Common use of Assumption Rejection of Certain Contracts Clause in Contracts

Assumption Rejection of Certain Contracts. (a) Sellers shall provide timely and proper written notice of a proposed Sale Order to all parties to any executory Contracts or unexpired leases to which Sellers or any of their respective Subsidiaries or Affiliates is a party that are Assigned Contracts and take all other actions reasonably necessary to cause such Contracts to be assumed by Sellers and assigned to Purchaser pursuant to Section 365 of the Bankruptcy Code to the extent that such Contracts are Assigned Contracts at the Closing. The Sale Order shall provide that as of and conditioned on the occurrence of the Closing, Sellers shall assign or cause to be assigned to Purchaser or an Affiliate of Purchaser designated by Purchaser, as applicable, the Assigned Contracts, each of which shall be identified by the name or appropriate description and date of the Assigned Contract (if available), the other party to the Assigned Contract and the address of such party for notice purposes, all included in a notice filed with the Bankruptcy Court the Bankruptcy Court (the “Cure Notice”). The Cure Notice shall also set forth Sellers’ good faith estimate of the amounts necessary to cure any defaults under each of the Assigned Contracts as determined by Sellers based on their books and records or as otherwise determined by the Bankruptcy Court. At the Closing, Sellers shall, pursuant to the Sale Order and the Assignment and Assumption Agreement, assign to Purchaser (the consideration for which is included in the Purchase Price), all Assigned Contracts that may be assigned by Sellers to Purchaser pursuant to sections 363 and 365 of the Bankruptcy Code. (b) Sellers shall transfer and assign, or shall cause to be transferred or assigned, all Assigned Contracts to Purchaser or an Affiliate of Purchaser designated by Purchaser, and Purchaser or such designated Affiliate of Purchaser shall assume all Assigned Contracts, as of the Closing Date pursuant to section 365 of the Bankruptcy Code and the Sale Order. As promptly as practicable following the date hereof, Purchaser and Sellers shall use commercially reasonable efforts to cooperate and determine the Cure Costs under each Assigned Contract, if any, so as to permit the assumption and assignment of each such Assigned Contract pursuant to section 365 of the Bankruptcy Code in connection with the Transaction. (c) Purchaser shall have the right to notify Sellers in writing of any Assigned Contract (other than purchase orders) that it does not wish to assume or a Contract that is related to the Acquired Assets to which any Seller is a party that Purchaser wishes to add as an Assigned Contract up to two (2) Business Days prior to the Bid Deadline (as defined in the Bidding Procedures Order), and (i) any such previously considered Assigned Contract that Purchaser no longer wishes to assume shall be automatically deemed removed from the Schedules related to Assigned Contracts and automatically deemed added to the Excluded Assets, in each case, without any adjustment to the Purchase Price, and (ii) any such previously considered Contract that is related to the Acquired Assets that Purchaser wishes to assume as an Assigned Contract shall be automatically deemed added to the Schedules related to Assigned Contracts, automatically deemed removed from the Excluded Assets, and assumed by Sellers to sell and assign to Purchaser, in each case, without any adjustment to the Purchase Price. Purchaser shall be solely responsible for the payment, performance and discharge when due of the Liabilities under the Assigned Contracts arising or that are otherwise payable from the time of and after the Closing. (d) Notwithstanding anything to the contrary in this Agreement, a Contract shall not be assigned to, or assumed by, Purchaser to the extent that such Contract is rejected by any Seller or its Affiliates or terminated by such Seller, its Affiliates or any other party thereto, or terminates or expires by its terms, on or prior to such time as it is to be assumed by Purchaser as an Assigned Contract hereunder and is not continued or otherwise extended upon assumption. (e) Notwithstanding anything to the contrary in this Agreement, to the extent an Acquired Asset requires any consent or approval from any party, including any Governmental Body (other than, and in addition to and determined after giving effect to any Order of the Bankruptcy Court, including the Sale Order) in order to permit the sale or transfer to Purchaser of the applicable Seller’s right, title and interest in and to such asset, and such consent or approval has not been obtained prior to such time as such right, title and interest is to be transferred by Purchaser hereunder, such asset shall not be transferred to, or received by, Purchaser. If any Acquired Asset is deemed not to be assigned pursuant to this clause (e), the Closing shall nonetheless take place subject to the other terms and conditions set forth herein and, thereafter, through the earlier of (x) such time as such consent or approval from the applicable party, including any Governmental Body, is obtained and (y) six (6) months following the Closing (or the closing of the Chapter 11 Cases or dissolution of Sellers, if earlier), Sellers and Purchaser shall (A) use reasonable best efforts to secure such consents or approvals as promptly as practicable after the Closing and (B) cooperate in good faith in any lawful and commercially reasonable arrangement reasonably proposed by Purchaser, including subcontracting, licensing, or sublicensing to Purchaser any or all of Sellers’ rights and obligations with respect to any such Acquired Asset, under which (1) Purchaser shall obtain (without infringing upon the legal rights of such third party or violating any Law) the economic rights and benefits (net of the amount of any related Tax costs imposed on Sellers or their respective Affiliates or any direct costs associated with the retention and maintenance of such Acquired Asset incurred by Sellers or their respective Affiliates) with respect to such Acquired Asset with respect to which such consent or approval has not been obtained and (2) Purchaser shall assume and timely discharge all related burdens and obligations with respect to such Acquired Asset. Upon satisfying any requisite consent or approval requirement applicable to such Acquired Asset after the Closing, the applicable Seller’s right, title and interest in and to such Acquired Asset shall promptly be transferred and assigned to Purchaser in accordance with the terms of this Agreement, the Sale Order and the Bankruptcy Code. (f) If at any time after the Closing, any Seller or Purchaser becomes aware that such Seller continues to hold any Acquired Asset, including an Assigned Contract, or any asset necessary for the operation of the Acquired Businesses that should have been conveyed in accordance with this Agreement, such Party will promptly notify the other Party and such Seller shall use its commercially reasonable efforts to transfer (or cause to be transferred) such Acquired Asset or asset to Purchaser. Following written confirmation from the Purchaser, the Purchaser will assume any Assumed Liabilities associated therewith upon receipt, in each case, without further consideration being due or paid from Purchaser to such Seller. If at any time after the Closing, Purchaser becomes aware that it holds any Excluded Asset, Purchaser will promptly notify Sellers and use its commercially reasonable efforts to transfer (or cause to be transferred) such Excluded Asset to the applicable Seller, without further consideration being due or paid from any Seller to Purchaser.

Assumption Rejection of Certain Contracts. (a) A ssumption and Assignment of Executory Contracts. Schedule 1.5(a) sets forth a list of all executory Contracts (including all Leases with respect to Leased Real Property) to which, to the Knowledge of Sellers, one or more Sellers are party or to which any of their assets are bound and which are to be included in the Assigned Contracts. From time to time, and as reasonably requested by Purchaser, Sellers shall update Schedule 1.5(a). Sellers shall provide timely and proper written notice of a proposed the motion seeking entry of the Sale Order to all parties to any executory Contracts or unexpired leases to which Sellers or any of their respective Subsidiaries or Affiliates is a party that are Assigned Contracts and take all other actions reasonably necessary or otherwise required to cause such Contracts to be assumed by Sellers and assigned to Purchaser or any other Designated Purchaser pursuant to Section 365 of the Bankruptcy Code to the extent that such Contracts are Assigned Contracts at as of the ClosingClosing (including (x) serving on all non-Seller counterparties to all of their Contracts a notice specifically stating that Sellers are or may be seeking the assumption and assignment of such Contract(s) and of the deadline for objecting to the Cure Costs or any other aspect of the proposing assumption and assignment of their Contracts to Purchaser and (y) taking, as promptly as practicable, all other actions reasonably requested by Purchaser to facilitate any negotiations with the counterparties to such Assigned Contracts and to obtain an Order, including a finding that the proposed assumption and assignment of the Assigned Contracts to Purchaser satisfies all applicable requirements of Section 365 of the Bankruptcy Code). The Sale Order shall provide that as of and conditioned on the occurrence of the Closing, Sellers shall assign or cause to be assigned to Purchaser or an Affiliate of Purchaser designated by a Designated Purchaser, as applicable, the Assigned Contracts, each of which shall be identified by the name or appropriate description and date of the Assigned Contract (if available), the other party to the Assigned Contract and the address of such party for notice purposes, all included in a notice filed in connection with the Bankruptcy Court the Bankruptcy Court (the “Cure Notice”). The Cure Notice shall also set forth Sellers’ good faith estimate motion for approval of the amounts Sale Order or a separate motion for authority to assume and assign such necessary to cure any defaults under each of the Assigned Contracts as determined by Sellers based on their books and records or as otherwise determined by the Bankruptcy Court. At the ClosingClosing and subject to the last paragraph of Section 1.1 and Section 1.5(b), Sellers shall, pursuant to the Sale Order Order, and the Assignment and Assumption AgreementAgreement(s), assume and assign to Purchaser or a Designated Purchaser (the consideration for which is included in the Purchase Price), all Assigned Contracts that may be assigned by Sellers any such Seller to Purchaser or a Designated Purchaser pursuant to sections Sections 363 and 365 of the Bankruptcy Code.. At the Closing, Purchaser (bi) Sellers shall transfer pay all Cure Costs and assign(ii) shall, assume or shall cause to be transferred or assigned, all Assigned Contracts to Purchaser or an Affiliate of Purchaser designated by Purchaserassumed, and Purchaser thereafter in due course and in accordance with its respective terms pay, fully satisfy, discharge and perform (or such designated Affiliate of Purchaser shall assume cause to be fully satisfied, discharged and performed) all Assigned Contracts, as of the Closing Date obligations (other than any Excluded Liabilities) that are Assumed Liabilities under each Assigned Contract pursuant to section Section 365 of the Bankruptcy Code and the Sale Order. As promptly Assignment and Assumption Agreements, as practicable following the date hereof, Purchaser and Sellers shall use commercially reasonable efforts to cooperate and determine the Cure Costs under each Assigned Contract, if any, so as to permit the assumption and assignment of each such Assigned Contract pursuant to section 365 of the Bankruptcy Code in connection with the Transactionapplicable. (c) Purchaser shall have the right to notify Sellers in writing of any Assigned Contract (other than purchase orders) that it does not wish to assume or a Contract that is related to the Acquired Assets to which any Seller is a party that Purchaser wishes to add as an Assigned Contract up to two (2) Business Days prior to the Bid Deadline (as defined in the Bidding Procedures Order), and (i) any such previously considered Assigned Contract that Purchaser no longer wishes to assume shall be automatically deemed removed from the Schedules related to Assigned Contracts and automatically deemed added to the Excluded Assets, in each case, without any adjustment to the Purchase Price, and (ii) any such previously considered Contract that is related to the Acquired Assets that Purchaser wishes to assume as an Assigned Contract shall be automatically deemed added to the Schedules related to Assigned Contracts, automatically deemed removed from the Excluded Assets, and assumed by Sellers to sell and assign to Purchaser, in each case, without any adjustment to the Purchase Price. Purchaser shall be solely responsible for the payment, performance and discharge when due of the Liabilities under the Assigned Contracts arising or that are otherwise payable from the time of and after the Closing. (d) Notwithstanding anything to the contrary in this Agreement, a Contract shall not be assigned to, or assumed by, Purchaser to the extent that such Contract is rejected by any Seller or its Affiliates or terminated by such Seller, its Affiliates or any other party thereto, or terminates or expires by its terms, on or prior to such time as it is to be assumed by Purchaser as an Assigned Contract hereunder and is not continued or otherwise extended upon assumption. (e) Notwithstanding anything to the contrary in this Agreement, to the extent an Acquired Asset requires any consent or approval from any party, including any Governmental Body (other than, and in addition to and determined after giving effect to any Order of the Bankruptcy Court, including the Sale Order) in order to permit the sale or transfer to Purchaser of the applicable Seller’s right, title and interest in and to such asset, and such consent or approval has not been obtained prior to such time as such right, title and interest is to be transferred by Purchaser hereunder, such asset shall not be transferred to, or received by, Purchaser. If any Acquired Asset is deemed not to be assigned pursuant to this clause (e), the Closing shall nonetheless take place subject to the other terms and conditions set forth herein and, thereafter, through the earlier of (x) such time as such consent or approval from the applicable party, including any Governmental Body, is obtained and (y) six (6) months following the Closing (or the closing of the Chapter 11 Cases or dissolution of Sellers, if earlier), Sellers and Purchaser shall (A) use reasonable best efforts to secure such consents or approvals as promptly as practicable after the Closing and (B) cooperate in good faith in any lawful and commercially reasonable arrangement reasonably proposed by Purchaser, including subcontracting, licensing, or sublicensing to Purchaser any or all of Sellers’ rights and obligations with respect to any such Acquired Asset, under which (1) Purchaser shall obtain (without infringing upon the legal rights of such third party or violating any Law) the economic rights and benefits (net of the amount of any related Tax costs imposed on Sellers or their respective Affiliates or any direct costs associated with the retention and maintenance of such Acquired Asset incurred by Sellers or their respective Affiliates) with respect to such Acquired Asset with respect to which such consent or approval has not been obtained and (2) Purchaser shall assume and timely discharge all related burdens and obligations with respect to such Acquired Asset. Upon satisfying any requisite consent or approval requirement applicable to such Acquired Asset after the Closing, the applicable Seller’s right, title and interest in and to such Acquired Asset shall promptly be transferred and assigned to Purchaser in accordance with the terms of this Agreement, the Sale Order and the Bankruptcy Code. (f) If at any time after the Closing, any Seller or Purchaser becomes aware that such Seller continues to hold any Acquired Asset, including an Assigned Contract, or any asset necessary for the operation of the Acquired Businesses that should have been conveyed in accordance with this Agreement, such Party will promptly notify the other Party and such Seller shall use its commercially reasonable efforts to transfer (or cause to be transferred) such Acquired Asset or asset to Purchaser. Following written confirmation from the Purchaser, the Purchaser will assume any Assumed Liabilities associated therewith upon receipt, in each case, without further consideration being due or paid from Purchaser to such Seller. If at any time after the Closing, Purchaser becomes aware that it holds any Excluded Asset, Purchaser will promptly notify Sellers and use its commercially reasonable efforts to transfer (or cause to be transferred) such Excluded Asset to the applicable Seller, without further consideration being due or paid from any Seller to Purchaser.

Assumption Rejection of Certain Contracts. (a) Sellers Assumption and Assignment of Executory Contracts. Purchaser shall, in its sole discretion, determine those Contracts that shall become Assigned Contracts, in the time frames and as otherwise set forth herein. Seller shall provide timely and proper written notice of a proposed the Sale Order to all parties to any executory Contracts or unexpired leases to which Sellers or any of their respective Subsidiaries or Affiliates Seller is a party that are (or are to become) Assigned Contracts and take all other actions reasonably necessary to cause such Contracts to be assumed by Sellers Seller and assigned to Purchaser pursuant to Section section 365 of the Bankruptcy Code to the extent that such Contracts are Assigned Contracts at the Closing. The Sale Order shall provide that as of and conditioned on the occurrence of the Closing, Sellers Seller shall assign or cause to be assigned to Purchaser or an Affiliate of Purchaser designated by Purchaser, as applicable, the Assigned Contracts, each of which shall be identified by the name or appropriate description and date of the Assigned Contract (if available), the other party to the Assigned Contract and the address of such party for notice purposes, all included in a notice filed in connection with the Bankruptcy Court motion for approval of the Bankruptcy Court (the “Cure Notice”)Sale Order, or a separate motion for authority to assume and assign such Assigned Contracts. The Cure Notice Such exhibit shall also set forth Sellers’ Seller’s good faith estimate of the amounts necessary to cure any defaults under each of the Assigned Contracts as determined by Sellers Seller based on their Seller’s books and records or as otherwise determined by the Bankruptcy Court. At the Closing, Sellers Seller shall, pursuant to the Sale Order and the Assignment and Assumption AgreementAgreement(s), assume and assign to Purchaser (the consideration for which is included in the Purchase Price), all Assigned Contracts that may be assigned by Sellers Seller to Purchaser pursuant to sections 363 and 365 of the Bankruptcy Code. , subject to adjustment pursuant to Section 1.5(b). At the Closing, Purchaser shall (bi) Sellers shall transfer pay all Cure Costs and assign, or shall cause to be transferred or assigned, all Assigned Contracts to Purchaser or an Affiliate of Purchaser designated by Purchaser(ii) assume, and Purchaser or such designated Affiliate of Purchaser shall assume thereafter in due course and in accordance with its respective terms pay, fully satisfy, discharge and perform all Assigned Contracts, as of the Closing Date pursuant to section 365 of the Bankruptcy Code and the Sale Order. As promptly as practicable following the date hereof, Purchaser and Sellers shall use commercially reasonable efforts to cooperate and determine the Cure Costs obligations under each Assigned Contract, if any, so as to permit the assumption and assignment of each such Assigned Contract pursuant to section 365 of the Bankruptcy Code in connection with the Transaction. (c) Purchaser shall have the right to notify Sellers in writing of any Assigned Contract (other than purchase orders) that it does not wish to assume or a Contract that is related to the Acquired Assets to which any Seller is a party that Purchaser wishes to add as an Assigned Contract up to two (2) Business Days prior to the Bid Deadline (as defined in the Bidding Procedures Order), and (i) any such previously considered Assigned Contract that Purchaser no longer wishes to assume shall be automatically deemed removed from the Schedules related to Assigned Contracts and automatically deemed added to the Excluded Assets, in each case, without any adjustment to the Purchase Price, and (ii) any such previously considered Contract that is related to the Acquired Assets that Purchaser wishes to assume as an Assigned Contract shall be automatically deemed added to the Schedules related to Assigned Contracts, automatically deemed removed from the Excluded Assets, and assumed by Sellers to sell and assign to Purchaser, in each case, without any adjustment to the Purchase Price. Purchaser shall be solely responsible for the payment, performance and discharge when due of the Liabilities under the Assigned Contracts arising or that are otherwise payable from the time of and after the Closing. (d) Notwithstanding anything to the contrary in this Agreement, a Contract shall not be assigned to, or assumed by, Purchaser to the extent that such Contract is rejected by any Seller or its Affiliates or terminated by such Seller, its Affiliates or any other party thereto, or terminates or expires by its terms, on or prior to such time as it is to be assumed by Purchaser as an Assigned Contract hereunder and is not continued or otherwise extended upon assumption. (e) Notwithstanding anything to the contrary in this Agreement, to the extent an Acquired Asset requires any consent or approval from any party, including any Governmental Body (other than, and in addition to and determined after giving effect to any Order of the Bankruptcy Court, including the Sale Order) in order to permit the sale or transfer to Purchaser of the applicable Seller’s right, title and interest in and to such asset, and such consent or approval has not been obtained prior to such time as such right, title and interest is to be transferred by Purchaser hereunder, such asset shall not be transferred to, or received by, Purchaser. If any Acquired Asset is deemed not to be assigned pursuant to this clause (e), the Closing shall nonetheless take place subject to the other terms and conditions set forth herein and, thereafter, through the earlier of (x) such time as such consent or approval from the applicable party, including any Governmental Body, is obtained and (y) six (6) months following the Closing (or the closing of the Chapter 11 Cases or dissolution of Sellers, if earlier), Sellers and Purchaser shall (A) use reasonable best efforts to secure such consents or approvals as promptly as practicable after the Closing and (B) cooperate in good faith in any lawful and commercially reasonable arrangement reasonably proposed by Purchaser, including subcontracting, licensing, or sublicensing to Purchaser any or all of Sellers’ rights and obligations with respect to any such Acquired Asset, under which (1) Purchaser shall obtain (without infringing upon the legal rights of such third party or violating any Law) the economic rights and benefits (net of the amount of any related Tax costs imposed on Sellers or their respective Affiliates or any direct costs associated with the retention and maintenance of such Acquired Asset incurred by Sellers or their respective Affiliates) with respect to such Acquired Asset with respect to which such consent or approval has not been obtained and (2) Purchaser shall assume and timely discharge all related burdens and obligations with respect to such Acquired Asset. Upon satisfying any requisite consent or approval requirement applicable to such Acquired Asset after the Closing, the applicable Seller’s right, title and interest in and to such Acquired Asset shall promptly be transferred and assigned to Purchaser in accordance with the terms of this Agreement, the Sale Order and the Bankruptcy Code. (f) If at any time after the Closing, any Seller or Purchaser becomes aware that such Seller continues to hold any Acquired Asset, including an Assigned Contract, or any asset necessary for the operation of the Acquired Businesses that should have been conveyed in accordance with this Agreement, such Party will promptly notify the other Party and such Seller shall use its commercially reasonable efforts to transfer (or cause to be transferred) such Acquired Asset or asset to Purchaser. Following written confirmation from the Purchaser, the Purchaser will assume any Assumed Liabilities associated therewith upon receipt, in each case, without further consideration being due or paid from Purchaser to such Seller. If at any time after the Closing, Purchaser becomes aware that it holds any Excluded Asset, Purchaser will promptly notify Sellers and use its commercially reasonable efforts to transfer (or cause to be transferred) such Excluded Asset to the applicable Seller, without further consideration being due or paid from any Seller to Purchaser.