Common use of Executory Contract Designation Clause in Contracts

Executory Contract Designation. (a) No later than the date of the service of the Executory Contract List upon all necessary parties pursuant to Section 2.7(b) hereof, Seller shall deliver to Purchaser a true, correct and complete list of all material Contracts that are executory Contracts or unexpired leases related to the Acquired Assets or otherwise used in connection with the Business (the “Executory Contract List”). The Executory Contract List shall list the monetary amounts that Seller believes are the Cure Costs and such other commercial information related to the Contracts listed thereon as shall be reasonably requested by Purchaser. Seller shall also provide, together with the Executory Contract List, a list of any nonmonetary obligations that Seller believes must be otherwise satisfied, including pursuant to Section 365(b)(1)(A) and (B) of the Bankruptcy Code, in order for Purchaser to take assignment of the Assigned Contracts pursuant to this Agreement. (b) No later than July 7, 2016, a copy of the Executory Contract List shall be properly served on all necessary parties, including all counterparties to each Contract. (c) [reserved]. (d) Notwithstanding anything in this Agreement to the contrary, Purchaser may (i) revise any schedule (other than the Seller Disclosure Schedule) setting forth the Acquired Assets and the Excluded Assets to (A) include in the definition of Acquired Assets (pursuant to the applicable schedule) and to exclude from the definition of Excluded Assets, any Contract of Seller not previously included in the Acquired Assets, at any time prior to the Auction, subject to the Cure Cap, and require Seller to give notice to the parties to any such Contract and (B) exclude from the definition of Acquired Assets (pursuant to the applicable schedule) and to include in the definition of Excluded Assets, any Contract of Seller previously included in the Acquired Assets and not otherwise included in the definition of Excluded Assets, at any time on or prior to the Auction and (ii) include in the definition of Assumed Liabilities any Liabilities relating to Seller’s trade payables and other accounts payable at any time on or prior to the Auction. If any Contract is excluded from the Acquired Assets as permitted by this Section 2.7(d), all Liabilities to third parties arising under such Contract shall be Excluded Liabilities. Without limiting any of Purchaser’s rights pursuant to this Section 2.7(d), in the event that the Sale Order does not approve the assignment or transfer of one or more of the Assigned Contracts to Purchaser as Acquired Assets, then Purchaser shall have the option to either (i) terminate this Agreement pursuant to Section 4.4(k) or (ii) proceed with Closing with respect to the remaining Acquired Assets with an appropriate reduction in the Purchase Price (as agreed by Seller and Purchaser or as determined in an Order of the Bankruptcy Court), and exclude any or all such Assigned Contracts from the Acquired Assets. (e) Seller shall be obligated to pay at Closing any undisputed Cure Costs associated with the assumption of such Assigned Contract and any disputed Cure Costs shall be paid by Seller at the appropriate time set forth in any Order of the Bankruptcy Court or mutual agreement between Seller and the non-Seller counterparty to the applicable Assigned Contract provided that such undisputed and disputed Cure Costs do not exceed $5,000,000 in the aggregate (the “Cure Cap”). (f) Notwithstanding anything contained herein to the contrary, Purchaser shall only take assignment of Contracts designated by Purchaser as Assigned Contracts pursuant to this Section 2.7.

Executory Contract Designation. ‌ (a) No later than the date of the service of the Executory Contract List upon all necessary parties pursuant to Section 2.7(b) hereof, Seller shall deliver to Purchaser a true, correct and complete list of all material Contracts that are executory Contracts or unexpired leases related to the Acquired Assets or otherwise used in connection with the Business (the “Executory Contract List”). The Executory Contract List shall list the monetary amounts that Seller believes are the Cure Costs and such other commercial information related to the Contracts listed thereon as shall be reasonably requested by Purchaser. Seller shall also provide, together with the Executory Contract List, a list of any nonmonetary obligations that Seller believes must be otherwise satisfied, including pursuant to Section 365(b)(1)(A) and (B) of the Bankruptcy Code, in order for Purchaser to take assignment of the Assigned Contracts pursuant to this Agreement.Agreement.‌ (b) No later than July 7, 2016, a copy of the Executory Contract List shall be properly served on all necessary parties, including all counterparties to each Contract. (c) [reserved]. (d) Notwithstanding anything in this Agreement to the contrary, Purchaser may (i) revise any schedule (other than the Seller Disclosure Schedule) setting forth the Acquired Assets and the Excluded Assets to (A) include in the definition of Acquired Assets (pursuant to the applicable schedule) and to exclude from the definition of Excluded Assets, any Contract of Seller not previously included in the Acquired Assets, at any time prior to the Auction, subject to the Cure Cap, and require Seller to give notice to the parties to any such Contract and (B) exclude from the definition of Acquired Assets (pursuant to the applicable schedule) and to include in the definition of Excluded Assets, any Contract of Seller previously included in the Acquired Assets and not otherwise included in the definition of Excluded Assets, at any time on or prior to the Auction and (ii) include in the definition of Assumed Liabilities any Liabilities relating to Seller’s trade payables and other accounts payable at any time on or prior to the Auction. If any Contract is excluded from the Acquired Assets as permitted by this Section 2.7(d), all Liabilities to third parties arising under such Contract shall be Excluded Liabilities. Without limiting any of Purchaser’s rights pursuant to this Section 2.7(d), in the event that the Sale Order does not approve the assignment or transfer of one or more of the Assigned Contracts to Purchaser as Acquired Assets, then Purchaser shall have the option to either (i) terminate this Agreement pursuant to Section 4.4(k) or (ii) proceed with Closing with respect to the remaining Acquired Assets with an appropriate reduction in the Purchase Price (as agreed by Seller and Purchaser or as determined in an Order of the Bankruptcy Court), and exclude any or all such Assigned Contracts from the Acquired Assets. (e) Seller shall be obligated to pay at Closing any undisputed Cure Costs associated with the assumption of such Assigned Contract and any disputed Cure Costs shall be paid by Seller at the appropriate time set forth in any Order of the Bankruptcy Court or mutual agreement between Seller and the non-Seller counterparty to the applicable Assigned Contract provided that such undisputed and disputed Cure Costs do not exceed $5,000,000 in the aggregate (the “Cure Cap”). (f) Notwithstanding anything contained herein to the contrary, Purchaser shall only take assignment of Contracts designated by Purchaser as Assigned Contracts pursuant to this Section 2.7.

Executory Contract Designation. (a) No Prior to the Designation Deadline, the Purchaser shall designate each Executory Contract that the Purchaser elects to be assumed and assigned to it as of the Closing Date. Purchaser shall pay, satisfy or otherwise discharge its obligations with respect to the Cure Costs related to such Executory Contracts no later than 45 days after the date of the service of the Executory Contract List upon all necessary parties pursuant to Section 2.7(b) hereof, Seller shall deliver to Purchaser a true, correct and complete list of all material Contracts that are executory Contracts or unexpired leases related to the Acquired Assets or otherwise used in connection with the Business Closing Date (the “Executory Contract ListCure Costs Deadline”). The Executory Contract List shall list the monetary amounts that Seller believes are the Cure Costs and such other commercial information related to the Contracts listed thereon as shall be reasonably requested by Purchaser. Seller shall also provide, together with the Executory Contract List, a list of any nonmonetary obligations that Seller believes must be otherwise satisfied, including pursuant to Section 365(b)(1)(A) and (B) of the Bankruptcy Code, in order for Purchaser to take assignment of the Assigned Contracts pursuant to this Agreement. (b) No Subsequent to the Designation Deadline and on or prior to the Cure Costs Deadline, Purchaser may designate any Executory Contract that the Sellers have not rejected pursuant to Section 365 of the Bankruptcy Code as an Assumed Contract or Assumed Lease without being required to pay the Sellers any additional Purchase Price, and Sellers shall use their reasonable efforts to seek an Assumption Order with respect any such Executory Contract so designated; provided, however, that Purchaser shall be obligated to pay any Cure Costs with respect to any such Assumed Executory Contract; and provided, further, however, that Purchaser advances or reimburses Sellers for any and all costs (including the professional fees associated with) related to or incurred in connection with the Sellers seeking entry of the Assumption Order with respect to such Executory Contract. Purchaser shall pay, satisfy or otherwise discharge its obligations with respect to Cure Costs related to the assumption and assignment of such Executory Contracts no later than July 7, 2016, a copy forty-five (45) days after entry of the Assumption Order with respect to any Executory Contract List shall be properly served on all necessary parties, including all counterparties assumed or assigned to each ContractPurchaser pursuant to this Section 2.5(b). (c) [reserved]From the Effective Date through and including the Cure Costs Deadline, Sellers shall not reject any Executory Contract unless otherwise agreed to in writing by Purchaser. (d) Notwithstanding anything in this Agreement to From the contraryClosing Date through and including the Cure Costs Deadline, Purchaser may shall advance or reimburse all of Sellers’ costs and expenses accruing after the Closing Date under any Executory Contract that Purchaser has not (i) revise any schedule (other than the Seller Disclosure Schedule) setting forth the Acquired Assets and the Excluded Assets to (A) include in the definition of Acquired Assets (pursuant to the applicable schedule) and to exclude from the definition of Excluded Assets, any Contract of Seller not previously included in the Acquired Assets, at any time prior to the Auction, subject to the Cure Cap, and require Seller to give notice to the parties to any such Contract and (B) exclude from the definition of Acquired Assets (pursuant to the applicable schedule) and to include in the definition of Excluded Assets, any Contract of Seller previously included in the Acquired Assets and not otherwise included in the definition of Excluded Assets, at any time on or prior to the Auction and (ii) include in the definition of Assumed Liabilities any Liabilities relating to Seller’s trade payables and other accounts payable at any time on or prior to the Auction. If any Contract is excluded from the Acquired Assets as permitted by this Section 2.7(d), all Liabilities to third parties arising under such Contract shall be Excluded Liabilities. Without limiting any of Purchaser’s rights pursuant to this Section 2.7(d), in the event agreed that the Sale Order does not approve the assignment or transfer of one or more of the Assigned Contracts to Purchaser as Acquired Assets, then Purchaser shall have the option to either (i) terminate this Agreement Sellers may reject pursuant to Section 4.4(k2.5(c) or (ii) proceed provided Sellers with Closing with respect to the remaining Acquired Assets with an appropriate reduction in the Purchase Price (as agreed by Seller and Purchaser or as determined in an Order of the Bankruptcy Court), and exclude any or all such Assigned Contracts from the Acquired Assets. (e) Seller shall be obligated to pay at Closing any undisputed Cure Costs associated with the assumption of such Assigned Contract and any disputed Cure Costs shall be paid by Seller at the appropriate time set forth in any Order of the Bankruptcy Court or mutual agreement between Seller and the non-Seller counterparty to the applicable Assigned Contract provided written notice that such undisputed Executory Contract will not be assumed and disputed Cure Costs do not exceed $5,000,000 in the aggregate (the “Cure Cap”). (f) Notwithstanding anything contained herein to the contrary, Purchaser shall only take assignment of Contracts designated by Purchaser as Assigned Contracts assigned pursuant to this Section 2.72.5(a) or (b) above.

Executory Contract Designation. (a) a. No later than the date of the service of the Executory Contract List upon all necessary parties pursuant to Section 2.7(b) hereof, Seller Sellers shall deliver to Purchaser a true, correct and complete list of all material Contracts that are executory Contracts or unexpired leases related to the Acquired Assets or otherwise used in connection with the Business (the “Executory Contract List”). The Executory Contract List shall list the monetary amounts that Seller believes Sellers believe are the Cure Costs (“Undisputed Cure Costs”) and such other commercial information related to the Contracts listed thereon as shall be reasonably requested by Purchaser. Seller Sellers shall also provide, together with the Executory Contract List, a list of any nonmonetary obligations that Seller believes Sellers believe must be otherwise satisfied, including pursuant to Section 365(b)(1)(A) and (B) of the Bankruptcy Code, in order for Purchaser to take assignment of the Assigned Contracts pursuant to this Agreement. (b) b. No later than July 7, 2016three (3) business days following the entry of the Bidding Procedures Order, a copy of the Executory Contract List shall be properly served on all necessary parties. c. To the extent a counterparty to a Contract objects or otherwise challenges the Undisputed Cure Costs determined by Sellers and asserts a different monetary amount that must be paid and/or nonmonetary obligations that otherwise must be satisfied, including all counterparties pursuant to each ContractSection 365(b)(1)(A) and (B) of the Bankruptcy Code, in order for Purchaser or the Purchaser Designees to assume such Contract pursuant to this Agreement, the difference between the Undisputed Cure Costs determined by Sellers and such amounts and/or nonmonetary obligations determined by such counterparty shall be referred to as the “Disputed Cure Costs”. (c) [reserved]. (d) d. Notwithstanding anything in this Agreement to the contrary, Purchaser may (i) revise any schedule (other than the Seller Disclosure Schedule) setting forth the Acquired Assets and the Excluded Assets to (A) include in the definition of Acquired Assets (pursuant to the applicable schedule) and to exclude from the definition of Excluded Assets, any Contract Contract, Seller Plan or other asset of Seller Sellers not previously included in the Acquired Assets, at any time prior to the Auction, subject to the Cure Cap, Auction and require Seller Sellers to give notice to the parties to any such Contract and (B) exclude from the definition of Acquired Assets (pursuant to the applicable schedule) and to include in the definition of Excluded Assets, any Contract (other than Supplier Contracts), Seller Plan or other asset of Seller Sellers previously included in the Acquired Assets and not otherwise included in the definition of Excluded Assets, at any time on or prior to the Auction and (ii) include in the definition of Assumed Liabilities any Liabilities relating to Seller’s Sellers’ trade payables and other accounts payable at any time on or prior to the Auction; provided that no such change of a schedule, the definition of the Acquired Assets, the definition of the Excluded Assets, or the definition of Assumed Liabilities shall reduce the amount of the Purchase Price below the amount of the Cash Consideration. If any Contract (other than Supplier Contracts), or Seller Plan is excluded from the Acquired Assets as permitted by this Section 2.7(d), all Liabilities to third parties arising under such Contract Contract, or Seller Plan shall be Excluded Liabilities. Without limiting any of Purchaser’s rights pursuant to this Section 2.7(d), in the event that the Sale Order does not approve the assignment or transfer of one or more of the Assigned Contracts to Purchaser or the Purchaser Designees as Acquired Assets, then Purchaser shall have the option to either (i) terminate this Agreement pursuant to Section 4.4(k) or (ii) proceed with Closing with respect may, in its sole discretion and at any time prior to the remaining Acquired Assets with an appropriate reduction in the Purchase Price (as agreed by Seller and Purchaser or as determined in an Order of the Bankruptcy Court)Closing Date, and exclude any or all such of the Assigned Contracts from the Acquired AssetsAssets but may not reduce the amount of the Purchase Price. (e) Seller e. Purchaser shall be obligated to pay at Closing any undisputed Undisputed Cure Costs associated with the assumption of such Assigned Contract and any disputed Contract. The Disputed Cure Costs shall be paid by Seller Purchaser or the Purchaser Designees at the appropriate time set forth in any Order of the Bankruptcy Court or mutual agreement between Seller Purchaser or the Purchaser Designees and the non-Seller Sellers counterparty to the applicable Assigned Contract provided that such undisputed and disputed Cure Costs do not exceed $5,000,000 in the aggregate (the “Cure Cap”)Contract. (f) f. Notwithstanding anything contained herein to the contrary, Purchaser and the Purchaser Designees shall only take assignment of Contracts designated by Purchaser as Assigned Contracts pursuant to this Section 2.7. g. Prior to the Closing, Sellers shall use commercially reasonable efforts to provide Purchaser with access to relevant business records, personnel, equipment, and Purchaser’s other reasonable requests in order to allow Purchaser to assist with evaluating the Disputed Cure Costs.

Executory Contract Designation. (a) No later than the date of the service of Purchaser hereby designates the Executory Contract List upon all necessary parties pursuant listed on Schedule 2.5(a) as the Executory Contracts that Purchaser elects to Section 2.7(b) hereofbe assumed and assigned to it (with such assumption and assignment to be effective as of the Closing Date), and Seller shall deliver use its reasonable efforts to Purchaser a trueseek an Assumption Order with respect any such Executory Contract so designated (the “Initial Assumed Executory Contracts”). Seller shall pay, correct and complete list of all material Contracts that are executory Contracts satisfy or unexpired leases otherwise discharge the obligations with respect to the Cure Costs related to the Acquired Assets or otherwise used Initial Assumed Executory Contracts by the later of (i) the Closing Date, and (ii) such later date as the Bankruptcy Court may order in connection with any order authorizing Seller to assume or reject the Business Executory Contracts under Section 365 of the Bankruptcy Code (the “Executory Contract ListCure Costs Deadline”). The Executory Contract List , and in each instance Purchaser shall list the monetary amounts have no liability therefore (except as expressly set forth in Section 2.3(j) above); provided, however, that Seller believes are the Cure Costs and such other commercial information related to the Contracts listed thereon as Deadline shall be reasonably requested by Purchaser. Seller shall also provide, together with extended to a date fifteen (15) days following the Executory Contract List, entry of a list of Bankruptcy Court order resolving any nonmonetary obligations that Seller believes must be otherwise satisfied, including pursuant to Section 365(b)(1)(A) and (B) of the Bankruptcy Code, in order for Purchaser to take assignment of the Assigned Contracts pursuant to this Agreementdisputed Cure Costs. (b) No By no later than July 7the Final Designation Deadline (the “Additional Designation Period”), 2016, a copy of the Purchaser shall be entitled to designate any remaining unassumed Executory Contract List that Purchaser may want to assume from Seller and have assigned to it (“Additional Designated Executory Contract”) and Seller shall be properly served on all necessary parties, including all counterparties use its reasonable efforts to each seek entry of an Assumption Order with respect any such Additional Designated Executory Contract. (c) [reserved]With respect to each Additional Designated Executory Contract, and upon receipt of sufficient funds pursuant to Section 2.3(j) (which funds shall be paid by Purchaser to Seller substantially simultaneously with the later of (x) the Closing and (y) the date of the assumption and assignment of such Additional Designated Executory Contracts), Seller shall pay, satisfy or otherwise discharge all obligations with respect to the Cure Costs related to each Additional Designated Executory Contract to the extent that such expenses have accrued prior to the Closing Date. Such payment shall be made on such date as the Bankruptcy Court may order in connection with any order authorizing Seller to assume or reject such Additional Designated Executory Contract under Section 365 of the Bankruptcy Code (the Cure Costs Deadline for all Additional Designated Executory Contracts). Purchaser shall have no liability for any obligations or indebtedness that may accrue under any Additional Designated Executory Contract prior to the Closing Date. With respect to each Additional Designated Executory Contract, Purchaser shall pay, satisfy or otherwise discharge all expenses of administration allowed by the Bankruptcy Court in connection with such Additional Designated Executory Contract to the extent such expenses accrued during the period commencing on the first day following the Closing Date and ending on the date on which such Additional Designated Executory Contract is either (i) designated for rejection in writing by Purchaser or (ii) designated by Purchaser as an Assumed Executory Contract and assumed by and assigned to Purchaser pursuant to an Assumption Order (the “Post-Closing Determination Period”); provided, however, that Seller shall use commercially reasonable efforts to obtain the entry of an Assumption Order in connection with any Additional Designated Executory Contract by no later than thirty (30) days after the Final Designation Deadline. Seller shall have no liability for any obligations or indebtedness that may accrue under any Additional Designated Executory Contract during the Post-Closing Determination Period, except for any obligations or indebtedness arising by as a result of Seller’s willful misconduct or gross negligence. (d) Notwithstanding anything From the Effective Date through and including the Final Designation Deadline, Seller shall not reject or allow for the rejection of any Executory Contract unless otherwise agreed to in this Agreement to writing by Purchaser. To the contraryextent that an Executory Contract becomes an Additional Designated Executory Contract, Seller shall not reject or allow for the rejection of such Executory Contract until Purchaser may (i) revise any schedule (other than the Seller Disclosure Schedule) setting forth the Acquired Assets and the Excluded Assets to (A) include designates in the definition of Acquired Assets (pursuant to the applicable schedule) and to exclude from the definition of Excluded Assets, any Contract of Seller not previously included in the Acquired Assets, at any time prior to the Auction, subject to the Cure Cap, and require Seller to give notice to the parties to any writing that such Contract and (B) exclude from the definition of Acquired Assets (pursuant to the applicable schedule) and to include in the definition of Excluded Assets, any Contract of Seller previously included in the Acquired Assets and not otherwise included in the definition of Excluded Assets, at any time on or prior to the Auction and (ii) include in the definition of Assumed Liabilities any Liabilities relating to Seller’s trade payables and other accounts payable at any time on or prior to the Auction. If any Executory Contract is excluded from the Acquired Assets as permitted by this Section 2.7(d), all Liabilities to third parties arising under such Contract shall be Excluded Liabilities. Without limiting any of Purchaser’s rights pursuant to this Section 2.7(d), in the event that the Sale Order does not approve the assignment or transfer of one or more of the Assigned Contracts to Purchaser as Acquired Assets, then Purchaser shall have the option to either (i) terminate this Agreement pursuant to Section 4.4(k) or (ii) proceed with Closing with respect to the remaining Acquired Assets with an appropriate reduction in the Purchase Price (as agreed by Seller and Purchaser or as determined in an Order of the Bankruptcy Court), and exclude any or all such Assigned Contracts from the Acquired Assetsrejected. (e) If, by the Final Designation Deadline, Purchaser fails to instruct Seller in writing to reject an Executory Contract that is not by that date either an Assumed Executory Contract or an Additional Designated Executory Contract, Seller agrees to immediately, but in no event more than two (2) Business Days following the Final Designation Deadline, provide written notice of its intention to reject such Executory Contract. Purchaser shall be obligated to pay at Closing any undisputed Cure Costs associated with the assumption have no more than two (2) Business Days from its receipt of such Assigned notice to provide Seller with written notice of its decision to designate such Executory Contract as an Additional Designated Executory Contract. If Purchaser timely designates such Executory Contract as an Additional Designated Executory Contract, Purchaser shall have all those obligations and any disputed Cure Costs shall be paid by Seller at the appropriate time rights set forth in Sections 2.5(c) and (d) above with respect to such Executory Contract. If Purchaser does not timely so designate such Executory Contract as an Additional Designated Executory Contract, Purchaser shall have no obligation or liability on account of such Executory Contract and Seller shall retain any Order and all obligations or liabilities in connection therewith; provided that Purchaser shall pay, satisfy or otherwise discharge all expenses of administration allowed by the Bankruptcy Court or mutual agreement between in connection with such Executory Contract for the period commencing on the first day following the Closing Date and ending on the effective date of the rejection of such Executory Contract, so long as Seller (i) files with the Bankruptcy Court its rejection of such Executory Contract within six (6) Business Days following the Final Designation Deadline and (ii) requests the non-Seller counterparty earliest possible hearing date available with the Bankruptcy Court to the applicable Assigned Contract provided that finalize such undisputed and disputed Cure Costs do not exceed $5,000,000 in the aggregate (the “Cure Cap”rejection(s). (f) Notwithstanding anything contained herein to the contrary, Purchaser shall only take assignment of Contracts designated by Purchaser as Assigned Contracts pursuant to this Section 2.7.