Common use of Assumption and Assignment of Assumed Contracts Clause in Contracts

Assumption and Assignment of Assumed Contracts. On the Closing Date, Seller shall assign the Assumed Contracts to Buyer. Notwithstanding anything herein to the contrary, if (a) the consent of any Person is required to assign to Buyer any Assets or any claim, right or benefit arising thereunder or resulting therefrom and (b) such consent has not been obtained on or prior to the Closing Date (each an “Assignment Excluded Asset”), (i) such Assignment Excluded Asset shall be deemed not to have been assigned to Buyer and Buyer shall be deemed not to have assumed any Liabilities related thereto, (ii) such failure shall not constitute a breach of this Agreement and (iii) from and after the Closing, with respect to each Assignment Excluded Asset, Seller shall cooperate in good faith with Buyer (which shall take the lead in such process) and use its reasonable best efforts to arrange for the transfer of such Assignment Excluded Asset to Buyer within thirty (30) days of the Closing Date, unless and until it becomes evident that such assignment is not reasonably practicable without undue cost or delay. Schedule 2.5 hereto sets forth all Assignment Excluded Assets. To facilitate the transfer of the Assignment Excluded Assets, Seller and Buyer hereby agree to provide each other certain services following the Closing pursuant to the terms of an Intercompany Services Agreement, in substantially the form attached hereto as Exhibit E (the “Services Agreement”). In the event Seller shall receive payment for accounts receivable, which constitute Assets, following the Closing, it shall promptly remit such payments to Buyer. In the event Buyer shall receive payment for accounts receivable, which constitute Excluded Assets, following the Closing, it shall promptly remit such payments to Seller.

Assumption and Assignment of Assumed Contracts. (a) When delivered in accordance with Section 6.11, Schedule 2.5(a) will set forth a list of the executory Contracts to which one or more Sellers is a party, together with estimated Cure Amounts for each Assumed Contract (the “Available Contracts”) which may be updated to add Contracts entered into in the Ordinary Course of Business or otherwise not prohibited by this Agreement following the date hereof. By the date that is two (2) Business Days prior to the Closing (such date, the “Determination Date”), Buyer shall designate in writing (each such writing, a “Designation Notice”) which Available Contracts from Schedule 2.5(a) that Buyer wishes for Sellers to assume and assign to Buyer at the Closing (the “Assumed Contracts”). Buyer shall have the right to amend a Designation Notice in any respect at any time prior to the Determination Date. All Contracts of the Sellers that are listed on Schedule 2.5(a) and which Buyer does not designate in writing pursuant to a Designation Notice for assumption shall not constitute Assumed Contracts or Purchased Assets and shall automatically be deemed Excluded Assets; provided, however, that if an Available Contract is subject to a Cure Amount dispute or other dispute as to the assumption or assignment of such Available Contract that has not been resolved to the mutual satisfaction of Buyer and the Sellers prior to the Determination Date, then the Determination Date shall be extended (but only with respect to such Available Contract) to no later than the earlier of (A) the date on which such dispute has been resolved to the mutual satisfaction of Buyer and the Sellers, (B) the date on which such Available Contract is deemed rejected by operation of section 365 of the Bankruptcy Code and (C) the date upon which such dispute is finally determined by the Bankruptcy Court (the “Extended Contract Period”). If a Designation Notice with respect to such Available Contract is not delivered by Buyer in writing by the date which is three (3) Business Days following the expiration of such Extended Contract Period, such Available Contract shall be automatically deemed an Excluded Asset. For the avoidance of doubt, except as set forth in Section 2.3, Buyer shall not assume or otherwise have any Liability with respect to any Excluded Asset. At Buyer’s reasonable request, the Sellers shall make reasonably available to Buyer the appropriate employees of the Sellers necessary to discuss the outstanding Available Contracts. (b) The Sellers shall use commercially reasonable efforts to take all actions required by the Bankruptcy Court to obtain an Order (which shall be the Sale Order, unless as otherwise determined by Buyer) containing a finding that the proposed assumption and assignment of the Assumed Contracts to Buyer satisfies all applicable requirements of section 365 of the Bankruptcy Code. (c) At the Closing, the Sellers shall, pursuant to the Sale Order and the Bill of Sale and Assignment and Assumption Agreement, assume and assign, or cause to be assigned, to Buyer, each of the Assumed Contracts that is capable of being assumed and assigned as of such date. (d) Buyer will cooperate with the Sellers in communicating with third parties to Available Contracts as may be reasonably necessary to assist the Sellers in establishing that Buyer has satisfied the requirement of adequate assurance of future performance contained in sections 365(b)(1)(C) and 365(f) of the Bankruptcy Code with respect to the applicable Available Contracts. (e) In the event Sellers are unable to assign any such Assumed Contract to Buyer without the consent of another Person, then the Parties shall use their commercially reasonable efforts to obtain, and to cooperate in obtaining, all required consents necessary to assume and assign such Assumed Contracts to Buyer; provided that Sellers shall not be required to expend any money. (f) Within three (3) Business Days after entry of the Bidding Procedures Order, or as soon as reasonably practicable thereafter, the Sellers shall file a list of the Available Contracts (the “Assumption Notice”) with the Bankruptcy Court and shall serve such Assumption Notice via first class mail on each counterparty to an Available Contract listed thereon. The Assumption Notice shall identify all Available Contracts and set forth a good faith estimate of the amount of the Cure Amounts applicable to each such Contract. (g) Not later than one (1) Business Day following the Determination Date, Sellers shall file with the Bankruptcy Court an amended and restated Assumption Notice, which notice shall set forth only the Assumed Contracts (and exclude all other Available Contracts). (h) On the Closing Date, Seller shall assign the Assumed Contracts to Buyer. Notwithstanding anything herein to the contrary, if (a) the consent of any Person is required to assign to Buyer any Assets or any claim, right or benefit arising thereunder or resulting therefrom and (b) such consent has not been obtained on or prior to the Closing Date (each an “Assignment Excluded Asset”), (i) such Assignment Excluded Asset shall be deemed not to have been assigned to Buyer and Buyer shall be deemed not to have assumed any Liabilities related thereto, (ii) such failure shall not constitute a breach of this Agreement and (iii) from and after the Closing, with respect to each Assignment Excluded Asset, Seller shall cooperate in good faith with Buyer (which shall take the lead in such process) and use its reasonable best efforts to arrange for the transfer of such Assignment Excluded Asset to Buyer within thirty (30) days Cure Amounts not disputed as of the Closing Date, unless the Buyer shall pay all Cure Amounts to the applicable counterparty and until it becomes evident Sellers shall have no Liability therefor. With respect to Cure Amounts that such assignment is not reasonably practicable without undue cost or delay. Schedule 2.5 hereto sets forth all Assignment Excluded Assets. To facilitate the transfer are disputed as of the Assignment Excluded AssetsClosing Date, Seller the Parties shall cooperate and Buyer hereby agree to provide each other certain services following diligently pursue resolution of such disputes. Upon the Closing pursuant to the terms resolution of an Intercompany Services Agreement, in substantially the form attached hereto as Exhibit E (the “Services Agreement”). In the event Seller shall receive payment for accounts receivable, which constitute Assets, any disputed Cure Amount following the Closing, it shall promptly remit such payments to Buyer. In the event Buyer shall receive pay such Cure Amount promptly, and in no event later than two (2) Business Days following such resolution. (i) Upon payment for accounts receivableby Buyer of all Cure Amounts, which constitute Excluded Assetsall defaults under the Assumed Contracts (monetary or otherwise) shall be deemed cured. (j) Notwithstanding anything in this Agreement to the contrary, following from and after the date hereof through the Closing, it shall promptly remit such payments the Sellers will not reject or take any action (or fail to Sellertake any action that would result in rejection by operation of Law) to reject, repudiate or disclaim any of their Contracts without the prior written consent of Xxxxx.

Assumption and Assignment of Assumed Contracts. On (a) Schedule 2.5(a) sets forth a list of the executory Contracts to which one or more Sellers is a party, together with estimated Cure Amounts for each Assumed Contract (the “Available Contracts”), which Schedule 2.5(a) may be updated to add Contracts entered into in the Ordinary Course of Business or otherwise not prohibited by this Agreement following the date hereof. By the date that is four (4) Business Days prior to the Closing Date(such date, Seller the “Determination Deadline”), Buyer shall designate in writing (each such writing, a “Designation Notice”) which Available Contracts from Schedule 2.5 (a) that Buyer wishes for Sellers to assume and assign to Buyer at the Closing (the “Assumed Contracts”). Buyer shall have the right to amend a Designation Notice in any respect at any time prior to the Determination Deadline. All Contracts of the Sellers that are listed on Schedule 2.5(a) and which Buyer does not designate in writing pursuant to a Designation Notice for assumption shall not constitute Assumed Contracts or Purchased Assets and shall automatically be deemed Excluded Assets; provided, however, that if an Available Contract is subject to a Cure Amount dispute or other dispute as to the assumption or assignment of such Available Contract that has not been resolved to the mutual satisfaction of Buyer and the Sellers prior to the Determination Deadline, then the Determination Deadline shall be extended (but only with respect to such Available Contract) to no later than the earlier of (A) the date on which such dispute has been resolved to the mutual satisfaction of Buyer and the Sellers, (B) the date on which such Available Contract is deemed rejected by operation of section 365 of the Bankruptcy Code and (C) the date upon which such dispute is finally determined by the Bankruptcy Court (the “Extended Contract Period”). If a Designation Notice with respect to such Available Contract is not delivered by Buyer in writing by the date which is three (3) Business Days following the expiration of such Extended Contract Period, such Available Contract shall be automatically deemed an Excluded Asset. For the avoidance of doubt, except as set forth in Section 2.3, Buyer shall not assume or otherwise have any Liability with respect to any Excluded Asset. At Buyer’s reasonable request, the Sellers shall make reasonably available to Buyer the appropriate employees of the Sellers necessary to discuss the outstanding Available Contracts. (b) The Sellers shall use commercially reasonable efforts to take all actions required by the Bankruptcy Court to obtain an Order (which shall be the Sale Order, unless as otherwise determined by Buyer) containing a finding that the proposed assumption and assignment of the Assumed Contracts to Buyer. Notwithstanding anything herein to Buyer satisfies all applicable requirements of section 365 of the contrary, if Bankruptcy Code. (ac) the consent of any Person is required to assign to Buyer any Assets or any claim, right or benefit arising thereunder or resulting therefrom and (b) such consent has not been obtained on or prior to the Closing Date (each an “Assignment Excluded Asset”), (i) such Assignment Excluded Asset shall be deemed not to have been assigned to Buyer and Buyer shall be deemed not to have assumed any Liabilities related thereto, (ii) such failure shall not constitute a breach of this Agreement and (iii) from and after At the Closing, the Sellers shall, pursuant to the Sale Order and the Bill of Sale and Assignment and Assumption Agreement, assume and assign, or cause to be assigned, to Buyer, each of the Assumed Contracts that is capable of being assumed and assigned as of such date. (d) Buyer will cooperate with the Sellers in communicating with third parties to Available Contracts as may be reasonably necessary to assist the Sellers in establishing that Buyer has satisfied the requirement of adequate assurance of future performance contained in sections 365(b)(1)(C) and 365(f) of the Bankruptcy Code with respect to each Assignment Excluded Asset, Seller shall cooperate in good faith with Buyer (which shall take the lead in such process) and use its reasonable best efforts to arrange for the transfer of such Assignment Excluded Asset to Buyer within thirty (30) days of the Closing Date, unless and until it becomes evident that such assignment is not reasonably practicable without undue cost or delay. Schedule 2.5 hereto sets forth all Assignment Excluded Assets. To facilitate the transfer of the Assignment Excluded Assets, Seller and Buyer hereby agree to provide each other certain services following the Closing pursuant to the terms of an Intercompany Services Agreement, in substantially the form attached hereto as Exhibit E (the “Services Agreement”). In the event Seller shall receive payment for accounts receivable, which constitute Assets, following the Closing, it shall promptly remit such payments to Buyer. In the event Buyer shall receive payment for accounts receivable, which constitute Excluded Assets, following the Closing, it shall promptly remit such payments to Sellerapplicable Available Contracts.