Assumption and Assignment of Contracts. (a) Promptly, but in any event within 20 days from the Effective Date, Sellers shall deliver to Purchaser (i) a true and complete list of all material Contracts used in the Business to which a Seller is a party, and within two (other than Sellers’ insurance policies, confidentiality agreements, employment agreements, offer letters, severance agreements and consulting agreements), and within five Business Days of Purchaser’s request, Sellers shall make available a true and copy of any such Contract, and (ii) Schedule 2.7(a), which schedule shall contain, with respect to each Contract, Sellers’ good-faith best estimate, as certified by the Chief Executive Officer or Chief Financial Officer of Sellers, of the amount of Cure Costs with respect to each such Contract; provided, however, that, from and after the date of delivery of Schedule 2.7(a) hereunder until 30 days from the Effective Date, Sellers may provide updates or supplements to Schedule 2.7(a) to include revised Cure Costs with respect to any Contract set forth therein, which updates shall amend Schedule 2.7(a) for all purposes hereof. (b) Notwithstanding anything in this Agreement to the contrary, Purchaser may, from time to time and in its sole and absolute discretion, amend or revise Schedule 2.7(a) in order to add or eliminate any Contract to or from such Schedule up to one Business Day prior to the Qualified Bid Deadline. Automatically upon the addition of any Contract to Schedule 2.7(a) by Purchaser in accordance with the previous sentence, but subject to Purchaser’s right to remove any such Contract pursuant to this Section 2.7(b), such Contract shall be a Purchased Contract for all purposes of this Agreement. Automatically upon the deletion of any Contract from Schedule 2.7(a) by Purchaser in accordance with the first sentence of this Section 2.7(b), such Contract shall be an Excluded Asset for all purposes of this Agreement, and no Liabilities arising thereunder or relating thereto shall be assumed by Purchaser or be the obligation, liability or responsibility of Purchaser. If any Contract is added to the list of Purchased Contracts in accordance with this Section 2.7(b), then Sellers shall take such steps as are reasonably necessary (other than payment of any Cure Costs) to cause such Contract to be assumed and assigned to Purchaser as promptly as possible at or following the Closing. (c) The Sale Order shall provide for the assumption by Sellers, and the assignment to the extent legally capable of being assigned by Sellers to Purchaser, of the Purchased Contracts pursuant to Section 365 of the Bankruptcy Code on the terms and conditions set forth in the remainder of this Section 2.7. At Purchaser’s request, and at Purchaser’s sole cost and expense, Sellers shall reasonably cooperate from the Effective Date forward with Purchaser as reasonably requested by Purchaser (i) to allow Purchaser to enter into an amendment of any Purchased Contract upon assumption of such Purchased Contract by Purchaser (and Sellers shall reasonably cooperate with Purchaser to the extent reasonably requested with Purchaser in negotiations with the counterparties thereof), or (ii) to otherwise amend any Purchased Contract to the extent such amendments would not adversely affect any Seller; provided that (A) in no event shall any such amendments be effective prior to the Closing and (B) Sellers shall not be required to enter into any such amendment if such amendment would result in an assumption by Seller of such Purchased Contract unless such Purchased Contract will be assigned to Purchaser at the time of such assumption. (d) Within four Business Days following the Bid Deadline, the applicable Seller shall file with the Bankruptcy Court and serve notice (an “Assumption Notice”) by first class mail on all non-debtor counterparties to any Contract included on Schedule 2.7(a) as of one Business Day prior to the Qualified Bid Deadline, and provide a copy of such Assumption Notice to Purchaser; provided that the assumption of any Contract on Schedule 2.7(a) will only occur at the Closing. At the Closing, Sellers shall assume and assign to Purchaser the Purchased Contracts, in each case, pursuant to Section 365 of the Bankruptcy Code and the Sale Order, subject to provision by Purchaser of adequate assurance as may be required under Section 365 of the Bankruptcy Code. The Cure Costs in respect of all of the Purchased Contracts shall be borne by Purchaser and shall not be the obligation, liability or responsibility of Sellers. Prior to the Sale Hearing, Sellers shall commence appropriate proceedings before the Bankruptcy Court and otherwise take all reasonably necessary actions in order to determine Cure Costs with respect to any Purchased Contract. (e) As part of the Sale Motion (or as necessary in one or more separate motions), Sellers shall request that, by virtue of any Seller providing notice (in accordance with the assumption and assignment procedures set forth in the Bidding Procedures Order) of its intent to assume and assign any Purchased Contract, the Bankruptcy Court deem any non-debtor party to such Purchased Contract that does not file an objection with the Bankruptcy Court during such notice period to have given any Necessary Consent to the assumption of the Purchased Contract by the relevant Seller and assignment to Purchaser. (f) Sellers shall use their respective commercially reasonable efforts to obtain one or more orders of the Bankruptcy Court, which order(s) shall be in form and substance reasonably acceptable to Purchaser, and shall reflect the terms and conditions set forth herein, to assume and assign the Purchased Contracts to Purchaser on the terms set forth in this Section 2.7. In the event Sellers are unable to obtain such an order for assumption and assignment of any such Purchased Contract to Purchaser, then the Parties shall use commercially reasonable efforts until the Designation Deadline to obtain, and to cooperate in obtaining, all Necessary Consents from Governmental Bodies and third parties necessary to assume and assign such Purchased Contracts to Purchaser, including, in the case of Purchaser, paying any applicable Cure Costs. (g) Subject to Section 2.8, to the extent that any Necessary Consent that is required to assume and assign to Purchaser any Purchased Contract is not obtained by the Closing Date, each Seller shall, with respect to each such Purchased Contract, from and after the Closing and until the earliest to occur of (i) the date on which such applicable Necessary Consent is obtained (which Necessary Consents the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly; provided, however, that none of the Parties or any of their respective Affiliates shall be required to pay any consideration therefor other than filing, recordation or similar fees, which shall be borne by Purchaser), and (ii) the date on which Purchaser delivers a written notice of exclusion of such Purchased Contract pursuant to this Section 2.7 or the Purchased Contract is deemed rejected under Section 365 of the Bankruptcy Code, use reasonable best efforts during the term of such Purchased Contract to (A) provide to Purchaser the benefits under such Purchased Contract, (B) cooperate in any reasonable and lawful arrangement, including holding such Contract in trust for Purchaser pending receipt of the Necessary Consent, designed to provide such benefits to Purchaser and (C) use its reasonable best efforts to enforce for the account of Purchaser any rights of such Seller under such Purchased Contract, including the right to elect to terminate such Purchased Contract in accordance with the terms thereof upon the written direction of Purchaser. Purchaser shall reasonably cooperate with Sellers in order to enable Sellers to provide to Purchaser the benefits contemplated by this Section 2.7(g). (h) Notwithstanding the foregoing, a Contract shall not be a Purchased Contract hereunder and shall not be assigned to, or assumed by, Purchaser to the extent that such Contract (i) is designated for exclusion by a Seller in accordance with the terms hereof, deemed rejected under Section 365 of the Bankruptcy Code, or terminated by the other party thereto or terminates or expires in accordance with its terms on or prior to the Designation Deadline and is not continued or otherwise extended prior to or upon assumption and assignment, or (ii) subject to Section 2.8 below, requires a Necessary Consent of any Governmental Body or other third party (other than, and in addition to, that of the Bankruptcy Court) in order to permit the assumption and assignment by Seller to Purchaser of such Contract pursuant to Section 365 of the Bankruptcy Code, and no such Necessary Consent has been obtained prior to the Designation Deadline.
Appears in 1 contract
Samples: Asset Purchase Agreement
Assumption and Assignment of Contracts. (a) Promptly, but in any event within 20 days from the Effective Date, Sellers shall deliver to Purchaser (iSchedule 2.6(a) sets forth a true and complete list of all material Contracts used in the Business and Leases to which a Seller is a party, party that Buyer desires to assume (the “Potential Assumed Contracts and within two (other than Sellers’ insurance policies, confidentiality agreements, employment agreements, offer letters, severance agreements and consulting agreementsLeases”), together with estimated Cure Amounts for each such Contract or Lease. For any Contracts or Leases to which Seller is a party and within five Business Days of Purchaser’s request, Sellers shall make available a true and copy of any such Contract, and (ii) that are not identified on Schedule 2.7(a2.6(a), which schedule such Contracts or Leases shall contain, with respect be deemed to each Contract, Sellers’ good-faith best estimate, as certified by the Chief Executive Officer or Chief Financial Officer of Sellers, of the amount of Cure Costs with respect to each such Contract; provided, however, that, from and after the date of delivery of Schedule 2.7(a) hereunder until 30 days from the Effective Date, Sellers may provide updates or supplements to Schedule 2.7(a) to include revised Cure Costs with respect to any Contract set forth therein, which updates shall amend Schedule 2.7(a) for all purposes hereofbe an Excluded Asset.
(b) Notwithstanding anything in this Agreement From the date hereof until two (2) Business Days prior to the contrarySale Hearing, Purchaser Buyer may, from time to time and in its sole and absolute discretion, amend or revise designate any of the Potential Assumed Contracts and Leases as an Excluded Asset by removing them from Schedule 2.7(a2.6(a). Any Potential Assumed Contracts and Leases not removed from Schedule 2.6(a) in order to add or eliminate any Contract to or from such Schedule up to one no later than two (2) Business Day Days prior to the Qualified Bid Deadline. Automatically upon the addition of any Contract to Schedule 2.7(a) by Purchaser in accordance with the previous sentence, but subject to Purchaser’s right to remove any such Contract pursuant to this Section 2.7(b), such Contract shall be a Purchased Contract for all purposes of this Agreement. Automatically upon the deletion of any Contract from Schedule 2.7(a) by Purchaser in accordance with the first sentence of this Section 2.7(b), such Contract shall be an Excluded Asset for all purposes of this Agreement, and no Liabilities arising thereunder or relating thereto Sale Hearing shall be assumed by Purchaser or be the obligation, liability or responsibility of Purchaser. If any Contract is added to the list of Purchased Contracts in accordance with this Section 2.7(b), then Sellers shall take such steps as are reasonably necessary (other than payment of any Cure Costs) to cause such Contract to be assumed and assigned to Purchaser Buyer, effective on and as promptly of the Closing as possible at provided for in the Sale Order or following as otherwise provided for by an Order of the ClosingBankruptcy Court (such Contracts and Leases, the “Assumed Contracts”).
(c) The Sale Order shall provide for In connection with the assumption by Sellersand assignment to Buyer of any Assumed Contracts pursuant to this Section 2.6, the amounts, if any, necessary to cure all defaults, if any, and to pay all actual pecuniary losses, if any, that have resulted from such defaults under the Assumed Contracts (collectively, such amounts, the “Cure Amounts”), in each case as of the Petition Date and to the extent required by Section 365(b)(1)(A) and (B) of the Bankruptcy Code, shall be paid by Buyer at the Closing, and the assignment Cure Amounts paid by Buyer shall not reduce, directly or indirectly, any consideration payable to the extent legally capable Seller hereunder. Buyer shall provide sufficient adequate assurance of being assigned by Sellers to Purchaser, future performance as of the Purchased Contracts pursuant Sale Hearing necessary to Section 365 satisfy the conditions contained in Sections 365(b)(1)(C) and 365(f) of the Bankruptcy Code on the terms and conditions set forth in the remainder of this Section 2.7. At Purchaser’s request, and at Purchaser’s sole cost and expense, Sellers shall reasonably cooperate from the Effective Date forward with Purchaser as reasonably requested by Purchaser (i) respect to allow Purchaser to enter into an amendment of any Purchased Contract upon assumption of such Purchased Contract by Purchaser (and Sellers shall reasonably cooperate with Purchaser to the extent reasonably requested with Purchaser in negotiations with the counterparties thereof), or (ii) to otherwise amend any Purchased Contract to the extent such amendments would not adversely affect any Seller; provided that (A) in no event shall any such amendments be effective prior to the Closing and (B) Sellers shall not be required to enter into any such amendment if such amendment would result in an assumption by Seller of such Purchased Contract unless such Purchased Contract will be assigned to Purchaser at the time of such assumptionAssumed Contracts.
(d) Within four Business Days following the Bid Deadline, the applicable Seller shall file with the Bankruptcy Court and serve notice (an “Assumption Notice”) by first class mail on all non-debtor counterparties to any Contract included on Schedule 2.7(a) as of one Business Day prior to the Qualified Bid Deadline, and provide a copy of such Assumption Notice to Purchaser; provided that the assumption of any Contract on Schedule 2.7(a) will only occur at the Closing. At the Closing, Sellers shall assume and assign to Purchaser the Purchased Contracts, in each case, pursuant to Section 365 of the Bankruptcy Code and the Sale Order, subject to provision by Purchaser of adequate assurance as may be required under Section 365 of the Bankruptcy Code. The Cure Costs in respect of all of the Purchased Contracts shall be borne by Purchaser and shall not be the obligation, liability or responsibility of Sellers. Prior to the Sale Hearing, Sellers shall commence appropriate proceedings before the Bankruptcy Court and otherwise take all reasonably necessary actions in order to determine Cure Costs with respect to any Purchased Contract.
(e) As part of the Sale Motion (or as necessary in one or more separate motions), Sellers shall request that, by virtue of any Seller providing notice (in accordance with the assumption and assignment procedures set forth in the Bidding Procedures Order) of its intent to assume and assign any Purchased Contract, the Bankruptcy Court deem any non-debtor party to such Purchased Contract that does not file an objection with the Bankruptcy Court during such notice period to have given any Necessary Consent to the assumption of the Purchased Contract by the relevant Seller and assignment to Purchaser.
(f) Sellers shall use their respective commercially reasonable efforts to obtain one or more orders an Order of the Bankruptcy Court, which order(s) shall be in form and substance reasonably acceptable Court to Purchaser, and shall reflect the terms and conditions set forth herein, to assume and assign the Purchased Assumed Contracts to Purchaser Buyer on the terms set forth in this Section 2.72.6. In the event Sellers are Seller is unable to obtain such an order for assumption and assignment of assign any such Purchased Assumed Contract to PurchaserBuyer pursuant to an Order of the Bankruptcy Court, then the Parties shall use their commercially reasonable efforts until the Designation Deadline to obtain, and to cooperate in obtaining, all Necessary Consents from Governmental Bodies Entities and third parties necessary to assume and assign such Purchased Assumed Contracts to PurchaserBuyer, including, in the case of PurchaserBuyer, paying any applicable Cure Costs.
(g) Subject to Section 2.8Amounts, to the extent that any Necessary Consent that is required to assume and assign to Purchaser any Purchased Contract is not obtained by the Closing Date, each Seller shall, with respect to each such Purchased Contract, from and after the Closing and until the earliest to occur of (i) the date on which such applicable Necessary Consent is obtained (which Necessary Consents the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly; provided, however, that none of the Parties or any of their respective Affiliates Seller shall be required under no obligation to pay any consideration therefor other than filingamounts to any Governmental Entity or third party for any Consents, recordation and any amounts paid to any Governmental Entity or similar fees, which third party for any such Consents shall be borne paid by Purchaser), and (ii) the date on which Purchaser delivers a written notice of exclusion of such Purchased Contract pursuant to this Section 2.7 or the Purchased Contract is deemed rejected under Section 365 of the Bankruptcy Code, use reasonable best efforts during the term of such Purchased Contract to (A) provide to Purchaser the benefits under such Purchased Contract, (B) cooperate in any reasonable and lawful arrangement, including holding such Contract in trust for Purchaser pending receipt of the Necessary Consent, designed to provide such benefits to Purchaser and (C) use its reasonable best efforts to enforce for the account of Purchaser any rights of such Seller under such Purchased Contract, including the right to elect to terminate such Purchased Contract in accordance with the terms thereof upon the written direction of Purchaser. Purchaser shall reasonably cooperate with Sellers in order to enable Sellers to provide to Purchaser the benefits contemplated by this Section 2.7(g)Buyer.
(he) Notwithstanding the foregoing, but subject to Section 5.1, a Contract shall not be a Purchased an Assumed Contract hereunder and shall not be assigned to, or assumed by, Purchaser by Buyer to the extent that such Contract (i) is designated for exclusion rejected by a Seller in accordance with the terms hereof, deemed rejected under Section 365 of the Bankruptcy Code, or terminated by the other party thereto or terminates or expires in accordance with by its terms terms, on or prior to the Designation Deadline Closing and is not continued or otherwise extended prior to or upon assumption and assignmentextended, or (ii) subject to Section 2.8 below, requires a Necessary Consent of any Governmental Body Entity or other third party (other than, and in addition to, that of is not provided for by the Bankruptcy Court) Sale Order in order to permit the assumption and assignment by Seller sale or transfer to Purchaser Buyer of Seller’s rights under such Contract pursuant to Section 365 of the Bankruptcy CodeContract, and no such Necessary Consent has been obtained prior to the Designation DeadlineClosing, or (iii) relates solely to Excluded Assets. In addition, a Permit shall not be assigned to, or assumed by, Buyer to the extent that such Permit requires a Consent of any Governmental Entity or other third party that is not provided for by the Sale Order in order to permit the sale or transfer to Buyer of Seller’s rights under such Permit, and no such Consent has been obtained prior to the Closing.
(f) Seller shall not terminate, amend, supplement, modify, waive any rights under, or create any adverse interest with respect to any of the Potential Assumed Contracts or Leases, or take any affirmative action not required thereby, without the prior written consent of Buyer (not to be unreasonably withheld or delayed) unless Buyer has provided written notice to Seller removing such Potential Assumed Contract or Lease from Schedule 2.6(a).
Appears in 1 contract
Samples: Asset Purchase Agreement
Assumption and Assignment of Contracts. (a) Promptly, but in any event within 20 days from the Effective Date, Sellers shall deliver to Purchaser (iSchedule 2.6(a) is a true and complete list of all material Contracts used in of the Business Sellers that are capable of assumption and assignment pursuant to Section 365 of the Bankruptcy Code (the “Assignable Contracts”). At the Sale Hearing (notice of which a Seller is a party, shall be properly and within two (other than timely served on all non-Sellers counterparties to Assignable Contracts by the Sellers’ insurance policies, confidentiality agreements, employment agreements, offer letters, severance agreements and consulting agreements), and within five Business Days of Purchaser’s request, the Sellers shall make available a true seek authority to assume and copy of any such Contractassign to the Buyer those Assignable Contracts that are, and or that become (iipursuant to the procedures set forth in Section 2.6(f) Schedule 2.7(abelow), which schedule shall contain, with respect to each Contract, Sellers’ good-faith best estimate, as certified by the Chief Executive Officer or Chief Financial Officer of Sellers, of the amount of Cure Costs with respect to each such Contract; provided, however, that, from and after the date of delivery of Schedule 2.7(a) hereunder until 30 days from the Effective Date, Sellers may provide updates or supplements to Schedule 2.7(a) to include revised Cure Costs with respect to any Contract set forth therein, which updates shall amend Schedule 2.7(a) for all purposes hereofAssumed Contracts.
(b) Subject to Section 2.6(g), the Assumed Contracts shall be assumed by the Sellers and assigned to the Buyer at the Closing pursuant to an order of the Bankruptcy Court pursuant to Section 365 of the Bankruptcy Code.
(c) Schedule 2.6(a) sets forth those Contracts that the Buyer has determined shall not be assigned and assumed to it, which shall be designated as “Excluded Contracts” (the “Excluded Contracts”). Notwithstanding anything in this Agreement to the contrary, Purchaser may, from time to time and the Buyer shall not be liable for any Liabilities in its sole and absolute discretion, amend or revise Schedule 2.7(a) in order to add or eliminate any Contract to or from such Schedule up to one Business Day prior to the Qualified Bid Deadline. Automatically upon the addition of any Contract to Schedule 2.7(a) by Purchaser in accordance with the previous sentence, but subject to Purchaser’s right to remove any such Contract pursuant to this Section 2.7(b), such Contract shall be a Purchased Contract for all purposes of this Agreement. Automatically upon the deletion respect of any Contract from Schedule 2.7(a) by Purchaser and after the time of its designation as an Excluded Contract, and any Liabilities arising under, relating to, or in accordance connection with the first sentence of this Section 2.7(b), such Excluded Contract shall be an deemed Excluded Asset Liabilities for all purposes of under this Agreement.
(d) At the Closing (subject to Section 2.6(g)), Buyer shall pay any Cure Amounts due in connection with the assumption and assignment of the Assumed Contracts as set forth in the Sale Order for which all necessary Consents required by the Bankruptcy Code to transfer have been obtained, and no the Buyer will assume and agree to perform and discharge the Assumed Liabilities arising thereunder under the Assumed Contracts or, such other additional or relating thereto shall be assumed fewer Assumed Contracts as otherwise agreed by Purchaser or be the obligation, liability or responsibility Parties at the time of Purchaser. If any Contract is added to the list of Purchased Contracts in accordance with this Section 2.7(b), then Sellers shall take such steps as are reasonably necessary (other than payment of any Cure Costs) to cause such Contract to be assumed and assigned to Purchaser as promptly as possible at or following the Closing.
(c) The Sale Order shall provide for the assumption by Sellers, and the assignment to the extent legally capable of being assigned by Sellers to Purchaser, of the Purchased Contracts pursuant to Section 365 of the Bankruptcy Code on the terms and conditions set forth in the remainder of this Section 2.7. At Purchaser’s request, and at Purchaser’s sole cost and expense, Sellers shall reasonably cooperate from the Effective Date forward with Purchaser as reasonably requested by Purchaser (i) to allow Purchaser to enter into an amendment of any Purchased Contract upon assumption of such Purchased Contract by Purchaser (and Sellers shall reasonably cooperate with Purchaser to the extent reasonably requested with Purchaser in negotiations with the counterparties thereof), or (ii) to otherwise amend any Purchased Contract to the extent such amendments would not adversely affect any Seller; provided that (A) in no event shall any such amendments be effective prior to the Closing and (B) Sellers shall not be required to enter into any such amendment if such amendment would result in an assumption by Seller of such Purchased Contract unless such Purchased Contract will be assigned to Purchaser at the time of such assumption.
(d) Within four Business Days following the Bid Deadline, the applicable Seller shall file with the Bankruptcy Court and serve notice (an “Assumption Notice”) by first class mail on all non-debtor counterparties to any Contract included on Schedule 2.7(a) as of one Business Day prior to the Qualified Bid Deadline, and provide a copy of such Assumption Notice to Purchaser; provided that the assumption of any Contract on Schedule 2.7(a) will only occur at the Closing. At the Closing, Sellers shall assume and assign to Purchaser the Purchased Contracts, in each case, pursuant to Section 365 of the Bankruptcy Code and the Sale Order, subject to provision by Purchaser of adequate assurance as may be required under Section 365 of the Bankruptcy Code. The Cure Costs in respect of all of the Purchased Contracts shall be borne by Purchaser and shall not be the obligation, liability or responsibility of Sellers. Prior to the Sale Hearing, Sellers shall commence appropriate proceedings before the Bankruptcy Court and otherwise take all reasonably necessary actions in order to determine Cure Costs with respect to any Purchased Contract.
(e) As part of the Sale Motion (or as necessary in one or more separate motions), Sellers shall request that, by virtue of any Seller providing notice (in accordance with the assumption and assignment procedures set forth in the Bidding Procedures Order) of its intent to assume and assign any Purchased Contract, the Bankruptcy Court deem any non-debtor party to such Purchased Contract that does not file an objection with the Bankruptcy Court during such notice period to have given any Necessary Consent to the assumption of the Purchased Contract by the relevant Seller and assignment to Purchaser.
(f) Sellers shall use their respective commercially reasonable efforts to obtain one or more orders of the Bankruptcy Court, which order(s) shall be in form and substance reasonably acceptable to Purchaser, and shall reflect the terms and conditions set forth herein, to assume and assign the Purchased Contracts to Purchaser on the terms set forth in this Section 2.7. In the event Sellers are unable to obtain such an order for assumption and assignment of any such Purchased Contract to Purchaser, then the Parties shall use commercially reasonable efforts until the Designation Deadline to obtain, and to cooperate in obtaining, all Necessary Consents from Governmental Bodies and third parties necessary to assume and assign such Purchased Contracts to Purchaser, including, in the case of Purchaser, paying any applicable Cure Costs.
(g) Subject to Section 2.8, to the extent that any Necessary Consent that is required to assume and assign to Purchaser any Purchased Contract is not obtained by the Closing Date, each Seller shall, with respect to each such Purchased Contract, from and after the Closing and until the earliest to occur of (i) the date on which such applicable Necessary Consent is obtained (which Necessary Consents the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly; provided, however, that none of the Parties or any of their respective Affiliates shall be required to pay any consideration therefor other than filing, recordation or similar fees, which shall be borne by Purchaser), and (ii) the date on which Purchaser delivers a written notice of exclusion of such Purchased Contract pursuant to this Section 2.7 or the Purchased Contract is deemed rejected under Section 365 of the Bankruptcy Code, use reasonable best efforts during the term of such Purchased Contract to (A) provide to Purchaser the benefits under such Purchased Contract, (B) cooperate in any reasonable and lawful arrangement, including holding such Contract in trust for Purchaser pending receipt of the Necessary Consent, designed to provide such benefits to Purchaser and (C) use its reasonable best efforts to enforce for the account of Purchaser any rights of such Seller under such Purchased Contract, including the right to elect to terminate such Purchased Contract in accordance with the terms thereof upon the written direction of Purchaser. Purchaser shall reasonably cooperate with Sellers in order to enable Sellers to provide to Purchaser the benefits contemplated by this Section 2.7(g).
(h) Notwithstanding the foregoing, a Contract shall not be a Purchased an Assumed Contract hereunder and shall not be assigned to, or assumed by, Purchaser Buyer to the extent that such Contract (i) is designated for exclusion rejected by a Seller or terminated by a Seller in accordance with the terms hereof, deemed rejected under Section 365 of the Bankruptcy Code, hereof or terminated by the other party thereto thereto, or terminates or expires in accordance with by its terms terms, on or prior to the Designation Deadline Closing and is not continued or otherwise extended prior to or upon assumption and assignmentassumption, or (ii) subject constitutes an Employee Benefit Plan or an Insurance Policy. In addition, a Permit shall not be assigned to, or assumed by, Buyer to Section 2.8 below, the extent that such Permit requires a Necessary Consent of any Governmental Body Entity or other third party (other than, and in addition to, that of the Bankruptcy Court) in order to permit the assumption sale or transfer to Buyer of Sellers’ rights under such Permit, and no such Consent has been obtained prior to the Closing. If any such Consent shall not be obtained, or if any attempted assignment by Seller to Purchaser of such Contract or Permit would be ineffective or would impair Buyer’s rights under the such Contract or Permit in question so that Buyer would not in effect acquire the benefit of such rights, such Seller, to the maximum extent permitted by Law and the applicable Contract or Permit (and subject to any approval of the Bankruptcy Court that may be required), at Buyer’s sole cost and expense, and for a period not to exceed the Contract Designation Period, shall act as Buyer’s agent in order to obtain for Buyer the benefits thereunder and shall cooperate, to the maximum extent permitted by Law and the applicable Contract or Permit, with Buyer in any other reasonable arrangement designed to provide such benefits to Buyer; provided, however, that (i) Sellers shall not incur any costs associated with the obligations hereunder (including with respect to the Cure Amounts) and (ii) Sellers’ obligations hereunder shall only continue until the Chapter 11 Cases are closed or dismissed. Buyer shall reasonably cooperate with Sellers in order to enable Sellers to provide to Buyer the benefits contemplated by this Section 2.6(e).
(f) From the date hereof until the expiration of the Contract Designation Period, the Sellers shall not seek Bankruptcy Court approval to reject any Assignable Contract unless and until such Assignable Contract is designated by the Buyer as an Excluded Contract or unless otherwise agreed to in writing by the Buyer. Additionally, the Sellers shall file with the Bankruptcy Court such motions or pleadings as may be appropriate or otherwise as may be reasonably requested by the Buyer to preserve the Sellers’ right or ability to assume and assign any of the Assignable Contracts (including pursuant to Section 365(d)(4) of the Bankruptcy Code) until the expiration of the Contract Designation Period.
(g) Any Assignable Contract not designated by the Buyer as either an Assumed Contract or an Excluded Contract as of Closing shall constitute a “Designation Right Contract”. From and after the Closing Date until the date that is the earlier of (i) the entry of an order by the Bankruptcy Court dismissing the Chapter 11 Cases, converting the Chapter 11 Cases to a Chapter 7 of the Bankruptcy Code, or confirming a Chapter 11 plan of the Sellers, and (ii) seventy-five (75) days following the Closing Date (the “Contract Designation Period”), the Buyer shall have the right, by providing the Sellers with written notice, to amend Schedule 2.6(a) to designate any Designation Right Contract as (i) an Assumed Contract, or (ii) an Excluded Contract. Upon receipt of notice of the Buyer’s designation of a Designation Right Contract as an Assumed Contract in accordance with this Section 2.6(g) the Sellers shall promptly provide notice to the applicable non-Seller counterparty of such designation. Notwithstanding anything herein to the contrary, the Buyer shall pay and be solely responsible for all amounts that accrue and become due and owing under any Designation Right Contract from and after the Closing Date through the earlier to occur of (A) the expiration of the Contract Designation Period and (B) the date that is two (2) Business Days after written notice from the Buyer designating such Designation Right Contract as an Excluded Contract in accordance with this Section 2.6(g). Notwithstanding anything in this Agreement to the contrary, on the date any Designation Right Contract is designated an Assumed Contract pursuant to this Section 2.6(g), such Contract shall be deemed an Assumed Contract for all purposes under this Agreement and no further consideration shall be required to be paid by the Buyer for such Contract. Sellers shall cooperate in all respects with Buyer to provide a license or other means necessary to access any contract rights under any Designation Right Contract.
(h) If any Contract requires the payment of Cure Amounts in order to be assumed pursuant to Section 365 of the Bankruptcy Code, and no such Necessary Consent has been obtained Cure Amounts are undetermined on the Closing Date because a non-Seller counterparty to such Contract proposed Cure Amounts in an amount that is different than the amount of Cure Amounts proposed by the Sellers and such difference will not be resolved prior to the Closing Date (each such Contract, a “Disputed Amount Contract”), then the Sellers shall provide the Buyer, not less than three (3) days prior to the Closing Date, with a schedule that lists each such Disputed Amount Contract and the amount of Cure Amounts that has been proposed by each such non-Seller counterparty; provided that the Sellers shall agree to any Cure Amounts for any Contract irrevocably designated by the Buyer in writing as an Assumed Contract if instructed to do so by the Buyer. If the Sellers, with the Consent of the Buyer, and the non-Seller counterparty with respect to any Disputed Amount Contract, are unable to agree on Cure Amounts for such Disputed Amount Contract within five (5) Business Days following the Closing Date, solely upon the Buyer’s written request, the Sellers shall, at the expense of the Buyer, seek to have the amount of Cure Amounts related to such Disputed Amount Contract determined by the Bankruptcy Court by the date that is no later than the end of the Contract Designation DeadlinePeriod. Upon final determination of such Cure Amounts, the Buyer may elect to redesignate such Assumed Contract as an Excluded Contract. If such Assumed Contract is not so redesignated, (i) the applicable Sellers shall promptly take such steps as are reasonably necessary, including, if applicable, promptly on delivery of no less than five (5) Business Days’ notice to the non-Seller counterparty to such Contract, to cause such Contract to be assumed by the applicable Seller and assigned to the Buyer, including by executing and delivering to the Buyer an Assignment and Assumption Agreement with respect to such Assumed Contract, and (ii) the Buyer shall pay the Cure Amounts with respect to such Assumed Contract either (A) concurrently with the Sellers’ assumption and assignment thereof to the Buyer or (B) as agreed in writing by the Buyer and the applicable counterparty to such Assumed Contract, and execute and deliver to the applicable Sellers an Assignment and Assumption agreement with respect to such Assumed Contract. Notwithstanding the foregoing, if, following the Closing, it is discovered that a Contract that should have been listed on Schedule 2.6(a) was not so listed, the Sellers shall, to the extent the Sellers are still debtors-in-possession in the Chapter 11 Cases, promptly following the discovery thereof, notify the Buyer in writing of any such Contract and the Sellers’ good faith estimate of the amount of Cure Amounts applicable to each such Contract (and if no Cure Amount is estimated to be applicable with respect to any such Contract, the amount of such Cure Amount shall be designated for such Contract as “$0.00”), and upon the Buyer’s request, take all actions reasonably required to assume and assign to the Buyer such Contract, provided that the Buyer pay the applicable Cure Amount.
(i) The Parties agree and acknowledge that the covenants set forth in this Section 2.6 shall survive the Closing.
Appears in 1 contract
Samples: Equity and Asset Purchase Agreement (Priority Technology Holdings, Inc.)
Assumption and Assignment of Contracts. (a) Promptly, but in any event within 20 days from the Effective Date, Sellers shall deliver to Purchaser (i) a true and complete list of all material Contracts used in the Business to which a Seller is a party, and within two party (other than Sellers’ insurance policies, confidentiality agreements, employment agreements, offer letters, severance agreements and consulting agreements), and within five twofive Business Days of Purchaser’s request, Sellers shall make available a true and copy of any such Contract, and (ii) Schedule 2.7(a), which schedule shall contain, with respect to each Contract, Sellers’ good-faith best estimate, as certified by the Chief Executive Officer or Chief Financial Officer of Sellers, of the amount of Cure Costs with respect to each such Contract; provided, however, that, from and after the date of delivery of Schedule 2.7(a) hereunder until 30 days from the Effective Date, Sellers may provide updates or supplements to Schedule 2.7(a) to include revised Cure Costs with respect to any Contract set forth therein, which updates shall amend Schedule 2.7(a) for all purposes hereof.
(b) Notwithstanding anything in this Agreement to the contrary, Purchaser may, from time to time and in its sole and absolute discretion, amend or revise Schedule 2.7(a) in order to add or eliminate any Contract to or from such Schedule up to one Business Day prior to the Qualified Bid DeadlineDeadline12:00 p.m. Eastern Time on January 10, 2017. Automatically upon the addition of any Contract to Schedule 2.7(a) by Purchaser in accordance with the previous sentence, but subject to Purchaser’s right to remove any such Contract pursuant to this Section 2.7(b), such Contract shall be a Purchased Contract for all purposes of this Agreement. Automatically upon the deletion of any Contract from Schedule 2.7(a) by Purchaser in accordance with the first sentence of this Section 2.7(b), such Contract shall be an Excluded Asset for all purposes of this Agreement, and no Liabilities arising thereunder or relating thereto shall be assumed by Purchaser or be the obligation, liability or responsibility of Purchaser. If any Contract is added to the list of Purchased Contracts in accordance with this Section 2.7(b), then Sellers shall take such steps as are reasonably necessary (other than payment of any Cure Costs) to cause such Contract to be assumed and assigned to Purchaser as promptly as possible at or following the Closing.
(c) The Sale Order shall provide for the assumption by Sellers, and the assignment to the extent legally capable of being assigned by Sellers to Purchaser, of the Purchased Contracts pursuant to Section 365 of the Bankruptcy Code on the terms and conditions set forth in the remainder of this Section 2.7. At Purchaser’s request, and at Purchaser’s sole cost and expense, Sellers shall reasonably cooperate from the Effective Date forward with Purchaser as reasonably requested by Purchaser Purchaser
(i) to allow Purchaser to enter into an amendment of any Purchased Contract upon assumption of such Purchased Contract by Purchaser (and Sellers shall reasonably cooperate with Purchaser to the extent reasonably requested with Purchaser in negotiations with the counterparties thereof), or (ii) to otherwise amend any Purchased Contract to the extent such amendments would not adversely affect any Seller; provided that (A) in no event shall any such amendments be effective prior to the Closing and (B) Sellers shall not be required to enter into any such amendment if such amendment would result in an assumption by Seller of such Purchased Contract unless such Purchased Contract will be assigned to Purchaser at the time of such assumption.
(d) Within four Business Days following the Bid Deadline, the applicable Seller shall file with the Bankruptcy Court and serve notice (an “Assumption Notice”) by first class mail on all non-debtor counterparties to any Contract included on Schedule 2.7(a) as of one Business Day prior to the Qualified Bid Deadline, and provide a copy of such Assumption Notice to Purchaser; provided that the assumption of any Contract on Schedule 2.7(a) will only occur at the Closing. At the Closing, Sellers shall assume and assign to Purchaser the Purchased Contracts, in each case, pursuant to Section 365 of the Bankruptcy Code and the Sale Order, subject to provision by Purchaser of adequate assurance as may be required under Section 365 of the Bankruptcy Code. The Cure Costs in respect of all of the Purchased Contracts shall be borne by Purchaser and shall not be the obligation, liability or responsibility of Sellers. Prior to the Sale Hearing, Sellers shall commence appropriate proceedings before the Bankruptcy Court and otherwise take all reasonably necessary actions in order to determine Cure Costs with respect to any Purchased Contract.
(e) As part of the Sale Motion (or as necessary in one or more separate motions), Sellers shall request that, by virtue of any Seller providing notice (in accordance with the assumption and assignment procedures set forth in the Bidding Procedures Order) of its intent to assume and assign any Purchased Contract, the Bankruptcy Court deem any non-debtor party to such Purchased Contract that does not file an objection with the Bankruptcy Court during such notice period to have given any Necessary Consent to the assumption of the Purchased Contract by the relevant Seller and assignment to Purchaser.
(f) Sellers shall use their respective commercially reasonable efforts to obtain one or more orders of the Bankruptcy Court, which order(s) shall be in form and substance reasonably acceptable to Purchaser, and shall reflect the terms and conditions set forth herein, to assume and assign the Purchased Contracts to Purchaser on the terms set forth in this Section 2.7. In the event Sellers are unable to obtain such an order for assumption and assignment of any such Purchased Contract to Purchaser, then the Parties shall use commercially reasonable efforts until the Designation Deadline to obtain, and to cooperate in obtaining, all Necessary Consents from Governmental Bodies and third parties necessary to assume and assign such Purchased Contracts to Purchaser, including, in the case of Purchaser, paying any applicable Cure Costs.
(g) Subject to Section 2.8, to the extent that any Necessary Consent that is required to assume and assign to Purchaser any Purchased Contract is not obtained by the Closing Date, each Seller shall, with respect to each such Purchased Contract, from and after the Closing and until the earliest to occur of (i) the date on which such applicable Necessary Consent is obtained (which Necessary Consents the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly; provided, however, that none of the Parties or any of their respective Affiliates shall be required to pay any consideration therefor other than filing, recordation or similar fees, which shall be borne by Purchaser), and (ii) the date on which Purchaser delivers a written notice of exclusion of such Purchased Contract pursuant to this Section 2.7 or the Purchased Contract is deemed rejected under Section 365 of the Bankruptcy Code, use reasonable best efforts during the term of such Purchased Contract to (A) provide to Purchaser the benefits under such Purchased Contract, (B) cooperate in any reasonable and lawful arrangement, including holding such Contract in trust for Purchaser pending receipt of the Necessary Consent, designed to provide such benefits to Purchaser and (C) use its reasonable best efforts to enforce for the account of Purchaser any rights of such Seller under such Purchased Contract, including the right to elect to terminate such Purchased Contract in accordance with the terms thereof upon the written direction of Purchaser. Purchaser shall reasonably cooperate with Sellers in order to enable Sellers to provide to Purchaser the benefits contemplated by this Section 2.7(g).
(h) Notwithstanding the foregoing, a Contract shall not be a Purchased Contract hereunder and shall not be assigned to, or assumed by, Purchaser to the extent that such Contract (i) is designated for exclusion by a Seller in accordance with the terms hereof, deemed rejected under Section 365 of the Bankruptcy Code, or terminated by the other party thereto or terminates or expires in accordance with its terms on or prior to the Designation Deadline and is not continued or otherwise extended prior to or upon assumption and assignment, or (ii) subject to Section 2.8 below, requires a Necessary Consent of any Governmental Body or other third party (other than, and in addition to, that of the Bankruptcy Court) in order to permit the assumption and assignment by Seller to Purchaser of such Contract pursuant to Section 365 of the Bankruptcy Code, and no such Necessary Consent has been obtained prior to the Designation Deadline.
Appears in 1 contract
Samples: Asset Purchase Agreement
Assumption and Assignment of Contracts. (a) Promptly, but in any event within 20 days from the Effective Date, Sellers shall deliver to Purchaser (i) a true and complete list of all material Contracts used in the Business to which a Seller is a party, and within two (other than Sellers’ insurance policies, confidentiality agreements, employment agreements, offer letters, severance agreements and consulting agreements), and within five Business Days of Purchaser’s request, Sellers shall make available a true and copy of any such Contract, and (ii) Schedule 2.7(a), which schedule shall contain, with respect to each Contract, Sellers’ good-faith best estimate, as certified by the Chief Executive Officer or Chief Financial Officer of Sellers, of the amount of Cure Costs with respect to each such Contract; provided, however, that, from and after the date of delivery of Schedule 2.7(a) hereunder until 30 days from the Effective Date, Sellers may provide updates or supplements to Schedule 2.7(a) to include revised Cure Costs with respect to any Contract set forth therein, which updates shall amend Schedule 2.7(a) for all purposes hereof.
(b) Notwithstanding anything in this Agreement to the contrary, Purchaser may, from time to time and in its sole and absolute discretion, amend or revise Schedule 2.7(a) in order to add or eliminate any Contract to or from such Schedule up to one Business Day prior to the Qualified Bid Deadline. Automatically upon the addition of any Contract to Schedule 2.7(a) by Purchaser in accordance with the previous sentence, but subject to Purchaser’s right to remove any such Contract pursuant to this Section 2.7(b), such Contract shall be a Purchased Contract for all purposes of this Agreement. Automatically upon the deletion of any Contract from Schedule 2.7(a) by Purchaser in accordance with the first sentence of this Section 2.7(b), such Contract shall be an Excluded Asset for all purposes of this Agreement, and no Liabilities arising thereunder or relating thereto shall be assumed by Purchaser or be the obligation, liability or responsibility of Purchaser. If any Contract is added to the list of Purchased Contracts in accordance with this Section 2.7(b), then Sellers shall take such steps as are reasonably necessary (other than payment of any Cure Costs) to cause such Contract to be assumed and assigned to Purchaser as promptly as possible at or following the Closing.
(c) The Sale Order shall provide for the assumption by Sellers, and the assignment to the extent legally capable of being assigned by Sellers to PurchaserBuyer, of the Purchased Assumed Contracts pursuant to Section 365 of the Bankruptcy Code on the terms and conditions set forth in the remainder of this Section 2.72.6, and shall provide for the Designation Deadline as defined herein. At PurchaserBuyer’s request, and at PurchaserBuyer’s sole cost and expense, Sellers shall reasonably cooperate from the Effective Date date hereof forward with Purchaser Buyer as reasonably requested by Purchaser Buyer (i) to allow Purchaser Buyer to enter into an amendment of any Purchased Contract Lease upon assumption of such Purchased Contract Lease by Purchaser Buyer (and Sellers shall reasonably cooperate with Purchaser Buyer to the extent reasonably requested with Purchaser Buyer in negotiations with the counterparties landlords thereof), or (ii) to otherwise amend any Purchased Contract Lease to the extent such amendments would not adversely affect any Seller; provided that (A) in no event shall any such amendments be effective prior to the Closing and (B) Sellers shall not be required to enter into any such amendment if such amendment would result in an assumption by any Seller of such Purchased Contract Lease, unless such Purchased Contract Lease will be assigned to Purchaser Buyer at the time of such assumption.
(db) Within four Buyer shall, prior to the hearing on the Sale Motion, identify the Non-Real Property Contracts and Leases that Buyer has decided will be Assumed Contracts to be assumed and assigned to Buyer on the Closing Date by providing a list thereof to Sellers (as updated in accordance with this Agreement, the “Closing Assumed Contract List”). Up to 3 Business Days following prior to the Bid DeadlineClosing Date, Buyer may, in its sole discretion, add or remove any Non-Real Property Contract or Lease as an Assumed Contract to be assumed and assigned to Buyer on the Closing Date by amending the Closing Assumed Contract List, and, in connection with the Closing, the applicable Seller shall file with move in the Bankruptcy Court and serve notice (an “Assumption Notice”) by first class mail to assign any such Non-Real Property Contract or Lease on all non-debtor counterparties the Closing Assumed Contract List to any Contract included on Schedule 2.7(a) as of one Business Day prior to the Qualified Bid DeadlineBuyer, and provide a copy of such Assumption Notice to Purchaser; provided that the assumption of any Contract on Schedule 2.7(a) will only occur at the Closing. At the Closing, Sellers Closing shall assume and assign to Purchaser to, and Buyer shall accept the Purchased Contractsassignment of and assume such Non-Real Property Contract or Lease. In advance of the Closing Date, Buyer may, in each caseits sole discretion, pursuant designate a Non-Real Property Contract or Lease for exclusion and rejection by delivering written notice to Section 365 Sellers and, in connection with the Closing, the applicable Seller shall move to reject any such Non-Real Property Contract or Lease as of the Bankruptcy Code Closing Date (which date shall constitute the Rejection Effective Date with respect thereto). From and after the Sale OrderClosing Date until the Designation Deadline, subject to provision by Purchaser of adequate assurance as may be required under Section 365 of the Bankruptcy Code. The Cure Costs in respect of all of the Purchased Contracts shall be borne by Purchaser and shall not be the obligation, liability or responsibility of Sellers. Prior to the Sale Hearing, Sellers shall commence appropriate proceedings before the Bankruptcy Court and otherwise take all reasonably necessary actions in order to determine Cure Costs with respect to any Purchased Non-Real Property Contract or Lease that was neither included on the Closing Assumed Contract List nor excluded and rejected as of the Closing Date, Buyer may, in its sole discretion, (i) designate such Non-Real Property Contract or Lease as an Assumed Contract by providing written notice to Sellers, specifying the Non-Real Property Contracts or Leases to be assumed by Sellers and assigned to Buyer or (ii) designate such Non-Real Property Contract or Lease for exclusion and rejection for purposes of this Agreement and, if executory, to be rejected by providing written notice to Sellers, specifying the Non-Real Property Contracts or Leases to be excluded and rejected by the applicable Seller and the date that such rejection shall be effective, which rejection shall be effective upon the delivery of such notice to Sellers (each, a “Rejection Effective Date”); provided, however, that, notwithstanding anything herein to the contrary, Buyer may not designate any Lease for exclusion and rejection if such exclusion and rejection would result in fewer than 140 Leases being assumed and assigned to Buyer. Upon delivery of a notification by Buyer with respect to any Non-Real Property Contract or Lease under Section 2.6(b)(i), the applicable Seller shall move in the Bankruptcy Court within 5 days of receipt of such notice to assign such Non-Real Property Contract or Lease to Buyer and shall assume and assign to, and Buyer shall accept the assignment of and assume such Non-Real Property Contract or Lease. Upon delivery of a notification by Buyer with respect to any Non-Real Property Contract or Lease under Section 2.6(b)(ii), the applicable Seller shall move in the Bankruptcy Court within 5 days of receipt of such notice to reject such Non-Real Property Contract or Lease as of the applicable Rejection Effective Date. In the event that Buyer has not provided a written designation to assume and assign or reject any Non-Real Property Contract or Lease pursuant to this Section 2.6(b) by the Designation Deadline, then such Non-Real Property Contract or Lease shall be deemed to be excluded and rejected and Sellers may move in the Bankruptcy Court to reject such Non-Real Property Contract or Lease as of the Designation Deadline (which Designation Deadline shall constitute the Rejection Effective Date with respect thereto), and no Seller shall have any obligation to assign any such Non-Real Property Contract or Lease to Buyer hereunder. Any Non-Real Property Contract or Lease that is designated (or deemed to be designated) for exclusion and rejection pursuant to this Section 2.6(b) shall constitute an “Excluded Contract” as of the Closing Date or, if thereafter, as of the Rejection Effective Date. To the extent that a Non-Real Property Contract or Lease has not at Closing been designated as an Excluded Contract or an Assumed Contract, then, until the Rejection Effective Date, Buyer shall be obligated to perform or cause to be performed all of Sellers’ obligations under such Non-Real Property Contract or Lease, and Buyer shall be entitled to all benefits of Sellers thereunder; provided that no Cure Amount shall be due with respect to such Non-Real Property Contract or Lease until the permanent assumption thereof at Assumption Approval in accordance with Section 2.6(g). Notwithstanding anything to the contrary contained herein, prior to the Designation Deadline, Buyers shall have designated for assumption by Sellers and assignment to Buyers such number of Leases that when added to any Leases included in the Assumed Contracts as of the Closing equals at least 140 Leases. In determining the total number of Leases assumed and assigned to Buyer, the following shall be included (in addition to Leases actually assumed and assigned to Buyer): (x) store locations that were previously closed by Sellers but reopened by Buyer (provided that Buyer pays the Cure Amounts due with respect to the Lease for such store); and (y) any Lease for which the landlord thereunder objects to the assignment and assumption of such Lease for any reason (other than payment of the Cure Amount) and such objection is not resolved in a manner acceptable to Buyer.
(c) After the Closing and prior to the Designation Deadline, Sellers shall not terminate, amend, supplement, modify, waive any rights under, or create any Lien with respect to any Non-Real Property Contract or any Lease, or take any affirmative action not required by the terms thereof, without the prior written consent of Buyer (not to be unreasonably withheld or delayed), unless Buyer has provided notice to Sellers in writing designating such Non-Real Property Contract or Lease for rejection pursuant to Section 2.6(b).
(d) Within three (3) Business Days of Buyer’s delivery of any notice of removal or designation of any Non-Real Property Contract or Lease as an Assumed Contract by Buyer pursuant to Section 2.6(b), or such lesser time as is approved by the Bankruptcy Court, Sellers shall give notice of the removal or designation of such Non-Real Property Contract or Lease as an Assumed Contract to the other parties thereto.
(e) As part of the Sale Motion (or as necessary in one or more separate motions), Sellers shall request that, by virtue of any Seller providing ten (10) Business Days’ prior notice (in accordance with the assumption and assignment procedures set forth in the Bidding Procedures Order) of its intent to assume and assign any Purchased Contract, the Bankruptcy Court deem any non-debtor party to such Purchased Contract that does not file an objection with the Bankruptcy Court during such notice period to have given any Necessary required Consent to the assumption of the Purchased Contract by the relevant Seller and assignment to PurchaserBuyer.
(f) In connection with the assumption and assignment to Buyer of any Assumed Contract that is executory pursuant to this Section 2.6, the cure amounts, as determined by the Bankruptcy Court, if any (such amounts, the “Cure Amounts”), necessary to cure all defaults, if any, and to pay all actual or pecuniary losses that have resulted from such defaults under the Assumed Contracts, including any amounts payable to any landlord under any Lease that is an Assumed Contract that relates to the period prior to the Assumption Approval, shall be paid by Buyer, on or before the Assumption Approval, and not by Sellers and Sellers shall have no liability therefor, and neither the Cure Amounts paid by nor the expense of any other obligation set forth in this Section 2.6(f) shall reduce, directly or indirectly, any consideration received by Sellers hereunder; provided that any applicable Cure Amounts with regard to Assumed Contracts listed in the Closing Assumed Contract List shall be paid by Buyer at the Closing.
(g) Sellers shall use their respective commercially reasonable efforts to obtain one or more orders an order of the Bankruptcy Court, which order(s) shall be in form and substance reasonably acceptable Court to Purchaser, and shall reflect the terms and conditions set forth herein, to assume and assign the Purchased Assumed Contracts to Purchaser Buyer (the “Assumption Approval”) on the terms set forth in this Section 2.72.6. In the event Sellers are unable to obtain assign any such Assumed Contract to Buyer pursuant to an order for assumption and assignment of any such Purchased Contract to Purchaserthe Bankruptcy Court, then the Parties shall use their commercially reasonable efforts until the Designation Deadline to obtain, and to cooperate in obtaining, all Necessary Consents from Governmental Bodies Entities and third parties necessary to assume and assign such Purchased Assumed Contracts to PurchaserBuyer, including, in the case of PurchaserBuyer, paying any applicable Cure CostsAmounts.
(gh) Subject to Section 2.8, to To the extent that any Necessary Consent that is required to assume and assign to Purchaser Buyer any Purchased Assumed Contract is not obtained by the Closing DateDesignation Deadline, each Seller shall, with respect to each such Purchased Assumed Contract, from and after the Closing and until the earliest to occur of (ix) the date on which such applicable Necessary Consent is obtained (which Necessary Consents the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly; provided, however, that none of the Parties or any of their respective Affiliates shall be required to pay any consideration therefor other than filing, recordation or similar fees, which shall be borne by PurchaserBuyer), and (iiy) the date on which Purchaser delivers a written notice of exclusion of such Purchased Contract pursuant to this Section 2.7 or the Purchased Contract is deemed rejected under Section 365 following the written request of the Bankruptcy CodeBuyer, use commercially reasonable best efforts during the term of such Purchased Assumed Contract to (Ai) provide to Purchaser Buyer the benefits under such Purchased Assumed Contract, (Bii) cooperate in any reasonable and lawful arrangement, arrangement (including holding such Contract in trust for Purchaser Buyer pending receipt of the Necessary required Consent, ) designed to provide such benefits to Purchaser Buyer and (Ciii) use its commercially reasonable best efforts to enforce for the account of Purchaser Buyer any rights of such Seller under such Purchased Contract, Assumed Contract (including the right to elect to terminate such Purchased Assumed Contract in accordance with the terms thereof upon the written direction of PurchaserBuyer). Purchaser Buyer shall reasonably cooperate with Sellers in order to enable Sellers to provide to Purchaser Buyer the benefits contemplated by this Section 2.7(g2.6(h).
(hi) Notwithstanding the foregoing, a Contract shall not be a Purchased an Assumed Contract hereunder and shall not be assigned to, or assumed by, Purchaser Buyer to the extent that such Contract (i) is designated for exclusion rejected by a Seller or terminated by a Seller in accordance with the terms hereof, deemed rejected under Section 365 of the Bankruptcy Code, hereof or terminated by the other party thereto thereto, or terminates or expires in accordance with by its terms terms, on or prior to the Designation Deadline and is not continued or otherwise extended prior to or upon assumption and assignmentassumption, or (ii) subject to Section 2.8 below, requires a Necessary Consent of any Governmental Body Entity or other third party (other than, and in addition to, that of the Bankruptcy Court) in order to permit the assumption and assignment by Seller sale or transfer to Purchaser Buyer of Sellers’ rights under such Contract pursuant to Section 365 of the Bankruptcy CodeContract, and no such Necessary Consent has been obtained prior to the Designation Deadline. In addition, a Permit shall not be assigned to, or assumed by, Buyer to the extent that such Permit requires a Consent of any Governmental Entity or other third party (other than, and in addition to, that of the Bankruptcy Court) in order to permit the sale or transfer to Buyer of Sellers’ rights under such Permit, and no such Consent has been obtained prior to the Closing.
Appears in 1 contract
Assumption and Assignment of Contracts. (a) Promptly, but in any event within 20 days from the Effective Date, Sellers shall deliver assign to Purchaser (i) a true and complete list of all material Contracts used in the Business to which a Seller is a partyBuyer or any Buyer Designee, and within two (other than Sellers’ insurance policiesBuyer or any such Buyer Designee shall assume, confidentiality agreements, employment agreements, offer letters, severance agreements and consulting agreements), and within five Business Days of Purchaser’s request, Sellers the Closing Assumed Contracts at the Closing pursuant to the Sale Order. Buyer shall make available a true and copy provide adequate assurance of any such Contract, future performance in connection with the assignment and (ii) Schedule 2.7(a), which schedule shall contain, with respect to each Contract, Sellers’ good-faith best estimate, as certified by the Chief Executive Officer or Chief Financial Officer of Sellers, assumption of the amount Closing Assumed Contracts at Closing or the effective date of Cure Costs with respect to each such assignment and assumption of an Additional Assumed Contract; provided, however, that, from and after the date of delivery of Schedule 2.7(a) hereunder until 30 days from the Effective Date, Sellers may provide updates or supplements to Schedule 2.7(a) to include revised that all Cure Costs with respect to any Contract set forth therein, which updates shall amend Schedule 2.7(a) for all purposes hereof.
(b) Notwithstanding anything in this Agreement to the contrary, Purchaser may, from time to time and in its sole and absolute discretion, amend or revise Schedule 2.7(a) in order to add or eliminate any Contract to or from such Schedule up to one Business Day prior to the Qualified Bid Deadline. Automatically upon the addition of any Contract to Schedule 2.7(a) by Purchaser in accordance with the previous sentence, but subject to Purchaser’s right to remove any such Contract pursuant to this Section 2.7(b), such Contract shall be a Purchased Contract for all purposes of this Agreement. Automatically upon the deletion of any Contract from Schedule 2.7(a) by Purchaser in accordance with the first sentence of this Section 2.7(b), such Contract shall be an Excluded Asset for all purposes of this Agreement, and no Liabilities arising thereunder or relating thereto shall be assumed by Purchaser or be the obligation, liability or and responsibility of Purchaser. If any Contract is added to the list of Purchased Contracts in accordance with this Section 2.7(b), then Sellers shall take such steps as are reasonably necessary (other than payment of any Cure Costs) to cause such Contract to be assumed and assigned to Purchaser as promptly as possible at or following the ClosingSellers.
(cb) The Sale Order shall provide for the assumption by Sellersthe applicable Seller party thereto, and the assignment to the extent legally capable of being assigned by Sellers such Seller to PurchaserBuyer or any Buyer Designee, of the Purchased Contracts each Closing Assumed Contract, and each Additional Assumed Contract, as applicable, pursuant to Section 365 of the Bankruptcy Code on Code, the terms and conditions set forth in the remainder of this Section 2.7. At Purchaser’s requestBid Procedures Order, and at Purchaser’s sole cost and expense, Sellers shall reasonably cooperate from the Effective Date forward with Purchaser as reasonably requested by Purchaser (i) to allow Purchaser to enter into an amendment of any Purchased Contract upon assumption of such Purchased Contract by Purchaser (and Sellers shall reasonably cooperate with Purchaser to the extent reasonably requested with Purchaser in negotiations with the counterparties thereof), or (ii) to otherwise amend any Purchased Contract to the extent such amendments would not adversely affect any Seller; provided that (A) in no event shall any such amendments be effective prior to the Closing and (B) Sellers shall not be required to enter into any such amendment if such amendment would result in an assumption by Seller of such Purchased Contract unless such Purchased Contract will be assigned to Purchaser at the time of such assumptionSale Order.
(dc) Within four Business Days following the Bid Deadline, the applicable Seller Sellers shall file with the Bankruptcy Court and serve a notice (a “Notice of Potential Assignment”) in the form and manner approved pursuant to the Bid Procedures Order that Sellers may wish to assume and assign certain Seller Contracts in connection with the Transactions (each, an “Assumption NoticeIdentified Contract”) by first class mail on all non-debtor counterparties to ). At any Contract included on Schedule 2.7(a) as of one Business Day time prior to the Qualified date that is five (5) days prior to the date of the Bankruptcy Court hearing to consider approval of this Agreement (the “Sale Hearing”), Buyer may, subject to the terms of the Bid DeadlineProcedures Order, and provide a copy by written notice to the Sellers, designate, in writing, any Identified Contract for rejection by the Sellers effective on or as soon as reasonably practicable after the Closing (such Identified Contracts, the “Rejected Identified Contracts”). The Rejected Identified Contracts as of such Assumption Notice to Purchaser; provided that the assumption of any Contract date hereof are set forth on Schedule 2.7(a1.5(c), which schedule shall be (and shall be deemed) will only occur at modified or supplemented to reflect additions or removals, as applicable, of Identified Contracts that are designated for rejection as set forth in this Section 1.5 (the Closing“Rejected Contracts Schedule”). At the Closing, Sellers shall assume and assign to Purchaser Buyer or any Buyer Designee the Purchased Closing Assumed Contracts and any Additional Assumed Contracts, in each case, pursuant to Section 365 of the Bankruptcy Code Code, the Bid Procedures Order, and the Sale Order, subject to provision by Purchaser Buyer of adequate assurance of future performance as may be required under Section 365 of the Bankruptcy Code.
(d) At any time prior to the date that is five (5) days prior to the date of the Sale Hearing (the “Designation Deadline”), Buyer may, subject to the terms of the Bid Procedures Order, by written notice to the Sellers, (i) designate additional Identified Contracts or any other executory contracts that Buyer wishes the Sellers to assume and assign to Buyer or any Buyer Designee in connection with the Transactions as “Additional Assumed Contracts” by providing written notice to Sellers in the form of an updated Additional Assumed Contracts Schedule; and (ii) designate additional Identified Contracts or any other executory Contracts that Buyer wishes for Sellers to reject in connection with the Transactions as “Additional Rejected Contracts” by providing written notice to Sellers in the form of an updated Rejected Contracts Schedule. The Notwithstanding anything to the contrary contained in this Agreement, if as of the Closing Date, any Closing Assumed Contract or Additional Assumed Contract is the subject of an objection as to the amount of the Cure Costs in respect required for the Sellers to assume and assign such contract to the Buyer or any Buyer Designee, or other objection as to the assumption and assignability of all such contract, and such objection has not been resolved to the satisfaction of Buyer prior to the Purchased Closing Date, Buyer shall have the right to remove such contract from the Closing Assumed Contracts shall be borne by Purchaser and Additional Assumed Contracts lists before the Closing Date such that such contract shall not be considered assumed and assigned to Buyer as of the obligationClosing Date hereunder. Additional procedures for the assumption and assignment of any additional Closing Assumed Contracts and Additional Assumed Contracts, liability or responsibility of Sellers. Prior to if any, shall be as set forth in the Sale Hearing, Sellers shall commence appropriate proceedings before the Bankruptcy Court and otherwise take all reasonably necessary actions in order to determine Cure Costs with respect to any Purchased ContractOrder.
(e) [Reserved].
(f) As part of the Sale Motion motion with respect to the Bid Procedures Order (or as necessary in one or more separate motions), Sellers shall request that, by virtue of any Seller providing prior notice (in accordance with pursuant to the assumption and assignment procedures set forth in the Bidding Bid Procedures Order) Order of its intent to assume and assign any Purchased Closing Assumed Contract or Additional Assumed Contract, the Bankruptcy Court deem any non-debtor party to such Purchased Closing Assumed Contract or Additional Assumed Contract that does not file an objection with the Bankruptcy Court during such notice period to have given any Necessary Consent to the assumption of the Purchased Closing Assumed Contract or Additional Assumed Contract by the relevant Seller and assignment to PurchaserBuyer or any Buyer Designee.
(fg) At Buyer’s request, Sellers shall reasonably cooperate with Buyer as reasonably requested by Buyer to allow Buyer to enter into an amendment of any Closing Assumed Contract or Additional Assumed Contract upon assignment of such Closing Assumed Contract or Additional Assumed Contract to Buyer or any Buyer Designee (and Sellers shall reasonably cooperate with Buyer to the extent reasonably requested by Buyer in negotiations with the counterparties thereof); provided that (i) in no event shall any such amendments be effective prior to the Closing and (ii) Sellers shall use their respective commercially reasonable efforts not be required to obtain one enter into any such amendment if such amendment would result in the incurrence of any additional Liability or more orders any other adverse effect that would not have existed but for such amendment by Sellers that is not otherwise paid by Buyer at the time of the Bankruptcy Court, which order(sassumption by Sellers of such Closing Assumed Contract or Additional Assumed Contract.
(h) shall be in form [Reserved]
(i) Subject to Section 1.5(j) and substance reasonably acceptable to Purchaser, and shall reflect the terms and conditions set forth hereinBid Procedures Order, to assume and assign the Purchased Contracts extent that there is (i) an objection to Purchaser on the terms set forth in this Section 2.7. In the event Sellers are unable to obtain such an order for assumption and assignment of any such Purchased Closing Assumed Contract to Purchaseroutstanding at the Closing Date, then the Parties shall use commercially reasonable efforts until the Designation Deadline to obtain, and to cooperate in obtaining, all Necessary Consents from Governmental Bodies and third parties necessary to assume and assign such Purchased Contracts to Purchaser, including, in the case of Purchaser, paying any applicable Cure Costs.
(gii) Subject to Section 2.8, an objection to the extent that assumption and assignment of any Additional Assumed Contract or (iii) any Necessary Consent that is required to assume and assign to Purchaser Buyer or any Purchased Buyer Designee any Closing Assumed Contract or Additional Assumed Contract is not obtained by the Closing Date, each Seller shall, with respect to each such Purchased Seller Contract, from and after the Closing and until the earliest to occur of (iA) the date on which such objection is resolved or such applicable Necessary Consent is obtained (which Necessary Consents the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly; provided, however, that none of the Parties or any of their respective Affiliates shall be required to pay any consideration therefor other than filing, recordation or similar fees, which shall be borne by Purchaser)obtained, and (iiB) the date on which Purchaser delivers a written notice of exclusion of such Purchased Contract pursuant to this Section 2.7 or the Purchased Seller Contract is deemed rejected under Section 365 of the Bankruptcy Code, use commercially reasonable best efforts during the term of such Purchased Seller Contract (and to the extent the term of such Seller Contract ends prior to the earlier of clauses (A) or (B) above) to (1) provide to Purchaser Buyer the benefits under such Purchased ContractSeller Contract (it being understood that Buyer shall be solely responsible for the obligations under such Seller Contract during such period), (B2) cooperate in any reasonable and lawful arrangement, including holding such Seller Contract in trust for Purchaser Buyer pending resolution of such objection or receipt of the Necessary Consent, designed to provide such benefits to Purchaser Buyer, and (C3) use its reasonable best efforts to enforce for the account of Purchaser Buyer any rights of such Seller under such Purchased Seller Contract, including the right to elect to terminate such Purchased Seller Contract in accordance with the terms thereof upon the written direction of PurchaserBuyer; provided, however, that notwithstanding the foregoing, Sellers shall not be obligated to take any action that breaches, violates or results in default under the terms of any Seller Contract. Purchaser Buyer shall reasonably cooperate with Sellers in order to enable Sellers to provide to Purchaser Buyer the benefits contemplated by this Section 2.7(gSection 1.5(i).
(hj) Notwithstanding the foregoing, a Seller Contract shall not be a Purchased Closing Assumed Contract or Additional Assumed Contract hereunder and shall not be assigned to, or assumed by, Purchaser to Buyer to the extent that such Seller Contract is (i) is designated for exclusion by a Seller in accordance with the terms hereof, deemed rejected under Section 365 of the Bankruptcy Code, or terminated by the other party thereto or terminates or expires in accordance with its terms on or prior to the Designation Deadline and is not continued or otherwise extended prior to or upon assumption and assignment, Code or (ii) the subject of an objection to Section 2.8 belowassumption or assignment or requires, requires a under applicable non-bankruptcy Law, Necessary Consent of any Governmental Body Entity or other third party (other than, and in addition to, that of the Bankruptcy Court) in order to permit the assumption and assignment by the applicable Seller to Purchaser Buyer or any Buyer Designee of such Seller Contract pursuant to Section 365 of the Bankruptcy Code, and no such objection has not been resolved or such Necessary Consent has not been obtained prior to the Designation Deadline60th day following the Closing (as such 60-day period may be extended by mutual agreement of Buyer and Sellers); provided that any Closing Assumed Contract or Additional Assumed Contract that is the subject of an objection with respect solely to the amount of the Cure Cost may be assumed and assigned prior to the resolution of such objection pursuant to the Bid Procedures Order (provided Sellers have escrowed the disputed Cure Cost pending resolution of such objection that is acceptable to Buyer).
(k) If prior to or following Closing, it is discovered that a Contract that is Related to the Business should have been listed on Schedule 1.5(c) as an Identified Contract but was not so listed and has not been rejected by Sellers (any such Contract, a “Previously Omitted Contract”), Sellers shall, promptly following the discovery thereof (but in no event later than two (2) Business Days following the discovery thereof), notify Buyer in writing of such Previously Omitted Contract and all Cure Costs (if any) for such Previously Omitted Contract. Buyer shall thereafter deliver written notice to Sellers, no later than five Business Days following notification of such Previously Omitted Contract from Sellers, designating such Previously Omitted Contract as “Assumed” or “Rejected” (a “Previously Omitted Contract Designation”). A Previously Omitted Contract designated in accordance with this Section 1.5(k) as “Rejected,” or with respect to which Buyer fails to deliver a Previously Omitted Contract Designation, shall be deemed an Excluded Contract and added to the Rejected Contracts Schedule.
(l) If Buyer designates a Previously Omitted Contract as “Assumed” in accordance with Section 1.5(k), (i) such Previously Omitted Contract shall be added to the Additional Assumed Contracts Schedule and deemed to be an “Additional Assumed Contract” for all purposes hereunder, and (ii) Sellers shall serve a notice (the “Previously Omitted Contract Notice”) on the counterparties to such Previously Omitted Contract notifying such counterparties 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 Section 1.5(l). The Previously Omitted Contract Notice shall provide the counterparties to such Previously Omitted Contract with notice pursuant to the terms of the Bid Procedures Order. If the counterparties, Sellers and Buyer are unable to reach a consensual resolution with respect to the objection, Sellers shall seek a hearing before the Bankruptcy Court (which may be sought on an expedited basis) to determine the Cure Costs and approve the assumption. If no objection is served on Sellers and Buyer, such Previously Omitted Contract may be deemed a Closing Assumed Contract. For the avoidance of doubt, Sellers shall be responsible for all Cure Costs relating to such “Assumed” Previously Omitted Contracts and for any Liabilities relating to such “Assumed” Previously Omitted Contracts arising prior to the assignment to Buyer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sequential Brands Group, Inc.)
