Common use of Contract Designation Rights Clause in Contracts

Contract Designation Rights. (1) A Seller is a party to that certain Restated P53 and K-Ras Agreement by and among Aventis Pharmaceuticals Products Inc., Aventis Pharma S.A., and Introgen Therapeutics, Inc. dated June 30, 2001, as supplemented or amended (the “Aventis Agreement”). Each Seller may be a party to other agreements or contracts (in addition to the Assumed Contracts) that support or are valuable to the development or marketability of the Assets, but such additional contracts are under review. From the date hereof until 5:00 p.m. central time on November 30, 2009 (the “Contract Designation Period”), Buyer shall have the option to make designations as to the transfer, assumption and assignment of any contracts or agreements (other than the Assumed Contracts) that were entered into prior to the filing of the bankruptcy case and to which either Seller is a party that, as of the date of this Agreement, have not been rejected, assumed or assigned by Sellers (together with the Aventis Agreement, the “Additional Contracts”) by delivering to Sellers a notice (a “Transfer Notice”) of Buyer’s election to request Sellers to seek approval from the Bankruptcy Court to transfer, assume and assign one or more of such Additional Contracts to Buyer. Upon receipt of a Transfer Notice for an Additional Contract, Sellers shall promptly file and serve an appropriate motion reasonably acceptable to Buyer and Sellers seeking the Bankruptcy Court’s approval of the transfer, assumption and assignment of such Additional Contract to Buyer. Contracts to which any of Sellers’ wholly-owned subsidiaries are a party and which, if any Seller had been party to them would have been an Additional Contract, shall be addressed under the procedures outlined in Section 3.2(f). (2) By written notice (a “Withdrawal of Transfer Notice”) to Sellers at least two business days prior to the hearing on the Sellers’ motion to transfer, assume and assign any Additional Contract that was the subject of a prior Transfer Notice, Buyer may withdraw its Transfer Notice with respect to one or more Additional Contracts and the Sellers shall withdraw its motion with respect to such designated Additional Contracts only. (3) Sellers represent that as of the date of execution of this Agreement, they have not rejected the Aventis Agreement and covenant and agree not to take any action specifically intended to reject the Aventis Agreement or any Additional Contract prior to the Closing Date. Buyer acknowledges that any Additional Contracts that are not on Schedule 1.1(a)(2) and that have not been added to the list of Assumed Contracts filed with the bankruptcy court will be deemed rejected upon the effective date of Sellers’ Plan of Reorganization and Sellers’ agree that prior to the earlier of (i) the Closing Date, (ii) the termination of this Agreement, or (iii) 150 days after the confirmation of Sellers’ Plan of Reorganization, Sellers shall not have the plan of reorganization deemed effective, although Sellers will continue to vigorously pursue confirmation of their Plan of Reorganization, and nothing in this Section 1.1 will prevent Sellers from doing so.

Contract Designation Rights. (1a) A On or prior to the date hereof, Sellers shall have delivered to Purchaser a list of (i) all Material Contracts to which any Seller is a party party, (ii) the amount of the Cure Costs associated with each Material Contract identified in Section 5.10(a) of the Seller Disclosure Schedule and (iii) any Material Contracts entered into by Sellers during the pendency of the Bankruptcy Case. To the Knowledge of Sellers, such list shall also contain a list of all other Contracts to which Sellers are a party, other than such Contracts that certain Restated P53 are immaterial to the Business. Sellers shall cooperate with and Kprovide such additional information to Purchaser in order to identify and provide to Purchaser as promptly as practicable all Material Contracts related to the Business (and the related Cure Costs), as well as Cure Costs of non-Ras Agreement by and among Aventis Pharmaceuticals Products Inc., Aventis Pharma S.A.Material Contracts, and Introgen Therapeuticssubject to assumption or rejection hereunder. (b) Any motions filed by Sellers with, Inc. dated June 30and any proposed orders submitted by Sellers to, 2001, as supplemented or amended (the “Aventis Agreement”). Each Seller may be a party to other agreements or contracts (in addition to the Assumed Contracts) that support or are valuable to the development or marketability of the Assets, but such additional contracts are under review. From Bankruptcy Court seeking authorization after the date hereof until 5:00 p.m. central time on November 30to assume or reject any Contracts, 2009 or any notices of disclaimer, resiliation, or repudiation given by any Seller in the Canadian Proceeding shall be satisfactory in form and substance to Purchaser in its reasonable discretion. As set forth in the Approval Order, no later than twenty (the “Contract Designation Period”), Buyer shall have the option to make designations as 20) days prior to the transferSale Hearing, the Sellers shall cause notice to be provided to all counterparties to the Contracts, substantially in the form annexed to the Approval Motion as Exhibit D regarding the (i) assumption and assignment to Purchaser all of the Contracts, except for any such Contracts which Purchaser previously has advised Sellers in writing that it does not wish to assume (and Sellers shall thereupon be under no obligation to seek assumption and assignment to Purchaser of any contracts such Contracts), and (ii) fixing of the Cure Costs associated with each Contract as of the Sale Hearing (or agreements (other than as of such later date reasonably acceptable to Purchaser and Sellers). Sellers shall consult with, and give due consideration to the Assumed Contracts) that were entered into views and concerns of, Purchaser prior to compromising or commencing any Action with respect to any material payment required to be made under the Bankruptcy Code to effectuate the assumption of any such Contract, including using commercially reasonable efforts to provide five (5) days notice of any such compromise or Action to Purchasers. (c) For the purpose of determining whether a Contract of Sellers shall be included as a Purchased Contract or an Excluded Asset, from and after the filing of the bankruptcy case and Approval Motion all such Contracts shall be treated as follows: (i) no later than three (3) days prior to which either Seller is a party that, as the day of the Auction, Purchaser shall notify Sellers in writing of those Contracts which Purchaser desires to be designated to be assumed by Sellers and assigned to Purchaser on the Closing Date, with Purchaser responsible for all Cure Costs associated therewith; provided, however, each such Contract identified in Section 5.10(a) of the Seller Disclosure Schedule as a Material Contract shall be designated to be assumed by Sellers and assigned to Purchaser, with Purchaser responsible for all Cure Costs associated therewith, unless otherwise specifically noted in such Section of the Seller Disclosure Schedule (in which case each such Contract shall be deemed rejected and shall not be purchased by Purchaser as a Purchased Contract); (ii) each of such Contracts entered into during the pendency of the Bankruptcy Case shall be designated to be assigned to Purchaser, unless Purchaser notifies Sellers in writing that it will not purchase such Contract, in which case such Contract shall not be assigned to Purchaser and shall be included as an Excluded Asset; provided, however, if such Contract was required to be identified in Section 5.10(a) of the Seller Disclosure Schedule as a Material Contract and was not identified or was entered into on or after the date hereof in breach of this AgreementAgreement then such Contract shall not be assigned to or purchased by Purchaser; and (iii) after the Auction but in any event no later than two (2) Business Days prior to the Closing Date, have Purchaser shall notify Sellers in writing of any Contracts which Purchaser does not been rejected, desire to be assumed or assigned by Sellers (together and assigned to Purchaser, in which case any such Contracts shall not be assigned to Purchaser and shall be included as Excluded Assets and may be rejected by Sellers. Any Contract designated to be assumed and assigned hereunder shall be accompanied by such information or documentation related to "adequate assurance of future performance" as shall be reasonably required in connection with the Aventis Agreement, the “Additional Contracts”) by delivering to Sellers a notice (a “Transfer Notice”) of Buyer’s election to request Sellers to seek approval from the Bankruptcy Court to transfer, assume and assign one or more of such Additional Contracts to Buyer. Upon receipt of a Transfer Notice for an Additional Contract, Sellers shall promptly file and serve an appropriate motion reasonably acceptable to Buyer and Sellers seeking the Bankruptcy Court’s approval of the transfer, assumption and assignment of such Additional Contract to Buyer. Contracts to which any of Sellers’ wholly-owned subsidiaries are a party and which, if any Seller had been party to them would have been an Additional Contract, and upon Bankruptcy Court approval for the assumption and assignment thereof to Purchaser, shall constitute a Purchased Asset hereunder. Any Contract that is not assumed as provided above shall be addressed under an Excluded Asset, and shall not constitute a Purchased Asset hereunder. Notwithstanding anything to the procedures outlined contrary set forth in Section 3.2(f)this Agreement, to the extent that, prior to Closing, any Purchased Contract is not subject to an order of the Bankruptcy Court with respect to the assumption and assignment of such Purchased Contract, any Liabilities of Sellers related to such Purchased Contract shall be the responsibility of Sellers until such Purchased Contract is either assumed by Sellers and assigned to Purchaser or rejected by Sellers. (2d) By written notice At Closing, to the extent not previously paid, Purchaser shall pay or cause to be paid (a “Withdrawal of Transfer Notice”) and shall reimburse or cause to be reimbursed to Sellers at least two business days prior to on an after-Tax basis any amounts paid after the hearing on the Sellers’ motion to transfer, assume date hereof in respect of) any and assign any Additional Contract all Cure Costs in respect of all prepetition Contracts that was the subject of a prior Transfer Notice, Buyer may withdraw its Transfer Notice with respect to one or more Additional Contracts and the Sellers shall withdraw its motion with respect to such designated Additional Contracts onlyare Purchased Contracts. (3e) Nothing in this Agreement shall be construed as an attempt by Sellers to assign any Contract to the extent that such Contract is not assignable under the Bankruptcy Code or the CCAA or otherwise without the consent of the other party or parties thereto, and the consent of such other party has not been given or received, as applicable. With respect to any Contract for which the consent of a party thereto to the assignment thereof shall not have been obtained at Closing and any claim, right or benefit arising thereunder or resulting therefrom, to the extent Purchaser waives the condition set forth in Section_9.2(f) (to the extent applicable), Sellers and Purchaser shall use their reasonable good faith efforts to obtain as expeditiously as possible the written consent of the other party or parties to such Contract necessary for the assignment thereof to Purchaser. Unless and until any such consent, waiver, confirmation, novation or approval is obtained, Sellers and Purchaser shall cooperate to establish an arrangement reasonably satisfactory to Purchaser under which Purchaser would obtain the claims, rights and benefits and assume the corresponding Liabilities and obligations thereunder (including by means of any subcontracting, sublicensing or subleasing arrangement) or under which Sellers would enforce for the benefit of Purchaser, with Purchaser assuming and agreeing to pay Sellers' obligations (other than any related Cure Costs), any and all claims, rights and benefits of Sellers against a third party thereto. In such event, (i) Sellers represent that as of the date of execution of this Agreementwill hold in trust for and promptly pay to Purchaser, they have not rejected the Aventis Agreement and covenant and agree not to take when received, all moneys received by them under any action specifically intended to reject the Aventis Agreement such Contract or any Additional Contract prior claim, right or benefit arising thereunder and (ii) Purchaser will promptly pay, perform or discharge, when due, any and all obligations and Liabilities arising thereunder (other than any related Cure Costs), other than those being contested in good faith. Purchaser acknowledges that no adjustment to the Closing Date. Buyer acknowledges that Purchase Price shall be made for any Additional such Contracts that are not on Schedule 1.1(a)(2) assigned and that Purchaser shall have not been added to the list no claim against Sellers in respect of Assumed Contracts filed with the bankruptcy court will such unassigned Contracts. Nothing in this paragraph shall be deemed rejected upon a waiver of Purchaser's right to receive an effective assignment of all of the effective Purchased Assets at Closing nor shall any Contracts covered by this paragraph be deemed to constitute Excluded Assets solely by virtue of this paragraph. Sellers' obligations under this paragraph shall terminate on the date of Sellers’ Plan of Reorganization and Sellers’ agree that prior to the earlier of is ninety (i90) days after the Closing Date, (ii) the termination of this Agreement, or (iii) 150 days after the confirmation of Sellers’ Plan of Reorganization, Sellers shall not have the plan of reorganization deemed effective, although Sellers will continue to vigorously pursue confirmation of their Plan of Reorganization, and nothing in this Section 1.1 will prevent Sellers from doing so.

Contract Designation Rights. (1a) A Seller is a party From time to that certain Restated P53 time from and K-Ras Agreement by and among Aventis Pharmaceuticals Products Inc., Aventis Pharma S.A., and Introgen Therapeutics, Inc. dated June 30, 2001, as supplemented or amended (the “Aventis Agreement”). Each Seller may be a party to other agreements or contracts (in addition to the Assumed Contracts) that support or are valuable to the development or marketability of the Assets, but such additional contracts are under review. From after the date hereof until 5:00 p.m. central time on November 30August 31, 2009 2005 (the “Contract Designation PeriodExpiration Date”), Buyer Purchaser shall have the option right to make designations as to the transfer, assumption and assignment of any contracts Contracts used or agreements held for use in the Business (including real estate leases and post petition Contracts, but other than the Assumed Contracts) that were entered into prior to real estate leases for the filing of the bankruptcy case and to which either Seller is a party that, as of the date of this Agreement, have not been rejected, assumed or assigned by Sellers (together with the Aventis Agreement, the “Additional Contracts”GOB Locations) by delivering to Sellers a notice (a an “Transfer Assumption Notice”) of BuyerPurchaser’s election to request require Sellers to seek approval from the Bankruptcy Court to transfer, assume and assign one or more of such Additional Contracts to BuyerPurchaser. Upon Each Assumption Notice shall be accompanied by such information or documentation relating to “adequate assurance of future performance” as shall be reasonably required in connection with the filing by Sellers of the Approval Motion. Purchaser agrees that it will, subject to receipt of an Approval Order, assume a Transfer sufficient number of real estate leases in respect of the Going Concern Locations that would result in 502(b)(6) rejection damages to the Sellers and the bankruptcy estate arising out of the rejection by Sellers of any real estate leases for the Going Concern Locations (not including any rejection damages relating to Stores 201 and 202 in Utah) of no more than $7,500,000 (subject to the accuracy of the “gross 502(b)(6) claim estimate” as actual rejection damages contained in the report provided to Purchaser by Sellers, dated April 7, 2005, prepared by Hxxxxxx, Mxxxxxxx & Sxxxxx LLC). In the event that the aggregate amount of such 502(b)(6) rejection damages to the Sellers and the bankruptcy estate is more than $7,500,000, the parties shall mutually agree upon an appropriate adjustment to the Purchase Price; provided, that if the parties cannot reach mutual agreement within 10 Business Days, the Bankruptcy Court shall determine an appropriate adjustment. (b) Within five Business Days following the date upon which Sellers receive an Assumption Notice for an Additional Contractfrom Purchaser, Sellers shall promptly file and serve an appropriate motion reasonably acceptable to Buyer Approval Motion with the Bankruptcy Court and Sellers seeking shall thereafter use reasonable commercial efforts to obtain an Approval Order. As used in this Section 2.7, “reasonable commercial efforts” shall require Sellers or Purchaser (as the case may be), to, among other things, pay any and all reasonable costs and expenses for the payment of attorneys and other professionals whose services may reasonably be required in connection with such efforts. (c) The Parties shall pay any and all cure amounts under section 365(b)(1) of the Bankruptcy Court’s approval Code with respect to all Contracts which are the subject of an Assumption Notice and become Assumed Contracts (“Cure Amounts”) as follows: (i) Purchaser shall be solely responsible for and shall pay any and all Cure Amounts in respect of pre-petition arrearages (“Pre-petition Cure Amounts”) up to an aggregate amount of $2,000,000. (ii) Sellers shall be solely responsible for and shall pay any and all Pre-petition Cure Amounts in excess of the transferaggregate amount of $2,000,000 up to $3,600,000. If the actual aggregate amount of Pre-petition Cure Amounts payable (“Actual Cure Payments”) is less than $3,600,000 but greater than $2,000,000, then promptly after the Designation Expiration Date, Sellers shall make a payment to Purchaser in an amount equal to one-half of the amount by which $3,600,000 exceeds the Actual Cure Payments. (iii) Sellers shall be solely responsible for and shall pay any and all Pre-petition Cure Amounts in excess of the aggregate amount of $3,600,000 up to $4,000,000. (iv) Sellers and Purchasers shall each be responsible for and shall each pay one-half of any and all Pre-petition Cure Amounts in excess of $4,000,000. (v) Sellers shall be solely responsible for and shall pay any and all Cure Amounts in respect of post petition arrearages or amounts incurred after the petition date and prior to or on the Closing Date, subject to Purchaser’s obligations under Section 2.7(h). Sellers shall be solely responsible for any and all costs of preparing or obtaining the Approval Motion and Approval Order and any agreements, motions or Bankruptcy Court orders necessary to implement the assumption and assignment of such Additional any Contract to Buyer. Contracts to which any is the subject of Sellers’ wholly-owned subsidiaries are a party and which, if any Seller had been party to them would have been an Additional Contract, shall be addressed under the procedures outlined in Section 3.2(f)Assumption Notice. (2d) By written At any time and from time to time from and after the date of this Agreement prior to the Designation Expiration Date, Purchaser shall also have the right, which right may be exercised in Purchaser’s sole and absolute discretion, to provide notice to Sellers (a “Withdrawal of Transfer Dropout Notice”) of Purchaser’s election to Sellers at least two business days prior to not assume any Contract used or held for use in the hearing on Business. On the Sellers’ motion to transfer, assume and assign any Additional Contract that was fifth Business Day following the subject delivery of a prior Transfer such Dropout Notice, Buyer may withdraw its Transfer Notice with respect to one or more Additional Contracts and such later date as specified in the Sellers Dropout Notice, which date shall withdraw its motion with respect to in no event be later than the Designation Expiration Date (the “Dropout Date”), such designated Additional Contracts only. (3) Sellers represent that Contract will be deemed an Excluded Asset as of the date of execution of this Agreement, they have not rejected the Aventis Agreement and covenant and agree not to take any action specifically intended to reject the Aventis Agreement or any Additional Contract prior to the Closing Date. Buyer acknowledges Any Contract which, on the Designation Expiration Date is not then the subject of an Assumption Notice or already assigned to and assumed by Purchaser, shall be deemed an Excluded Asset as of the Closing Date and Purchaser shall be deemed to have delivered a Dropout Notice in respect thereof. Subject to Purchaser’s obligations prior to delivering a Dropout Notice contained in paragraph (h) below, Purchaser shall have no further obligation or liability with respect thereto and Sellers shall be solely responsible for all amounts payable or other obligations or liabilities that may be owed in connection with such Contract (including, without limitation, any Additional Contracts that are not on Schedule 1.1(a)(2) damages resulting from the rejection of the Contract applicable to any such Contract under section 365 of the Bankruptcy Code or otherwise and that have not been added the cost and expenses of the rejection at any time of any one or more Contracts, including the filing and prosecuting of any motions or other papers with respect to the list of Assumed Contracts filed with the bankruptcy court will be deemed rejected upon the effective date of Sellers’ Plan of Reorganization and Sellers’ agree that prior to the earlier of (i) the Closing Date, (ii) the termination of this Agreement, or (iii) 150 days after the confirmation of Sellers’ Plan of Reorganization, Sellers shall not have the plan of reorganization deemed effective, although Sellers will continue to vigorously pursue confirmation of their Plan of Reorganization, and nothing in this Section 1.1 will prevent Sellers from doing sosame).