Assumption and Rejection of Executory Contracts and Unexpired Leases. Each Executory Contract and Unexpired Lease shall be deemed assumed, unless it is the subject of a motion to reject that is pending on the Effective Date or has been rejected pursuant to an order of the Court, without the need for any further notice to or action, order, or approval of the Court, as of the Effective Date, under sections 365 and 1123 of the Bankruptcy Code. The assumption of Executory Contracts and Unexpired Leases hereunder may include the assignment of certain of such contracts to Affiliates. The Confirmation Order will constitute an order of the Court approving the above-described assumptions and assignments. Except as otherwise provided herein or agreed to by the Debtors and the applicable counterparty, each assumed Executory Contract or Unexpired Lease shall include all modifications, amendments, supplements, restatements, or other agreements related thereto, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests. Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease or the validity, priority, or amount of any Claims that may arise in connection therewith. To the maximum extent permitted by law, to the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), then such provision shall be deemed modified such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto.
Appears in 4 contracts
Samples: Transaction Support Agreement (Bonanza Creek Energy, Inc.), Voting and Support Agreement (HighPoint Resources Corp), Voting and Support Agreement (Bonanza Creek Energy, Inc.)
Assumption and Rejection of Executory Contracts and Unexpired Leases. Each (a) On the Effective Date, all executory contracts and unexpired leases of the Debtors shall be assumed pursuant to the provisions of section 365 of the Bankruptcy Code, except: (i) any executory contracts and unexpired leases that are the subject of separate motions to reject filed pursuant to section 365 of the Bankruptcy Code by the Debtors before the Effective Date; (ii) any contracts and leases listed in any Schedule 2 attached to the Disclosure Statement and any subsequently filed “Schedule of Rejected Executory Contract Contracts and Unexpired Lease shall Leases” to be deemed assumedfiled by the Debtors with the Bankruptcy Court before the entry of, unless it or as an exhibit to, the Confirmation Order; (iii) all executory contracts and unexpired leases rejected under this Plan or by order of the Bankruptcy Court entered before the Effective Date; (iv) any executory contract or unexpired lease that is the subject of a dispute over the amount or manner of cure pursuant to the next section hereof and for which the Debtors make a motion to reject such contract or lease based upon the existence of such dispute filed at any time; and (v) any agreement, obligation, security interest, transaction or similar undertaking that the Debtors believe is not executory or a lease that is pending on later determined by the Effective Date Bankruptcy Court to be an executory contract or has been rejected pursuant unexpired lease that is subject to an order of the Court, without the need for any further notice to assumption or action, order, or approval of the Court, as of the Effective Date, rejection under sections section 365 and 1123 of the Bankruptcy Code.
(b) Inclusion of a contract, lease or other agreement on any Schedule 2 attached to the Disclosure Statement shall constitute adequate and sufficient notice that (i) any Claims arising thereunder or related thereto shall be treated as General Unsecured Claims under the Plan, and (ii) the Debtors are no longer bound by, or otherwise obligated to perform, any such obligations, transactions, or undertakings relating thereto or arising thereunder. The assumption inclusion of a contract, lease or other agreement in Section 11.1(a) or on Disclosure Statement Schedule 3 or the “Schedule of Assumed and Assumed and Assigned Executory Contracts and Unexpired Leases hereunder may include the assignment of certain of such contracts to Affiliates. The Confirmation Order will Leases” shall not constitute an order of the Court approving the above-described assumptions and assignments. Except as otherwise provided herein or agreed to admission by the Debtors and as to the applicable counterpartycharacterization of whether any such included contract, each assumed Executory Contract lease or Unexpired Lease shall include all modifications, amendments, supplements, restatementsother agreement is, or is not, an executory contract or unexpired lease or whether any claimants under any such contract, lease or other agreements related thereto, and agreement are time-barred from asserting Claims against the Debtors. The Debtors reserve all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights with respect to the characterization of first refusal, any such agreements.
(c) The Plan shall constitute a motion to reject such executory contracts and unexpired leases set forth in any Schedule 2 attached to the Disclosure Statement and any other interests. Modifications, amendments, supplements, and restatements to prepetition subsequently filed “Schedule of Rejected Executory Contracts and Unexpired Leases that have been executed Leases” to be filed by the Debtors during with the Chapter 11 Cases Bankruptcy Court before the entry of, or as an exhibit to, the Confirmation Order, and the Debtors shall not be deemed to alter have no liability thereunder except as is specifically provided in the prepetition nature Plan. Entry of the Executory Contract Confirmation Order by the Clerk of the Bankruptcy Court shall constitute approval of such rejections pursuant to section 365(a) of the Bankruptcy Code and a finding by the Bankruptcy Court that each such rejected agreement, executory contract or Unexpired Lease unexpired lease is burdensome and that the rejection thereof is in the best interests of the Debtors and their Estates.
(d) The Plan shall constitute a motion to assume or the validity, priority, or amount of any Claims that may arise in connection therewith. To the maximum extent permitted by law, to the extent any provision in any Executory Contract or Unexpired Lease assume and assign such executory contracts and unexpired leases assumed or assumed and assigned pursuant to Section 11.1(a) and the Plan restricts Debtors shall have no liability thereunder for any breach of any assumed and assigned executory contract or preventslease occurring after such assignment pursuant to section 365(k) of the Bankruptcy Code, except as is specifically provided in the Plan. Entry of the Confirmation Order by the Clerk of the Bankruptcy Court shall constitute approval of such assumption or purports assumption and assignment pursuant to restrict sections 365(a), (b) and (f) of the Bankruptcy Code, and a finding by the Bankruptcy Court that the requirements of section 365(f) of the Bankruptcy Code have been satisfied. Any non-Debtor counterparty to an agreement listed on Schedule 3 or preventthe “Schedule of Assumed and Assumed and Assigned Executory Contracts and Unexpired Leases,” or otherwise designated as being assumed in Section 11.1(a), who disputes the assumption and/or assignment of an executory contract or is breached or unexpired lease must file with the Bankruptcy Court, and serve upon the Debtors and any Committee, a written objection to the assumption and/or assignment, which objection shall set forth the basis for the dispute by no later than ten (10) Business Days prior to the Confirmation Hearing. The failure to timely object shall be deemed breached by, a waiver of any and all objections to the assumption or assumption and assignment of such executory contracts and leases as set forth in Schedule 3 or the “Schedule of Assumed and Assumed and Assigned Executory Contract Contracts and Unexpired Leases” or Unexpired Lease (including any “change of control” provisionas otherwise designated as being assumed in Section 11.1(a), then such provision shall be deemed modified such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto.
Appears in 3 contracts
Samples: Noteholder Restructuring Plan Support Agreement, Noteholder Restructuring Plan Support Agreement (Gsi Group Inc), Noteholder Restructuring Plan Support Agreement (Gsi Group Inc)
Assumption and Rejection of Executory Contracts and Unexpired Leases. Each On the Effective Date, except as otherwise provided herein, all Executory Contract and Contracts or Unexpired Lease Leases shall be deemed assumedassumed by the applicable Reorganized Debtor pursuant to sections 365 and 1123 of the Bankruptcy Code, unless it is other than those Executory Contracts and Unexpired Leases that (i) are identified on the Rejected Executory Contracts and Unexpired Leases Schedule; (ii) have been previously rejected by a Final Order; (iii) have been previously assumed or assumed and assigned by a Final Order; (iv) are the subject of a motion to reject that is pending on the Effective Date or has been rejected Confirmation Date; (v) the Debtors have, as of the Confirmation Date, received authority to reject pursuant to an order of the Court, without Bankruptcy Court with the need for any further notice to or action, order, or approval effective date of the Court, as of such rejection occurring after the Effective Date; (vi) provide for payment of severance or other benefits to former employees of the Debtors (other than retiree benefits within the meaning of such term in section 1114(a) of the Bankruptcy Code), under whether in the form of a plan or individual agreement; and (vii) are solely with a Donlen Debtor, which to the extent not previously assumed by a Final Order shall be deemed to be rejected; provided, that, nothing in the Plan or Confirmation Order shall constitute an admission or finding that any plan or agreement referenced in the immediately preceding clause (vi) constitutes an Executory Contract; and provided further, that the Debtors reserve the right to seek enforcement of or other relief with respect to an assumed or assumed and assigned Executory Contract or Unexpired Lease following the Confirmation Date, including but not limited to seeking an order of the Bankruptcy Court for the rejection of such Executory Contract or Unexpired Lease for cause. Notwithstanding anything to the contrary contained herein, the Plan Support Agreement and the Stock Purchase Agreement shall be assumed by the Debtors or the Reorganized Debtors, as applicable, on the Effective Date pursuant to the Plan. Entry of the Confirmation Order shall constitute an order of the Bankruptcy Court approving the assumptions and rejections of such Executory Contracts or Unexpired Leases as set forth in the Plan, the Assumed Executory Contracts and Unexpired Leases Schedule, the Collective Bargaining Agreement Schedule, and the Rejected Executory Contracts and Unexpired Leases Schedule, pursuant to sections 365 365(a) and 1123 of the Bankruptcy Code. The assumption Except as otherwise specifically set forth herein, assumptions or rejections of Executory Contracts and Unexpired Leases hereunder may include pursuant to the assignment Plan are effective as of certain of such contracts to Affiliatesthe Effective Date. The Confirmation Order will constitute an order Debtors are authorized to abandon any of the Court approving Debtors’ personal property at or on the above-described assumptions and assignments. Except as otherwise provided herein or agreed leased premises subject to by an Unexpired Lease rejected pursuant to the Debtors Plan, and the counterparties to rejected leases may dispose of any such personal property remaining at or on the leased premises following the applicable counterparty, each assumed lease rejection date. Each Executory Contract or Unexpired Lease assumed pursuant to the Plan or by Bankruptcy Court order but not assigned to a third party before the Effective Date shall include all modificationsre-vest in and be fully enforceable by the applicable contracting Reorganized Debtor in accordance with its terms, amendmentsexcept as such terms may have been modified by any order of the Bankruptcy Court authorizing and providing for its assumption under applicable federal law (in each case, supplements, restatements, or other agreements related thereto, and all rights related thereto, if anyin accordance with applicable law, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests. Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature consent of the counterparty to such Executory Contract or Unexpired Lease Lease). Subject to applicable law, including section 365(d)(4) of the Bankruptcy Code, any motions to assume Executory Contracts or Unexpired Leases pending on the validityEffective Date shall be subject to approval by a Final Order of the Bankruptcy Court on or after the Effective Date but may be withdrawn, prioritysettled, or amount otherwise prosecuted by the Reorganized Debtors with any such disposition to be deemed effect an assumption, assumption and assignment, or rejection, as applicable, as of any Claims that may arise in connection therewiththe Effective Date. To the maximum extent permitted by law, to the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts restricts, conditions or prevents, or purports to restrict restrict, condition or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “anti-assignment,” “change of control,” consent right, or similar provision), then such provision shall be deemed modified such that the transactions transaction contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. The consummation of the Plan and the implementation of the Restructuring Transactions are not intended to, and shall not, constitute a “change of control,” “change in control,” or other similar event under any lease, contract, or agreement to which a Debtor is a party.
Appears in 1 contract
Samples: Plan Support Agreement (Hertz Corp)
Assumption and Rejection of Executory Contracts and Unexpired Leases. Each On the Effective Date, except as otherwise provided in Article V.H and elsewhere herein, all Executory Contract Contracts or Unexpired Leases not otherwise assumed or rejected will be deemed assumed by the applicable Reorganized Debtor in accordance with the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code, other than those that are: (a) identified on the Rejected Executory Contracts and Unexpired Lease shall be deemed assumed, unless it is Leases Schedule; (b) previously expired or terminated pursuant to their own terms; (c) have been previously assumed or rejected by the Debtors pursuant to a Final Order; (d) are the subject of a motion to reject that is pending on the Effective Date Date; or has been rejected pursuant to (e) have an ordered or requested effective date of rejection that is after the Effective Date. Entry of the Confirmation Order shall constitute an order of the CourtBankruptcy Court approving the assumptions, without the need for any further notice to or action, orderassumptions and assignments, or approval rejections of the CourtExecutory Contracts or Unexpired Leases as set forth in the Prepackaged Plan, as of the Effective DateRejected Executory Contracts and Unexpired Leases Schedule, under pursuant to sections 365 365(a) and 1123 of the Bankruptcy Code. The assumption Except as otherwise specifically set forth herein, assumptions or rejections of Executory Contracts and Unexpired Leases hereunder may include pursuant to the assignment of certain of such contracts to Affiliates. The Confirmation Order will constitute an order Prepackaged Plan are effective as of the Court approving the above-described assumptions and assignmentsEffective Date. Except as otherwise provided herein or agreed to by the Debtors and the applicable counterparty, each assumed Each Executory Contract or Unexpired Lease assumed pursuant to the Prepackaged Plan or by Bankruptcy Court order but not assigned to a third party before the Effective Date shall include all modificationsre-vest in and be fully enforceable by the applicable contracting Reorganized Debtor in accordance with its terms, amendmentsexcept as such terms may have been modified by the provisions of the Prepackaged Plan or any order of the Bankruptcy Court authorizing and providing for its assumption. Any motions to assume Executory Contracts or Unexpired Leases pending on the Effective Date shall be subject to approval by a Final Order on or after the Effective Date but may be withdrawn, supplements, restatementssettled, or other agreements related thereto, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests. Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed otherwise prosecuted by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Reorganized Debtors. Each Executory Contract or Unexpired Lease assumed pursuant to the Prepackaged Plan shall be assumed solely in accordance with the express and written terms of such Executory Contract or Unexpired Lease. The assumption of an Executory Contract or Unexpired Lease pursuant to the validityPrepackaged Plan shall not be construed as an assumption of any implied terms, priorityimplied contract, or amount implied warranty under any circumstance, except as may be expressly agreed in writing by the Debtors or Reorganized Debtors and, any such rights, to the extent they exist as a matter of any Claims that may arise in connection therewithapplicable law, shall be deemed rejected and subject to Article V.B of this Prepackaged Plan. To the maximum extent permitted by lawLaw, to the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Prepackaged Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), then such provision shall be deemed modified such that the transactions contemplated by the Prepackaged Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. Notwithstanding anything to the contrary in the Prepackaged Plan, the Debtors or the Reorganized Debtors, as applicable, reserve the right to alter, amend, modify, or supplement the Rejected Executory Contracts and Unexpired Leases Schedule at any time up to forty-five (45) days after the Effective Date, so long as such allocation, amendment, modification, or supplement is consistent with the Restructuring Support Agreement.
Appears in 1 contract
Assumption and Rejection of Executory Contracts and Unexpired Leases. Each On the Effective Date, except as otherwise provided in Article V.H.1 and elsewhere herein, all Executory Contract Contracts or Unexpired Leases not otherwise assumed or rejected will be deemed assumed by the applicable Reorganized Debtor in accordance with the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code, other than those that are: (1) identified on the Rejected Executory Contracts and Unexpired Lease shall be deemed assumed, unless it is Leases Schedule; (2) previously expired or terminated pursuant to their own terms; (3) have been previously assumed or rejected by the Debtors pursuant to a Final Order; (4) are the subject of a motion to reject that is pending on the Effective Date Date; or has been rejected pursuant to (5) have an ordered or requested effective date of rejection that is after the Effective Date. Entry of the Confirmation Order shall constitute an order of the CourtBankruptcy Court approving the assumptions, without the need for any further notice to or action, orderassumptions and assignments, or approval rejections of the CourtExecutory Contracts or Unexpired Leases as set forth in the Plan, as of the Effective DateAssumed Executory Contract and Unexpired Leases Schedule, under or the Rejected Executory Contracts and Unexpired Leases Schedule, pursuant to sections 365 365(a) and 1123 of the Bankruptcy Code. The assumption Except as otherwise specifically set forth herein, assumptions or rejections of Executory Contracts and Unexpired Leases hereunder may include pursuant to the assignment of certain of such contracts to Affiliates. The Confirmation Order will constitute an order Plan are effective as of the Court approving the above-described assumptions and assignmentsEffective Date. Except as otherwise provided herein or agreed to by the Debtors and the applicable counterparty, each assumed Each Executory Contract or Unexpired Lease assumed pursuant to the Plan or by Bankruptcy Court order but not assigned to a third party before the Effective Date shall include all modificationsre-vest in and be fully enforceable by the applicable contracting Reorganized Debtor in accordance with its terms, amendmentsexcept as such terms may have been modified by the provisions of the Plan or any order of the Bankruptcy Court authorizing and providing for its assumption. Any motions to assume Executory Contracts or Unexpired Leases pending on the Effective Date shall be subject to approval by a Final Order on or after the Effective Date but may be withdrawn, supplements, restatementssettled, or other agreements related thereto, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests. Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed otherwise prosecuted by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease or the validity, priority, or amount of any Claims that may arise in connection therewithReorganized Debtors. To the maximum extent permitted by law, to the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), then such provision shall be deemed modified such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. Notwithstanding anything to the contrary in the Plan, the Debtors or the Reorganized Debtors, as applicable, reserve the right to alter, amend, modify, or supplement the Assumed Executory Contracts and Unexpired Leases Schedule and the Rejected Executory Contracts and Unexpired Leases Schedule at any time up to forty-five (45) days after the Effective Date, so long as such allocation, amendment, modification, or supplement is consistent with the Restructuring Support Agreement.
Appears in 1 contract
Samples: Restructuring Support Agreement (Jones Energy, Inc.)
Assumption and Rejection of Executory Contracts and Unexpired Leases. Each (a) On the Effective Date, all executory contracts and unexpired leases of the Debtors shall be assumed pursuant to the provisions of section 365 of the Bankruptcy Code, except: (i) any executory contracts and unexpired leases that are the subject of separate motions to reject filed pursuant to section 365 of the Bankruptcy Code by the Debtors before the Effective Date; (ii) any contracts and leases listed in any Schedule 2 attached to the Disclosure Statement and any subsequently filed “Schedule of Rejected Executory Contract Contracts and Unexpired Lease shall Leases” to be deemed assumedfiled by the Debtors with the Bankruptcy Court before the entry of, unless it or as an exhibit to, the Confirmation Order; (iii) all executory contracts and unexpired leases rejected under this Plan (including any schedule hereto) or by order of the Bankruptcy Court entered before the Effective Date; (iv) any executory contract or unexpired lease that is the subject of a dispute over the amount or manner of cure pursuant to the next section hereof and for which the Debtors make a motion to reject such contract or lease based upon the existence of such dispute filed at any time; and (v) any agreement, obligation, security interest, transaction or similar undertaking that the Debtors believe is not executory or a lease that is pending on later determined by the Effective Date Bankruptcy Court to be an executory contract or has been rejected pursuant unexpired lease that is subject to an order of the Court, without the need for any further notice to assumption or action, order, or approval of the Court, as of the Effective Date, rejection under sections section 365 and 1123 of the Bankruptcy Code.
(b) Inclusion of a contract, lease or other agreement on any Schedule 2 attached to the Disclosure Statement shall constitute adequate and sufficient notice that (i) any Claims arising thereunder or related thereto shall be treated as General Unsecured Claims under the Plan, and (ii) the Debtors are no longer bound by, or otherwise obligated to perform, any such obligations, transactions, or undertakings relating thereto or arising thereunder. The assumption inclusion of a contract, lease or other agreement in Section 11.1(a) or on Disclosure Statement Schedule 3 or the “Schedule of Assumed and Assumed and Assigned Executory Contracts and Unexpired Leases hereunder may include the assignment of certain of such contracts to Affiliates. The Confirmation Order will Leases” shall not constitute an order of the Court approving the above-described assumptions and assignments. Except as otherwise provided herein or agreed to admission by the Debtors and as to the applicable counterpartycharacterization of whether any such included contract, each assumed Executory Contract lease or Unexpired Lease shall include all modifications, amendments, supplements, restatementsother agreement is, or is not, an executory contract or unexpired lease or whether any claimants under any such contract, lease or other agreements related thereto, and agreement are time-barred from asserting Claims against the Debtors. The Debtors reserve all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights with respect to the characterization of first refusal, any such agreements.
(c) The Plan shall constitute a motion to reject such executory contracts and unexpired leases set forth in any Schedule 2 attached to the Disclosure Statement and any other interests. Modifications, amendments, supplements, and restatements to prepetition subsequently filed “Schedule of Rejected Executory Contracts and Unexpired Leases that have been executed Leases” to be filed by the Debtors during with the Chapter 11 Cases Bankruptcy Court before the entry of, or as an exhibit to, the Confirmation Order, and the Debtors shall not be deemed to alter have no liability thereunder except as is specifically provided in the prepetition nature Plan. Entry of the Executory Contract Confirmation Order by the Clerk of the Bankruptcy Court shall constitute approval of such rejections pursuant to section 365(a) of the Bankruptcy Code and a finding by the Bankruptcy Court that each such rejected agreement, executory contract or Unexpired Lease unexpired lease is burdensome and that the rejection thereof is in the best interests of the Debtors and their Estates.
(d) The Plan shall constitute a motion to assume or the validity, priority, or amount of any Claims that may arise in connection therewith. To the maximum extent permitted by law, to the extent any provision in any Executory Contract or Unexpired Lease assume and assign such executory contracts and unexpired leases assumed or assumed and assigned pursuant to Section 11.1(a) and the Plan restricts Debtors shall have no liability thereunder for any breach of any assumed and assigned executory contract or preventslease occurring after such assignment pursuant to section 365(k) of the Bankruptcy Code, except as is specifically provided in the Plan. Entry of the Confirmation Order by the Clerk of the Bankruptcy Court shall constitute approval of such assumption or purports assumption and assignment pursuant to restrict sections 365(a), (b) and (f) of the Bankruptcy Code, and a finding by the Bankruptcy Court that the requirements of section 365(f) of the Bankruptcy Code have been satisfied. Any non-Debtor counterparty to an agreement listed on Schedule 3 or preventthe “Schedule of Assumed and Assumed and Assigned Executory Contracts and Unexpired Leases,” or otherwise designated as being assumed in Section 11.1(a), who disputes the assumption and/or assignment of an executory contract or is breached or unexpired lease must file with the Bankruptcy Court, and serve upon the Debtors and any Committee, a written objection to the assumption and/or assignment, which objection shall set forth the basis for the dispute by no later than ten (10) Business Days prior to the Confirmation Hearing. The failure to timely object shall be deemed breached by, a waiver of any and all objections to the assumption or assumption and assignment of such executory contracts and leases as set forth in Schedule 3 or the “Schedule of Assumed and Assumed and Assigned Executory Contract Contracts and Unexpired Leases” or Unexpired Lease (including any “change of control” provisionas otherwise designated as being assumed in Section 11.1(a), then such provision shall be deemed modified such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto.
Appears in 1 contract
Samples: Restructuring Plan Support Agreement (Gsi Group Inc)
Assumption and Rejection of Executory Contracts and Unexpired Leases. Each Executory Contract and Unexpired Lease shall be deemed assumed, unless it is the subject of a motion to reject that is pending on the Effective Date or has been rejected pursuant to an order of the Court, without the need for any further notice to or action, order, or approval of the Court, as of the Plan Effective Date, Date under sections section 365 and 1123 of the Bankruptcy Code. The assumption of , other than: (a) those that (1) are identified on the Rejected Executory Contracts and Unexpired Leases hereunder may include Lease Schedule, (2) were previously expired or terminated pursuant to their own terms, (3) have been previously assumed or rejected by the assignment Debtors pursuant to a Final Order, (4) are the subject of certain a motion to reject that is pending on the Plan Effective Date, or (5) have an ordered or requested effective date of rejection that is after the Plan Effective Date; and (b) the Tax Receivable Agreement, which shall be cancelled and deemed rejected and, for the avoidance of doubt, any rejection damages arising out of such contracts to Affiliatesrejection shall be treated as TRA Claims. The Entry of the Confirmation Order will shall constitute an order of the Court approving the above-described assumptions, assumptions and assignments, or rejections of the Executory Contracts or Unexpired Leases as set forth in the Plan, the Rejected Executory Contracts and Unexpired Leases Schedule, as applicable, pursuant to sections 365(a) and 1123 of the Bankruptcy Code. Except as otherwise specifically set forth herein, assumptions or rejections of Executory Contracts and Unexpired Leases pursuant to the Plan are effective as of the Plan Effective Date. Except as otherwise provided herein or agreed to by in the Debtors and the applicable counterpartyConfirmation Order, each assumed Executory Contract or Unexpired Lease assumed pursuant to the Plan or by Court order but not assigned to a third party before the Plan Effective Date shall include all modificationsre-vest in and be fully enforceable by the applicable contracting Reorganized Debtor in accordance with its terms except as such terms may have been modified by the provisions of the Plan or any order of the Court authorizing and providing for its assumption. Any motions to assume Executory Contracts or Unexpired Leases pending on the Plan Effective Date shall be subject to approval by a Final Order on or after the Plan Effective Date but may be withdrawn, amendments, supplements, restatementssettled, or other agreements related thereto, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests. Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed otherwise prosecuted by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease or the validity, priority, or amount of any Claims that may arise in connection therewithReorganized Debtors. To the maximum extent permitted by law, to the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), then such provision shall be deemed modified such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. Notwithstanding anything to the contrary in the Plan, the Debtors or the Reorganized Debtors, as applicable, reserve the right to alter, amend, modify, or supplement the Rejected Executory Contracts and Unexpired Leases Schedule at any time up to thirty (30) days after the Plan Effective Date, so long as such allocation, amendment, modification, or supplement is consistent with the Restructuring Support Agreement and the consent rights set forth therein.
Appears in 1 contract
Samples: Restructuring Support Agreement (QualTek Services Inc.)
Assumption and Rejection of Executory Contracts and Unexpired Leases. Each On the Effective Date, except as otherwise provided in Article V.H.1 and elsewhere herein, all Executory Contract and Contracts or Unexpired Lease shall Leases not otherwise assumed or rejected will be deemed assumed, unless it is assumed by the subject of a motion to reject that is pending on the Effective Date or has been rejected pursuant to an order of the Court, applicable Reorganized Debtor without the need for any further notice to or action, order, or approval of the Bankruptcy Court, as of the Effective Date, under in accordance with the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code, other than those Executory Contracts and Unexpired Leases that: (1) are identified on the Rejected Executory Contracts and Unexpired Leases Schedule; (2) previously expired or terminated pursuant to their own terms; (3) have been previously assumed or rejected by the Debtors pursuant to a Final Order; (4) are the subject of a motion to reject that is pending on the Effective Date; or (5) have an ordered or requested effective date of rejection that is after the Effective Date. The assumption Entry of the Confirmation Order shall constitute an order of the Bankruptcy Court approving the assumptions, assumptions and assignments, or rejections of the Executory Contracts or Unexpired Leases as set forth in the Plan or the Rejected Executory Contracts and Unexpired Leases Schedule, pursuant to sections 365(a) and 1123 of the Bankruptcy Code. Except as otherwise specifically set forth herein, assumptions or rejections of Executory Contracts and Unexpired Leases hereunder may include pursuant to the assignment of certain of such contracts to Affiliates. The Confirmation Order will constitute an order Plan are effective as of the Court approving the above-described assumptions and assignmentsEffective Date. Except as otherwise provided herein or agreed to by the Debtors and the applicable counterparty, each assumed Each Executory Contract or Unexpired Lease assumed pursuant to the Plan or by the Bankruptcy Court order but not assigned to a third party before the Effective Date shall include all modificationsre-vest in and be fully enforceable by the applicable contracting Reorganized Debtor in accordance with its terms, amendmentsexcept as such terms may have been modified by the provisions of the Plan or any order of the Bankruptcy Court authorizing and providing for its assumption. Any motions to assume Executory Contracts or Unexpired Leases pending on the Effective Date shall be subject to approval by a Final Order on or after the Effective Date, supplementsbut may be withdrawn, restatementssettled, or other agreements related thereto, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests. Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed otherwise prosecuted by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease or the validity, priority, or amount of any Claims that may arise in connection therewithReorganized Debtors. To the maximum extent permitted by law, to the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), then such provision shall be deemed modified such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto.
Appears in 1 contract
Samples: Restructuring Support Agreement (5E Advanced Materials, Inc.)
Assumption and Rejection of Executory Contracts and Unexpired Leases. Each Executory Contract and Unexpired Lease shall be deemed assumed, unless it is the subject of a motion to reject that is pending on the Effective Date or has been rejected pursuant to an order of the Court, without the need for any further notice to or action, order, or approval of the Court, as of On the Effective Date, under except as otherwise provided herein, all Executory Contracts or Unexpired Leases not otherwise assumed or rejected will be deemed assumed by the applicable Reorganized Debtor pursuant to sections 365 and 1123 of the Bankruptcy Code, other than those Executory Contracts and Unexpired Leases that (i) are identified on the Rejected Executory Contracts and Unexpired Leases Schedule; (ii) have been previously rejected by a Final Order; (iii) have been previously assumed or assumed and assigned by a Final Order; (iv) are the subject of a motion to reject Executory Contracts or Unexpired Leases that is pending on the Confirmation Date; (v) which the Debtors have, as of the Confirmation Date, received authority to reject pursuant to an order of the Bankruptcy Court with the effective date of such rejection is after the Effective Date; (vi) provide for payment of severance or other benefits to former employees of the Debtors (other than retiree benefits within the meaning of such term in section 1114(a) of the Bankruptcy Code), whether in the form of a plan or individual agreement; and (vii) are solely with a Donlen Debtor, which to the extent not previously assumed by a Final Order shall be deemed to be rejected; provided, that, nothing in the Plan or Confirmation Order shall constitute an admission or finding that any plan or agreement referenced in the immediately preceding clauses constitutes an Executory Contract; and provided further, that the Debtors reserve the right to seek enforcement of or other relief with respect to an assumed or assumed and assigned Executory Contract or Unexpired Lease following the Confirmation Date, including but not limited to seeking an order of the Bankruptcy Court for the rejection of such Executory Contract or Unexpired Lease for cause. The terms of any Final Order entered by the Bankruptcy Court prior to the entrance of the Confirmation Order that provide for the assumption and assignment of nonresidential real property shall control over the terms of the Plan and Confirmation Order. Entry of the Confirmation Order shall constitute an order of the Bankruptcy Court approving the assumptions and rejections of such Executory Contracts or Unexpired Leases as set forth in the Plan, the Assumed Executory Contracts and Unexpired Leases Schedule, the Collective Bargaining Agreements, and the Rejected Executory Contracts and Unexpired Leases Schedule, pursuant to sections 365(a) and 1123 of the Bankruptcy Code. Except as otherwise specifically set forth herein, assumptions or rejections of Executory Contracts and Unexpired Leases hereunder may include pursuant to the assignment Plan are effective as of certain of such contracts to Affiliatesthe Effective Date. The Confirmation Order will constitute an order Debtors are authorized to abandon any of the Court approving Debtors’ personal property at or on the above-described assumptions and assignments. Except as otherwise provided herein or agreed leased premises subject to by an Unexpired Lease rejected pursuant to the Debtors Plan, and the counterparties to rejected leases may dispose of any such personal property remaining at or on the leased premises following the applicable counterparty, each assumed lease rejection date. Each Executory Contract or Unexpired Lease assumed pursuant to the Plan or by Bankruptcy Court order but not assigned to a third party before the Effective Date shall include all modificationsre-vest in and be fully enforceable by the applicable contracting Reorganized Debtor in accordance with its terms, amendmentsexcept as such terms may have been modified by any order of the Bankruptcy Court authorizing and providing for its assumption under applicable federal law (in each case, supplements, restatements, or other agreements related thereto, and all rights related thereto, if anyin accordance with applicable law, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests. Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature consent of the counterparty to such Executory Contract or Unexpired Lease Lease). Subject to applicable law, including section 365(d)(4) of the Bankruptcy Code, any motions to assume Executory Contracts or Unexpired Leases pending on the validityEffective Date shall be subject to approval by a Final Order of the Bankruptcy Court on or after the Effective Date but may be withdrawn, prioritysettled, or amount otherwise prosecuted by the Reorganized Debtors, with any such disposition to be deemed to effect an assumption, assumption and assignment, or rejection, as applicable, as of any Claims that may arise in connection therewiththe Effective Date. To the maximum extent permitted by law, to the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts restricts, conditions or prevents, or purports to restrict restrict, condition or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “anti-assignment,” “change of control,” consent right, or similar provision), then such provision shall be deemed modified such that the transactions transaction contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. The consummation of the Plan and the implementation of the Restructuring Transactions are not intended to, and shall not, constitute a “change of control,” “change in control,” or other similar event under any lease, contract, or agreement to which a Debtor is a party.
Appears in 1 contract
Samples: Plan Support Agreement (Hertz Corp)
Assumption and Rejection of Executory Contracts and Unexpired Leases. Each On and effective as of the Closing Date, all executory contracts and unexpired leases of the Debtor (including any amendments, revisions or modifications thereto) will be assumed, excluding (a) any and all executory contracts and unexpired leases which are listed on any "Schedule of Rejected Executory Contract Contracts" filed by the Debtor before the conclusion of the Confirmation Hearing, all of which contracts and Unexpired Lease leases shall be deemed assumedrejected on the Closing Date, unless it is (b) any and all such contracts and leases rejected by order of the Bankruptcy Court by the Closing Date and (c) any and all such contracts and leases which are the subject of a any motion to reject that is pending on the Effective Confirmation Date that is ultimately granted by Final Order. The Debtor shall obtain the approval of Centex before filing any "Schedule of Rejected Executory Contracts" or has been rejected any motion to reject an executory contract or unexpired lease, which approval may be withheld if, in the reasonable judgment of Centex, the effect of such Schedule or motion is or would likely be unfavorable to Centex or Reorganized NAB. Entry of the Confirmation Order by the Bankruptcy Court shall constitute approval of such assumptions and rejections pursuant to an order of the Court, without the need for any further notice to or action, order, or approval of the Court, as of the Effective Date, under sections 365 365(a) and 1123 of the Bankruptcy Code. The assumption of Without limiting the foregoing, the Stock Purchase Agreement shall be assumed under the Plan on the Closing Date. Executory Contracts contracts and Unexpired Leases hereunder may include leases entered into after the assignment of certain of such contracts to Affiliates. The Confirmation Order Petition Date will constitute an order of the Court approving the above-described assumptions and assignments. Except as otherwise provided herein or agreed to be performed by the Debtors and Debtor or Reorganized NAB in the applicable counterparty, each assumed Executory Contract or Unexpired Lease shall include all modifications, amendments, supplements, restatements, or other agreements related thereto, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights ordinary course of first refusal, and any other interests. Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease or the validity, priority, or amount of any Claims that may arise in connection therewith. To the maximum extent permitted by law, to the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), then such provision shall be deemed modified such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect theretobusiness.
Appears in 1 contract
Assumption and Rejection of Executory Contracts and Unexpired Leases. Each On the Effective Date, except as otherwise provided herein, each Executory Contract or Unexpired Lease, not previously assumed, assumed and Unexpired Lease assigned, or rejected shall be deemed automatically assumed, pursuant to sections 365 and 1123 of the Bankruptcy Code, unless it such Executory Contract or Unexpired Lease: (1) is identified on the Schedule of Rejected Executory Contracts and Unexpired Leases; (2) is the subject of a motion to reject such Executory Contracts or Unexpired Leases that is pending on the Effective Date Confirmation Date; or has been rejected pursuant to an order (3) is a contract, release, or other agreement or document entered into in connection with the Plan. Entry of the CourtConfirmation Order by the Bankruptcy Court shall, without subject to and upon the need for any further notice to or action, order, or approval of the Court, as occurrence of the Effective Date, under sections 365 and 1123 constitute a Bankruptcy Order approving the assumptions or rejections of the Bankruptcy Code. The assumption of Executory Contracts and Unexpired Leases hereunder may include assumed or rejected pursuant to the assignment Plan. Any motions to assume Executory Contracts or Unexpired Leases pending on the Effective Date shall be subject to approval by the Bankruptcy Court on or after the Effective Date by a Final Order. Each Executory Contract and Unexpired Lease assumed pursuant to this Article V.A of certain of such contracts to Affiliates. The Confirmation Order will constitute an the Plan or by any order of the Court approving Bankruptcy Court, which has not been assigned to a third party prior to the above-described assumptions Confirmation Date, shall revest in and assignments. Except as otherwise provided herein or agreed to be fully enforceable by the Debtors Reorganized Debtor in accordance with its terms, except as such terms are modified by the provisions of the Plan or any order of the Bankruptcy Court authorizing and providing for its assumption under applicable federal law. Notwithstanding anything to the contrary in the Plan, the Debtor or the Reorganized Debtor, as applicable, reserve the right to, with the reasonable consent of Leucadia and the applicable counterpartyRequired Consenting Noteholders, each assumed Executory Contract or Unexpired Lease shall include all modificationsalter, amendmentsamend, supplements, restatementsmodify, or other agreements related thereto, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights supplement the Schedule of first refusal, and any other interests. Modifications, amendments, supplements, and restatements to prepetition Rejected Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed (i) to alter the prepetition nature of the Executory Contract add or Unexpired Lease or the validity, priority, or amount of any Claims that may arise in connection therewith. To the maximum extent permitted by law, to the extent any provision in remove any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts or preventsSchedule of Rejected Executory Contracts and Unexpired Leases at any time prior to the Confirmation Date, or purports and (ii) to restrict or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such remove any Executory Contract or Unexpired Lease (from the Schedule of Rejected Executory Contracts and Unexpired Leases at any time through and including the Confirmation Date. The Debtor or the Reorganized Debtor shall provide notice of any “change amendments to the Schedule of control” provision), then such provision shall be deemed modified such that Rejected Executory Contracts and Unexpired Leases to the transactions contemplated by parties to the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract Contracts or Unexpired Lease or to exercise any other default-related rights with respect theretoLeases affected thereby.
Appears in 1 contract
Samples: Restructuring Support Agreement (Global Brokerage, Inc.)
Assumption and Rejection of Executory Contracts and Unexpired Leases. Each On the Effective Date, except as otherwise provided herein, each Executory Contract and Unexpired Lease shall be deemed not previously rejected, assumed, unless it is the subject of a motion to reject that is pending on the Effective Date or has been rejected assumed and assigned pursuant to an order of the CourtBankruptcy Court shall be deemed assumed, without the need for any further notice to or action, order, or approval of the Bankruptcy Court, as of the Effective Date, under pursuant to sections 365 and 1123 of the Bankruptcy Code except any Executory Contract or Unexpired Lease (i) identified on the Schedule of Rejected Executory Contracts and Unexpired Leases (which shall initially be Filed with the Bankruptcy Court) as an Executory Contract or Unexpired Lease to be rejected, (ii) that is the subject of a separate motion or notice to reject pending as of the Effective Date, or (iii) that previously expired or terminated pursuant to its own terms (disregarding any terms the effect of which is invalidated by the Bankruptcy Code). The assumption of Executory Contracts and Unexpired Leases hereunder may include the assignment of certain of such contracts to Affiliates. The Confirmation Combined Order will constitute an order of the Bankruptcy Court approving the above-described assumptions and assignments, all pursuant to sections 365(a) and 1123 of the Bankruptcy Code and effective on the occurrence of the Effective Date; provided that, on the occurrence of the Effective Date, the Restructuring Support Agreement will terminate in accordance with its terms. Each Executory Contract and Unexpired Lease assumed pursuant to this Plan or by Bankruptcy Court order, and not assigned to a third party on or prior to the Effective Date, shall re-vest in and be fully enforceable by the applicable Reorganized Debtor in accordance with its terms, except as such terms may have been modified by order of the Bankruptcy Court. Except as otherwise provided herein or agreed to by the Debtors and the applicable counterparty, each assumed Executory Contract or Unexpired Lease shall include all modifications, amendments, supplements, restatements, or other agreements related theretothat in any manner affect such Executory Contract or Unexpired Lease, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests. Modifications, amendments, supplements, and restatements to Executory Contracts and Unexpired Leases that have been executed by the Debtors during these Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease, or the validity, priority, or amount of any Claims that may arise in connection therewith. Except as set forth in Article V.H., to the extent any provision in any Executory Contract or Unexpired Lease assumed pursuant to this Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption of such Executory Contract or Unexpired Lease (including any “change of control” provision), then such provision shall be deemed modified such that the transactions contemplated by this Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the these Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease or the validity, priority, or amount of any Claims that may arise in connection therewith. To Notwithstanding anything to the maximum extent contrary in this Plan, the Debtors or the Reorganized Debtors, as applicable, reserve the right to amend or supplement the Schedule of Rejected Executory Contracts and Unexpired Leases in their discretion prior to the Effective Date (or such later date as may be permitted by lawthis Plan), provided that the Debtors shall give prompt notice of any such amendment or supplement to any affected counterparty and such counterparty shall have no less than seven (7) days to object thereto on any grounds. In the extent event the Debtor reject any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached byLease, the assumption Debtors are authorized to abandon or assumption and assignment dispose of such Executory Contract any remaining property at or Unexpired Lease (including any “change of control” provision), then such provision shall be deemed modified such that on the transactions contemplated by subject premises on the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect theretoapplicable lease rejection effective date.
Appears in 1 contract
Assumption and Rejection of Executory Contracts and Unexpired Leases. Each Except as otherwise provided herein, each Executory Contract and Unexpired Lease shall be deemed assumed, unless it is the subject of a motion to reject that is pending on the Effective Date or has been rejected pursuant to an order of the Court, without the need for any further notice to or action, order, or approval of the Bankruptcy Court, as of the Effective Date, under sections 365 pursuant to Bankruptcy Code section 365, unless such Executory Contract or Unexpired Lease (a) was previously assumed or rejected; (b) expired or was previously terminated pursuant to its own terms; (c) is the subject of a motion to assume or assume and 1123 assign Filed on or before the Confirmation Date; or (d) is designated specifically, or by category, as an Executory Contract or Unexpired Lease on the Schedule of the Bankruptcy CodeRejected Executory Contracts and Unexpired Leases. The assumption of Executory Contracts and Unexpired Leases hereunder may include the assignment of certain of such contracts to Affiliatesdirect or indirect non-Debtor subsidiaries of the Debtors. The Confirmation Order will constitute an order of the Bankruptcy Court approving the above-described assumptions and assignments, all pursuant to Bankruptcy Code sections 365(a) and 1123 and effective on the occurrence of the Effective Date. Except as otherwise provided herein or agreed to by the Debtors and the applicable counterparty, each assumed Executory Contract or Unexpired Lease shall include all modifications, amendments, supplements, restatements, or other agreements related thereto, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests. Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease or the validity, priority, or amount of any Claims that may arise in connection therewith. To the maximum extent permitted by law, to the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), then such provision shall be deemed modified such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease or the validity, priority, or amount of any prepetition Claims that may arise in connection therewith.
Appears in 1 contract
Samples: Restructuring Support Agreement (Martin Midstream Partners L.P.)
Assumption and Rejection of Executory Contracts and Unexpired Leases. Each 1. Rejection of EFH Debtor and EFIH Debtor Executory Contract Contracts and Unexpired Lease shall be deemed assumedLeases On the EFH Effective Date, unless it is except as otherwise provided herein or in the subject Confirmation Order, all Executory Contracts or Unexpired Leases of a motion to reject that is pending on the Effective Date EFH Debtors or has been the EFIH Debtors, not previously assumed or rejected pursuant to an order of the Bankruptcy Court, without including the need for any further notice TCEH Confirmation Order or the EFH Confirmation Order, will be deemed to be Rejected Executory Contracts or actionUnexpired Leases, order, or approval in accordance with the provisions and requirements of the Court, as of the Effective Date, under sections 365 and 1123 of the Bankruptcy Code, other than those Executory Contracts or Unexpired Leases that are: (1) identified on the EFH/EFIH Assumed Executory Contract and Unexpired Lease List; (2) the subject of a motion to assume Executory Contracts or Unexpired Leases that is pending on the Confirmation Date; or (3) subject to a motion to reject an Executory Contract or Unexpired Lease pursuant to which the requested effective date of such rejection is after the Effective Date; provided that each of (1), (2) and (3) must be in form and substance acceptable to the Plan Sponsor. Entry of the EFH Confirmation Order by the Bankruptcy Court shall constitute approval of such rejections and the assignments and/or assumptions of the Executory Contracts or Unexpired Leases listed on the EFH/EFIH Assumed Executory Contract and Unexpired Lease List pursuant to sections 365(a) and 1123 of the Bankruptcy Code. Any motions to assume Executory Contracts or Unexpired Leases of the EFH Debtors or EFIH Debtors pending on the EFH Effective Date shall be subject to approval by the Bankruptcy Court on or after the Effective Date by a Final Order. Each Executory Contract and Unexpired Lease assumed pursuant to this Article V.A.1 or by any order of the Bankruptcy Court, which has not been assigned to a third party before the Confirmation Date, shall revest in and be fully enforceable by Reorganized EFH or Reorganize EFIH, as applicable, or their successors in accordance with its terms, except as such terms are modified by the Plan or any order of the Bankruptcy Court authorizing and providing for its assumption under applicable federal law. The assumption Plan Sponsor, Reorganized EFH, and Reorganized EFIH, as applicable, reserve the right to alter, amend, modify, or supplement the EFH/EFIH Assumed Executory Contract and Unexpired Lease List and the schedules of Executory Contracts and Unexpired Leases hereunder may include with respect to EFH, Reorganized EFH, EFIH, and Reorganized EFIH at any time through and including 45 days after the assignment Effective Date, without incurrence of certain any penalty or changing the priority or security of any Claim as a result of such contracts treatment change. For the avoidance of doubt, and notwithstanding anything herein to Affiliatesthe contrary, the Tax Matters Agreement, the Transition Services Agreement, and the Separation Agreement, to the extent in the form attached to the Merger Agreement or as amended or modified in accordance with their respective terms and with the consent of the Plan Sponsor, shall be EFH/EFIH Assumed Executory Contracts or Unexpired Leases.
2. The Confirmation Order will constitute Assumption of TCEH Debtor Executory Contracts and Unexpired Leases. On the TCEH Effective Date, except as otherwise provided herein, all TCEH Executory Contracts or Unexpired Leases of the TCEH Debtors, not previously assumed or rejected pursuant to an order of the Court approving Bankruptcy Court, will be deemed to be TCEH Assumed Executory Contracts or Unexpired Leases, in accordance with the above-described assumptions provisions and assignments. Except as otherwise provided herein requirements of sections 365 and 1123 of the Bankruptcy Code, other than those Executory Contracts or agreed to Unexpired Leases that: (1) previously were assumed or rejected by the Debtors Debtors; (2) are identified on the TCEH Rejected Executory Contract and Unexpired Lease List; (3) are the applicable counterparty, each assumed subject of a motion to reject TCEH Executory Contracts or Unexpired Leases that is pending on the Confirmation Date; or (4) are subject to a motion to reject a TCEH Executory Contract or Unexpired Lease pursuant to which the requested effective date of such rejection is after the Effective Date; provided that each of (2), (3) and (4) must be in form and substance reasonably acceptable to the TCEH Supporting First Lien Creditors. Entry of the Confirmation Order by the Bankruptcy Court shall include all modificationsconstitute approval of such assignments and/or assumptions and the rejection of the Executory Contracts or Unexpired Leases listed on the Rejected Executory Contract and Unexpired Lease List pursuant to sections 365(a) and 1123 of the Bankruptcy Code. Any motions to assume Executory Contracts or Unexpired Leases pending on the Effective Date shall be subject to approval by the Bankruptcy Court on or after the Effective Date by a Final Order. Each Executory Contract and Unexpired Lease assumed pursuant to this Article V.A.2 or by any order of the Bankruptcy Court, amendmentswhich has not been assigned to a third party before the Confirmation Date, supplementsshall revest in and be fully enforceable by the Reorganized TCEH Debtors in accordance with its terms, restatementsexcept as such terms are modified by the Plan or any order of the Bankruptcy Court authorizing and providing for its assumption under applicable federal law. Notwithstanding anything this Article V.A.2 to the contrary, the Employment Agreements, the New Employee Agreements/Arrangements, and the Executive Severance Policy shall be deemed to be entered into or assumed and/or assigned (as applicable) to Reorganized TCEH on the TCEH Effective Date, and Reorganized TCEH shall be responsible for any cure costs arising from or related to the assumption of such Employment Agreement or Executive Severance Policy; provided that, for the avoidance of doubt, in the event any party to an Employment Agreement and the Reorganized EFH Debtors or Reorganized EFIH Debtors mutually agree that such party’s Employment Agreement shall be assumed by Reorganized EFH or Reorganized EFIH and not assigned to Reorganized TCEH, the consent of the Plan Sponsor shall be required with respect to such assumption and the Reorganized EFH Debtors and Reorganized EFIH Debtors, as applicable, shall be responsible for any cure costs arising from or related to the assumption of such Employment Agreements. Additionally, notwithstanding anything to the contrary in the Plan, the Plan Supplement, the Executive Severance Policy, or other agreements related theretoany Employment Agreement, the occurrence of the TCEH Effective Date shall be deemed to constitute a “change in control” under the Executive Severance Policy and all rights related theretoeach Employment Agreement. On the TCEH Effective Date, if anyReorganized TCEH shall execute a written agreement (in a form reasonably acceptable to the TCEH Supporting First Lien Creditors) with each employee who is party to an Employment Agreement acknowledging that the transactions consummated upon the occurrence of the TCEH Effective Date shall constitute a “change in control” under such employee’s Employment Agreement. The Debtors or the Reorganized Debtors, including all easementsas applicable, licenseswith the reasonable consent of the Plan Sponsor and the TCEH Supporting First Lien Creditors, permitsreserve the right to alter, rightsamend, privilegesmodify, immunities, options, rights or supplement the schedules of first refusal, and any other interests. Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by with respect to such Debtors and Reorganized Debtors at any time through and including 45 days after the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease or the validityEffective Date, priority, or amount without incurrence of any Claims that may arise in connection therewithpenalty or changing the priority or security of any Claim as a result of such treatment change. To For the maximum extent permitted by lawavoidance of doubt, and notwithstanding anything herein to the contrary, the Tax Matters Agreement, Transition Services Agreement, Separation Agreement, and Amended and Restated Split Participant Agreement, to the extent any provision in any the form attached to the Merger Agreement or as amended or modified in accordance with their respective terms and with the consent of the Plan Sponsor, shall be TCEH Assumed Executory Contract Contracts or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), then such provision shall be deemed modified such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect theretoLeases.
Appears in 1 contract
Samples: Merger Agreement (Energy Future Intermediate Holding CO LLC)
Assumption and Rejection of Executory Contracts and Unexpired Leases. Each On the Effective Date, except as otherwise provided in Article V.H.1 and elsewhere herein, all Executory Contract Contracts or Unexpired Leases not otherwise assumed or rejected (to the extent applicable) will be deemed assumed by the applicable Reorganized Debtor in accordance with the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code, other than those that are: (1) identified on the Rejected Executory Contracts and Unexpired Lease shall be deemed assumed, unless it is Leases Schedule (if any); (2) previously expired or terminated pursuant to their own terms; (3) have been previously assumed or rejected (to the extent applicable) by the Debtors pursuant to a Final Order; (4) are the subject of a motion to reject that is pending on the Effective Date Date; or has been rejected pursuant to (5) have an ordered or requested effective date of rejection that is after the Effective Date. Entry of the Confirmation Order shall constitute an order of the CourtBankruptcy Court approving the assumptions, without the need for any further notice to or actionassumptions and assignments, orderand related Cure amounts with respect thereto, or approval rejections (to the extent applicable) of the CourtExecutory Contracts or Unexpired Leases as set forth in the Plan or the Schedule of Proposed Cure Amounts or the Rejected Executory Contracts and Unexpired Leases Schedule (if any), as of the Effective Date, under pursuant to sections 365 365(a) and 1123 of the Bankruptcy Code. The assumption Except as otherwise specifically set forth herein or in the Plan Supplement, assumptions or rejections (to the extent applicable) of Executory Contracts and Unexpired Leases hereunder pursuant to the Plan are effective as of the Effective Date. Each Executory Contract or Unexpired Lease assumed pursuant to the Plan or by Bankruptcy Court order but not assigned to a third party before the Effective Date shall re-vest in and be fully enforceable by the applicable contracting Reorganized Debtor in accordance with its terms, except as such terms may include have been modified by the assignment provisions of certain of such contracts to Affiliates. The Confirmation Order will constitute an the Plan or any order of the Bankruptcy Court approving authorizing and providing for its assumption. Any motions to assume Executory Contracts or Unexpired Leases pending on the above-described assumptions and assignmentsEffective Date shall be subject to approval by a Final Order on or after the Effective Date but may be withdrawn, settled, or otherwise prosecuted by the Reorganized Debtors. Except as otherwise provided herein or agreed to by the Debtors (with the consent of the Required Consenting Stakeholders, which consent shall not be unreasonably withheld) and the applicable counterparty, each assumed Executory Contract or Unexpired Lease shall include all modifications, amendments, supplements, restatements, or other agreements related thereto, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests. Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease or the validity, priority, or amount of any Claims that may arise in connection therewith. To the maximum extent permitted by law, to the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), then such provision shall be deemed modified such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. Notwithstanding anything to the contrary in the Plan, the Debtors or the Reorganized Debtors, as applicable, reserve the right to alter, amend, modify, or supplement the Rejected Executory Contracts and Unexpired Leases Schedule (if any) or Schedule of Proposed Cure Amounts, with the consent of the Required Consenting Stakeholders (which consent shall not be unreasonably withheld) at any time up to forty-five (45) days after the Effective Date. The Debtors or the Reorganized Debtors, as applicable, shall file with the Bankruptcy Court and serve on the applicable counterparty notice regarding any change to the Rejected Executory Contracts and Unexpired Leases Schedule (if any) or the Schedule of Proposed Cure Amounts, as applicable, and the counterparty shall have fourteen (14) days from service of such notice to file an objection with the Bankruptcy Court. To the extent any provision of the Bankruptcy Code or the Bankruptcy Rules requires the Debtors to assume or reject an Executory Contract or Unexpired Lease, such requirement shall be satisfied if the Debtors make an election to assume or reject such Executory Contract or Unexpired Lease prior to the deadline set forth by the Bankruptcy Code or the Bankruptcy Rules, as applicable, regardless of whether or not the Bankruptcy Court has actually ruled on such proposed assumption or rejection prior to such deadline. If certain, but not all, of a contract counterparty’s Executory Contracts or Unexpired Leases are assumed pursuant to the Plan, the Confirmation Order shall be a determination that such counterparty’s Executory Contracts or Unexpired Leases that are being rejected pursuant to the Plan are severable agreements that are not integrated with those Executory Contracts and/or Unexpired Leases that are being assumed pursuant to the Plan. Parties seeking to contest this finding with respect to their Executory Contracts and/or Unexpired Leases must file a timely objection to the Plan on the grounds that their agreements are integrated and not severable, and any such dispute shall be resolved by the Bankruptcy Court at the Confirmation Hearing (to the extent not resolved by the parties prior to the Confirmation Hearing).
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Assumption and Rejection of Executory Contracts and Unexpired Leases. Each On the Effective Date, except as otherwise provided in Article V.I.1 and elsewhere herein, all Executory Contract Contracts or Unexpired Leases not otherwise assumed or rejected will be deemed assumed by the applicable Reorganized Debtor in accordance with the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code, other than those that are: (1) identified on the Rejected Executory Contracts and Unexpired Lease shall be deemed assumed, unless it is Leases Schedule; (2) previously expired or terminated pursuant to their own terms; (3) have been previously assumed or rejected by the Debtors pursuant to a Final Order; (4) are the subject of a motion to reject that is pending on the Effective Date Date; or has been rejected pursuant to (5) have an order ordered or requested effective date of the Court, without the need for any further notice to or action, order, or approval of the Court, as of rejection that is after the Effective Date, under sections 365 provided that notwithstanding anything to the contrary herein, no Executory Contract or Unexpired Lease shall be assumed, assumed and 1123 assigned, or rejected without the written consent of the Bankruptcy CodeRequired Consenting Second Lien Noteholders (such consent not to be unreasonably withheld); provided that approval of the Assumed Executory Contracts and Unexpired Leases Schedule and the Rejected Executory Contracts and Unexpired Leases Schedule shall be sufficient consent with respect to the Executory Contracts and Unexpired Leases listed therein. The assumption of Executory Contracts and Unexpired Leases hereunder may include the assignment of certain of such contracts to Affiliates. The Entry of the Confirmation Order will shall constitute an order of the Bankruptcy Court approving the above-described assumptions, assumptions and assignments, or rejections of the Executory Contracts or Unexpired Leases as set forth in the Plan, the Assumed Executory Contract and Unexpired Leases Schedule, or the Rejected Executory Contracts and Unexpired Leases Schedule, pursuant to sections 365(a) and 1123 of the Bankruptcy Code. Except as otherwise specifically set forth herein, assumptions or rejections of Executory Contracts and Unexpired Leases pursuant to the Plan are effective as of the Effective Date. Each Executory Contract or Unexpired Lease assumed pursuant to the Plan or by Bankruptcy Court order but not assigned to a third party before the Effective Date shall re-vest in and be fully enforceable by the applicable contracting Reorganized Debtor in accordance with its terms, except as such terms may have been modified by the provisions of the Plan or any order of the Bankruptcy Court authorizing and providing for its assumption. Any motions to assume Executory Contracts or Unexpired Leases pending on the Effective Date shall be subject to approval by a Final Order on or after the Effective Date but may be withdrawn, settled, or otherwise prosecuted by the Reorganized Debtors. Except as otherwise provided herein or agreed to by the Debtors and the applicable counterparty, each assumed Executory Contract or Unexpired Lease shall include all modifications, amendments, supplements, restatements, or other agreements related thereto, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests. Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease or the validity, priority, or amount of any Claims that may arise in connection therewith. To the maximum extent permitted by lawLaw, to the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), then such provision shall be deemed modified such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. If certain, but not all, of a non-Debtor counterparty’s Executory Contracts or Unexpired Leases are assumed pursuant to the Plan, the Confirmation Order shall be a determination that such counterparty’s Executory Contracts and/or Unexpired Leases that are being rejected pursuant to the Plan are severable agreements that are not integrated with those Executory Contracts and/or Unexpired Leases that are being assumed pursuant to the Plan. Parties seeking to contest this finding with respect to their Executory Contracts or Unexpired Leases must file a timely objection to the Plan on the grounds that their agreements are integrated and not severable, and any such dispute shall be resolved by the Bankruptcy Court at the Confirmation Hearing (to the extent not resolved by the parties prior to the Confirmation Hearing). Notwithstanding anything to the contrary in the Plan, the Debtors or the Reorganized Debtors, as applicable, reserve the right to alter, amend, modify, or supplement the Assumed Executory Contracts and Unexpired Leases Schedule and the Rejected Executory Contracts and Unexpired Leases Schedule at any time up to forty-five (45) days after the Effective Date, so long as such alteration, amendment, modification, or supplement is consistent with the Restructuring Support Agreement (and subject to the consent, approval and consultation rights set forth therein).
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Samples: Restructuring Support Agreement (Denbury Resources Inc)
