contract with ten (10) days to object, in writing to Sellers and Buyer, to the Cure Costs or the assumption of its Contract; and if the counterparties, Sellers and Buyer are unable to reach a consensual resolution with respect to such objection, Sellers will file all pleadings required to seek a timely hearing before the Bankruptcy Court to determine the applicable Cure Costs (to the extent not previously determined) and obtain approval of the assumption of the Previously Omitted Contract and payment by Buyer or Sellers (as applicable) of such applicable Cure Cost. (c) If Buyer designates a Sellers’ Previously Omitted Contract as “Assumed,” Sellers shall amend Schedule 2.5(a) and, at Sellers’ expense (other than Cure Costs, which, for the avoidance of doubt, shall be paid by Buyer or Sellers, as applicable, as set forth in Section 2.5(c) hereof), take all other steps necessary to assume and assign the Sellers’ Previously Omitted Contract to Buyer and Buyer shall reimburse Seller for any costs or expenses incurred by Seller after Closing for such Buyer Previously Omitted Contract. If Buyer designates a Buyer Previously Omitted Contract as “Assumed,” Sellers shall amend Schedule 2.5(a) and, at Buyer’s expense, take all other steps necessary to assume and assign the Buyer Previously Omitted Contract to Buyer and Buyer shall reimburse Sellers for any costs or expenses incurred by Seller (other than Cure Costs, which, for the avoidance of doubt, shall be paid by Buyer or Sellers, as applicable, as set forth in Section 2.5(c) hereof) after Closing for such Buyer Previously Omitted Contract. (d) On the terms and conditions set forth in this Agreement, Buyer shall have the sole and exclusive right to select, identify and designate the Assumed Contracts. (e) Upon objection by the Contract counterparty to the proposed Cure Costs asserted by Sellers with regard to any Contract (such contract, a “Disputed Contract”) Sellers shall, at Buyer’s prior written direction, either settle the objection of such party or shall litigate such objection (at Buyer’s expense if after Closing). In no event shall Sellers settle a Cure Costs objection with regard to any Contract without the express written consent of Buyer (with an email consent being sufficient). Upon entry of an Order determining any Cure Costs regarding any Disputed Contract (the “Disputed Contract Order”), Buyer shall have the option to designate the Disputed Contract as an Excluded Asset, in which case, for the avoidance of doubt, Buyer shall not assume the Disputed Contract. Sellers agrees that it will promptly take such commercially reasonable actions as are necessary to obtain a final Order of the Bankruptcy Court providing for the assumption and assignment of Assumed Contracts.

Assignment of Certain Acquired Assets. (a) Notwithstanding any other provision of anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to assign sell, convey, assign, or transfer any of the Acquired Asset or any claim or right or any benefit arising thereunder or resulting therefrom Assets, including the Seller Contracts, if an attempted assignment sale, conveyance, assignment, or transfer thereof, without the consent or approval of another party thereto or a third party (including any Governmental Entity), Entity or regulatory agency would after giving effect to the Sale Order and the Bankruptcy Code, constitute a breach or other contravention thereof or a violation of Law or Order by the Bankruptcy Courtof, or be ineffective in any way affect the rights of Seller or Buyer with respect to any party to a Contract concerning such Acquired Asset, in each case that cannot be excused or rendered ineffective by operation of the Bankruptcy Code (or the Sale Order) or applicable non-bankruptcy Law; provided, that nothing in this Section 2.6 shall modify any representation or warranty of the Sellers under this Agreement. To the extent that the parties hereto have been unable to obtain any consent that Buyer reasonably deems necessary be obtained for the transfer to Buyer of any of the Acquired Assets by the Closing: (a) such Acquired Asset (a the “Specified AssetNonassignable Items”) shall not be assigned ). On or transferred prior to Buyer until such time as such consent is obtained; each Closing Date, at the cost and (b) Sellers and Buyer shall cooperate with one another to obtain such consent as promptly as practicable thereafter. Until such consent is obtainedexpense of Seller, Sellers Seller shall use commercially reasonable efforts to preserve obtain all of the consents, novations and approvals listed on Schedule 1.8 with respect to the Nonassignable Items being assigned or transferred to Buyer on such Specified Asset Closing Date. If any such consent is not obtained, at the cost and shall cooperateexpense of Seller, and Seller shall use their commercially reasonable efforts to cause their Representatives to cooperate, cooperate with Buyer in any lawful arrangement designed to provide for Buyer’s rights and benefits under any or all of such Nonassignable Items until December 31, 2006, including, without limitation, (i) providing Buyer with the benefits of such Specified Assets at no cost to and preserving for the benefit of Buyer in excess of the cost Buyer would have incurred (without modification to the terms of any Contract) if the consent had been obtained, provided, that, the Sellers shall bear no cost or expense with respect to any Specified Assets and all economic burdens associated with the Specified Assets shall be borne by Buyer. If a required consent with respect to a Specified Asset is obtained after the Closing Date, the Specified Asset subject to such consent shall be deemed to have been assigned and transferred to Buyer as of the date such Consent is effective (and all references to the Closing Date shall be deemed to be the effective date of such consent with respect to such Specified Asset). Sellers hereby irrevocably nominate, constitute and appoint Xxxxx as the true and lawful attorney-in-fact rights of Seller (with full power of substitution) effective as of the Closingunder such Nonassignable Items, and hereby authorize Buyer, in the name of and on behalf of the applicable Seller, to execute, deliver, acknowledge, certify, file and record any document, to institute and prosecute any Proceeding and to take any other action (on or at any time after the date of this Agreement) that Buyer may deem appropriate for the purpose of: (i) collecting, asserting, enforcing or perfecting any claim, right or interest of any kind that is included in or relates to any of the Acquired Assets; (ii) defending or compromising any Proceeding relating to any facilitating receipt of the Acquired Assets; or consideration to be received by Seller in and under every such Nonassignable Item, which consideration shall be held for the benefit of, and shall be delivered to, Buyer, and (iii) otherwise carrying out obtaining all applicable consents, novations and approvals listed on Schedule 1.8 not obtained prior to each such Closing Date. Seller shall reimburse Buyer for any and all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with seeking to obtain or facilitating any of the Transactions. The power of attorney referred to in the preceding sentence is and shall be coupled with an interest and shall be irrevocable, and shall survive the dissolution or insolvency of Sellers. Upon obtaining any such consent applicable to consent, novation or approval whether before or after such Acquired Asset after the Closing, such Acquired Asset shall promptly be transferred and assigned to Buyer in accordance with the terms of this AgreementClosing Date. (b) If prior to or following Closing, it is discovered that a Contract was not previously provided to Buyer and, accordingly, such Contract is not listed on Schedule 4.9(a) (any such Contract, a “Sellers’ Previously Omitted Contract”), Sellers shall, promptly following the discovery thereof, notify Buyer in writing of such Sellers’ Previously Omitted Contract. Buyer shall thereafter deliver written notice to Sellers, no later than ten (10) Business Days following notification of such Sellers’ Previously Omitted Contract from Sellers, designating such Sellers’ Previously Omitted Contract as “Assumed” or “Rejected.” If at any point following Closing, Buyer elects to add any additional Contract to Schedule 2.5(a) that was not (i) listed on Schedule 2.5(a) as of Closing and (ii) rejected pursuant to a bankruptcy court order (any such Contract, a “Buyer Previously Omitted Contract” and together with Seller’s Previously Omitted Contract, a “Previously Omitted Contract”), Buyer shall notify Seller in writing of its designation of such Buyer Previously Omitted Contract as “Assumed.” If Buyer designates a Seller Previously Omitted Contract as “Assumed,” Schedule 2.5(a) shall be amended to include such Previously Omitted Contract and Sellers shall serve a notice (the “Previously Omitted Contract Notice”) on the counterparties to such Previously Omitted Contract of the Cure Costs with respect to such Previously Omitted Contract and Sellers’ intention to assume and assign such Previously Omitted Contract in accordance with this Agreement. The Previously Omitted Contract Notice shall provide the counterparties to such Previously Omitted Contract with ten (10) days to object, in writing to Sellers and Buyer, to the Cure Costs or the assumption of its Contract; and if the counterparties, Sellers and Buyer are unable to reach a consensual resolution with respect to such objection, Sellers will file all pleadings required to seek a timely hearing before the Bankruptcy Court to determine the applicable Cure Costs (to the extent not previously determined) and obtain approval of the assumption of the Previously Omitted Contract and payment by Buyer or Sellers (as applicable) of such applicable Cure Cost. (c) If Buyer designates a Sellers’ Previously Omitted Contract as “Assumed,” Sellers shall amend Schedule 2.5(a) and, at Sellers’ expense (other than Cure Costs, which, for the avoidance of doubt, shall be paid by Buyer or Sellers, as applicable, as set forth in Section 2.5(c) hereof), take all other steps necessary to assume and assign the Sellers’ Previously Omitted Contract to Buyer and Buyer shall reimburse Seller for any costs or expenses incurred by Seller after Closing for such Buyer Previously Omitted Contract. If Buyer designates a Buyer Previously Omitted Contract as “Assumed,” Sellers shall amend Schedule 2.5(a) and, at Buyer’s expense, take all other steps necessary to assume and assign the Buyer Previously Omitted Contract to Buyer and Buyer shall reimburse Sellers for any costs or expenses incurred by Seller (other than Cure Costs, which, for the avoidance of doubt, shall be paid by Buyer or Sellers, as applicable, as set forth in Section 2.5(c) hereof) after Closing for such Buyer Previously Omitted Contract. (d) On the terms and conditions set forth in this Agreement, Buyer shall have the sole and exclusive right to select, identify and designate the Assumed Contracts. (e) Upon objection by the Contract counterparty to the proposed Cure Costs asserted by Sellers with regard to any Contract (such contract, a “Disputed Contract”) Sellers shall, at Buyer’s prior written direction, either settle the objection of such party or shall litigate such objection (at Buyer’s expense if after Closing). In no event shall Sellers settle a Cure Costs objection with regard to any Contract without the express written consent of Buyer (with an email consent being sufficient). Upon entry of an Order determining any Cure Costs regarding any Disputed Contract (the “Disputed Contract Order”), Buyer shall have the option to designate the Disputed Contract as an Excluded Asset, in which case, for the avoidance of doubt, Buyer shall not assume the Disputed Contract. Sellers agrees that it will promptly take such commercially reasonable actions as are necessary to obtain a final Order of the Bankruptcy Court providing for the assumption and assignment of Assumed Contracts.

Assignment of Certain Acquired Assets. (a) Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall not constitute an agreement to assign or transfer any Acquired Asset or any claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment or transfer thereof, without the consent of a third party (including any Governmental Entity), would after giving effect to the Sale Order and the Bankruptcy Code, constitute a breach or other contravention thereof or a violation of Law or Order by the Bankruptcy Court, or be ineffective with respect to any party to a Contract concerning such Acquired Asset, in each case that cannot be excused or rendered ineffective by operation of the Bankruptcy Code (or the Sale Order) or applicable non-bankruptcy Law; provided, that nothing in this Section 2.6 shall modify any representation or warranty of the Sellers under this Agreement. To If the extent that the parties hereto have been unable Closing occurs and any such consent with respect to obtain any consent that Buyer reasonably deems necessary be obtained for the transfer to Buyer of any of the Acquired Assets by the Closing: (a) such an Acquired Asset (a “Specified Asset”) shall has not be assigned or transferred to Buyer until such time as such consent is been obtained; and (b) , following the Closing the Sellers and Buyer shall cooperate will comply with one another to obtain such consent as promptly as practicable thereafter. Until Section 6.5 and, until such consent is obtained, Sellers shall use commercially reasonable efforts to preserve such Specified Asset and shall cooperatecooperate in a mutually agreeable arrangement (a) under which Buyer would, and shall use their reasonable efforts to cause their Representatives to cooperatein compliance with Law or an Order of the Bankruptcy Court, with Buyer in any lawful arrangement designed to provide Buyer with obtain the benefits of such Specified Assets at no cost to and assume the Buyer in excess of obligations and bear the cost Buyer would have incurred (without modification to the terms of any Contract) if the consent had been obtained, provided, that, the Sellers shall bear no cost or expense with respect to any Specified Assets and all economic burdens associated with the Specified Assets shall be borne by Buyer. If a required consent with respect to a Specified Asset is obtained after the Closing Datesuch Acquired Asset, the Specified Asset subject to such consent shall be deemed to have been assigned and transferred to Buyer as of the date such Consent is effective (and all references to the Closing Date shall be deemed to be the effective date of such consent with respect to such Specified Asset). Sellers hereby irrevocably nominate, constitute and appoint Xxxxx as the true and lawful attorney-in-fact of Seller (with full power of substitution) effective as of the Closing, and hereby authorize Buyer, in the name of and on behalf of the applicable Seller, to execute, deliver, acknowledge, certify, file and record any document, to institute and prosecute any Proceeding and to take any other action (on or at any time after the date of this Agreement) that Buyer may deem appropriate for the purpose of: (i) collecting, asserting, enforcing or perfecting any claim, right or interest benefit in accordance with this Agreement, including, for example (and without limitation of other similar arrangements being employed instead and in place thereof), by subcontracting, sublicensing or subleasing such Acquired Asset to Buyer or (b) under which the Sellers would enforce for the benefit (and at the expense) of Buyer any kind that is included in or relates to any and all of the Sellers’ rights against a third party associated with such Acquired Assets; Asset, claim, right or benefit, and the Sellers would promptly pay to Buyer when received all monies received by them under any such Acquired Asset, claim, right or benefit (ii) defending or compromising any Proceeding relating to any net of the Acquired Assets; Sellers’ expenses incurred in connection with any assignment or (iii) otherwise carrying out or facilitating any of the Transactions. The power of attorney referred to in the preceding sentence is and shall be coupled with an interest and shall be irrevocable, and shall survive the dissolution or insolvency of Sellersother performance contemplated by this Section 2.6). Upon obtaining any such consent applicable to such Acquired Asset after the Closing, such Acquired Asset shall promptly be transferred and assigned to Buyer in accordance with the terms of this Agreement. (b) If prior to or following Closing, it is discovered that a Contract was not previously provided to Buyer and, accordingly, such Contract is not listed on Schedule 4.9(a) (any such Contract, a “Sellers’ Previously Omitted Contract”), Sellers shall, promptly following the discovery thereof, notify Buyer in writing of such Sellers’ Previously Omitted Contract. Buyer shall thereafter deliver written notice to Sellers, no later than ten (10) Business Days following notification of such Sellers’ Previously Omitted Contract from Sellers, designating such Sellers’ Previously Omitted Contract as “Assumed” or “Rejected.” If at any point following Closing, Buyer elects to add any additional Contract to Schedule 2.5(a) that was not (i) listed on Schedule 2.5(a) as of Closing and (ii) rejected pursuant to a bankruptcy court order (any such Contract, a “Buyer Previously Omitted Contract” and together with Seller’s Previously Omitted Contract, a “Previously Omitted Contract”), Buyer shall notify Seller in writing of its designation of such Buyer Previously Omitted Contract as “Assumed.” If Buyer designates a Seller Previously Omitted Contract as “Assumed,” Schedule 2.5(a) shall be amended to include such Previously Omitted Contract and Sellers shall serve a notice (the “Previously Omitted Contract Notice”) on the counterparties to such Previously Omitted Contract of the Cure Costs with respect to such Previously Omitted Contract and Sellers’ intention to assume and assign such Previously Omitted Contract in accordance with this Agreement. The Previously Omitted Contract Notice shall provide the counterparties to such Previously Omitted Contract with ten (10) days to object, in writing to Sellers and Buyer, to the Cure Costs or the assumption of its Contract; and if the counterparties, Sellers and Buyer are unable to reach a consensual resolution with respect to such objection, Sellers will file all pleadings required to seek a timely hearing before the Bankruptcy Court to determine the applicable Cure Costs (to the extent not previously determined) and obtain approval of the assumption of the Previously Omitted Contract and payment by Buyer or Sellers (as applicable) of such applicable Cure Cost. (c) If Buyer designates a Sellers’ Previously Omitted Contract as “Assumed,” Sellers shall amend Schedule 2.5(a) and, at Sellers’ expense (other than Cure Costs, which, for the avoidance of doubt, shall be paid by Buyer or Sellers, as applicable, as set forth in Section 2.5(c) hereof), take all other steps necessary to assume and assign the Sellers’ Previously Omitted Contract to Buyer and Buyer shall reimburse Seller for any costs or expenses incurred by Seller after Closing for such Buyer Previously Omitted Contract. If Buyer designates a Buyer Previously Omitted Contract as “Assumed,” Sellers shall amend Schedule 2.5(a) and, at Buyer’s expense, take all other steps necessary to assume and assign the Buyer Previously Omitted Contract to Buyer and Buyer shall reimburse Sellers for any costs or expenses incurred by Seller (other than Cure Costs, which, for the avoidance of doubt, shall be paid by Buyer or Sellers, as applicable, as set forth in Section 2.5(c) hereof) after Closing for such Buyer Previously Omitted Contract. (d) On the terms and conditions set forth in this Agreement, Buyer shall have the sole and exclusive right to select, identify and designate the Assumed Contracts. (e) Upon objection by the Contract counterparty to the proposed Cure Costs asserted by Sellers with regard to any Contract (such contract, a “Disputed Contract”) Sellers shall, at Buyer’s prior written direction, either settle the objection of such party or shall litigate such objection (at Buyer’s expense if after Closing). In no event shall Sellers settle a Cure Costs objection with regard to any Contract without the express written consent of Buyer (with an email consent being sufficient). Upon entry of an Order determining any Cure Costs regarding any Disputed Contract (the “Disputed Contract Order”), Buyer shall have the option to designate the Disputed Contract as an Excluded Asset, in which case, for the avoidance of doubt, Buyer shall not assume the Disputed Contract. Sellers agrees that it will promptly take such commercially reasonable actions as are necessary to obtain a final Order of the Bankruptcy Court providing for the assumption and assignment of Assumed Contracts.