Common use of Assumption and Assignment of Contracts Clause in Contracts

Assumption and Assignment of Contracts. (a) Promptly, but in any event within 20 days from the Effective Date, Sellers shall deliver to Purchaser (i) a true and complete list of all material Contracts used in the Business to which a Seller is a party, and within two (other than Sellers’ insurance policies, confidentiality agreements, employment agreements, offer letters, severance agreements and consulting agreements), and within five Business Days of Purchaser’s request, Sellers shall make available a true and copy of any such Contract, and (ii) Schedule 2.7(a), which schedule shall contain, with respect to each Contract, Sellers’ good-faith best estimate, as certified by the Chief Executive Officer or Chief Financial Officer of Sellers, of the amount of Cure Costs with respect to each such Contract; provided, however, that, from and after the date of delivery of Schedule 2.7(a) hereunder until 30 days from the Effective Date, Sellers may provide updates or supplements to Schedule 2.7(a) to include revised Cure Costs with respect to any Contract set forth therein, which updates shall amend Schedule 2.7(a) for all purposes hereof. (b) Notwithstanding anything in this Agreement to the contrary, Purchaser may, from time to time and in its sole and absolute discretion, amend or revise Schedule 2.7(a) in order to add or eliminate any Contract to or from such Schedule up to one Business Day prior to the Qualified Bid Deadline. Automatically upon the addition of any Contract to Schedule 2.7(a) by Purchaser in accordance with the previous sentence, but subject to Purchaser’s right to remove any such Contract pursuant to this Section 2.7(b), such Contract shall be a Purchased Contract for all purposes of this Agreement. Automatically upon the deletion of any Contract from Schedule 2.7(a) by Purchaser in accordance with the first sentence of this Section 2.7(b), such Contract shall be an Excluded Asset for all purposes of this Agreement, and no Liabilities arising thereunder or relating thereto shall be assumed by Purchaser or be the obligation, liability or responsibility of Purchaser. If any Contract is added to the list of Purchased Contracts in accordance with this Section 2.7(b), then Sellers shall take such steps as are reasonably necessary (other than payment of any Cure Costs) to cause such Contract to be assumed and assigned to Purchaser as promptly as possible at or following the Closing. (c) The Sale Order shall provide for the assumption by Sellers, and the assignment to the extent legally capable of being assigned by Sellers to Purchaser, of the Purchased Contracts pursuant to Section 365 of the Bankruptcy Code on the terms and conditions set forth in the remainder of this Section 2.7. At Purchaser’s request, and at Purchaser’s sole cost and expense, Sellers shall reasonably cooperate from the Effective Date forward with Purchaser as reasonably requested by Purchaser (i) to allow Purchaser to enter into an amendment of any Purchased Contract upon assumption of such Purchased Contract by Purchaser (and Sellers shall reasonably cooperate with Purchaser to the extent reasonably requested with Purchaser in negotiations with the counterparties thereof), or (ii) to otherwise amend any Purchased Contract to the extent such amendments would not adversely affect any Seller; provided that (A) in no event shall any such amendments be effective prior to the Closing and (B) Sellers shall not be required to enter into any such amendment if such amendment would result in an assumption by Seller of such Purchased Contract unless such Purchased Contract will be assigned to Purchaser at the time of such assumption. (d) Within four Business Days following the Bid Deadline, the applicable Seller shall file with the Bankruptcy Court and serve notice (an “Assumption Notice”) by first class mail on all non-debtor counterparties to any Contract included on Schedule 2.7(a) as of one Business Day prior to the Qualified Bid Deadline, and provide a copy of such Assumption Notice to Purchaser; provided that the assumption of any Contract on Schedule 2.7(a) will only occur at the Closing. At the Closing, Sellers shall assume and assign to Purchaser the Purchased Contracts, in each case, pursuant to Section 365 of the Bankruptcy Code and the Sale Order, subject to provision by Purchaser of adequate assurance as may be required under Section 365 of the Bankruptcy Code. The Cure Costs in respect of all of the Purchased Contracts shall be borne by Purchaser and shall not be the obligation, liability or responsibility of Sellers. Prior to the Sale Hearing, Sellers shall commence appropriate proceedings before the Bankruptcy Court and otherwise take all reasonably necessary actions in order to determine Cure Costs with respect to any Purchased Contract. (e) As part of the Sale Motion (or as necessary in one or more separate motions), Sellers shall request that, by virtue of any Seller providing notice (in accordance with the assumption and assignment procedures set forth in the Bidding Procedures Order) of its intent to assume and assign any Purchased Contract, the Bankruptcy Court deem any non-debtor party to such Purchased Contract that does not file an objection with the Bankruptcy Court during such notice period to have given any Necessary Consent to the assumption of the Purchased Contract by the relevant Seller and assignment to Purchaser. (f) Sellers shall use their respective commercially reasonable efforts to obtain one or more orders of the Bankruptcy Court, which order(s) shall be in form and substance reasonably acceptable to Purchaser, and shall reflect the terms and conditions set forth herein, to assume and assign the Purchased Contracts to Purchaser on the terms set forth in this Section 2.7. In the event Sellers are unable to obtain such an order for assumption and assignment of any such Purchased Contract to Purchaser, then the Parties shall use commercially reasonable efforts until the Designation Deadline to obtain, and to cooperate in obtaining, all Necessary Consents from Governmental Bodies and third parties necessary to assume and assign such Purchased Contracts to Purchaser, including, in the case of Purchaser, paying any applicable Cure Costs. (g) Subject to Section 2.8, to the extent that any Necessary Consent that is required to assume and assign to Purchaser any Purchased Contract is not obtained by the Closing Date, each Seller shall, with respect to each such Purchased Contract, from and after the Closing and until the earliest to occur of (i) the date on which such applicable Necessary Consent is obtained (which Necessary Consents the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly; provided, however, that none of the Parties or any of their respective Affiliates shall be required to pay any consideration therefor other than filing, recordation or similar fees, which shall be borne by Purchaser), and (ii) the date on which Purchaser delivers a written notice of exclusion of such Purchased Contract pursuant to this Section 2.7 or the Purchased Contract is deemed rejected under Section 365 of the Bankruptcy Code, use reasonable best efforts during the term of such Purchased Contract to (A) provide to Purchaser the benefits under such Purchased Contract, (B) cooperate in any reasonable and lawful arrangement, including holding such Contract in trust for Purchaser pending receipt of the Necessary Consent, designed to provide such benefits to Purchaser and (C) use its reasonable best efforts to enforce for the account of Purchaser any rights of such Seller under such Purchased Contract, including the right to elect to terminate such Purchased Contract in accordance with the terms thereof upon the written direction of Purchaser. Purchaser shall reasonably cooperate with Sellers in order to enable Sellers to provide to Purchaser the benefits contemplated by this Section 2.7(g). (h) Notwithstanding the foregoing, a Contract shall not be a Purchased Contract hereunder and shall not be assigned to, or assumed by, Purchaser to the extent that such Contract (i) is designated for exclusion by a Seller in accordance with the terms hereof, deemed rejected under Section 365 of the Bankruptcy Code, or terminated by the other party thereto or terminates or expires in accordance with its terms on or prior to the Designation Deadline and is not continued or otherwise extended prior to or upon assumption and assignment, or (ii) subject to Section 2.8 below, requires a Necessary Consent of any Governmental Body or other third party (other than, and in addition to, that of the Bankruptcy Court) in order to permit the assumption and assignment by Seller to Purchaser of such Contract pursuant to Section 365 of the Bankruptcy Code, and no such Necessary Consent has been obtained prior to the Designation Deadline.

Assumption and Assignment of Contracts. (a) Promptly, but in any event within 20 days from the Effective Date, Sellers shall deliver to Purchaser (iSchedule 2.6(a) is a true and complete list of all material Contracts used in of the Business Sellers that are capable of assumption and assignment pursuant to Section 365 of the Bankruptcy Code (the “Assignable Contracts”). At the Sale Hearing (notice of which a Seller is a party, shall be properly and within two (other than timely served on all non-Sellers counterparties to Assignable Contracts by the Sellers’ insurance policies, confidentiality agreements, employment agreements, offer letters, severance agreements and consulting agreements), and within five Business Days of Purchaser’s request, the Sellers shall make available a true seek authority to assume and copy of any such Contractassign to the Buyer those Assignable Contracts that are, and or that become (iipursuant to the procedures set forth in Section 2.6(f) Schedule 2.7(abelow), which schedule shall contain, with respect to each Contract, Sellers’ good-faith best estimate, as certified by the Chief Executive Officer or Chief Financial Officer of Sellers, of the amount of Cure Costs with respect to each such Contract; provided, however, that, from and after the date of delivery of Schedule 2.7(a) hereunder until 30 days from the Effective Date, Sellers may provide updates or supplements to Schedule 2.7(a) to include revised Cure Costs with respect to any Contract set forth therein, which updates shall amend Schedule 2.7(a) for all purposes hereofAssumed Contracts. (b) Subject to Section 2.6(g), the Assumed Contracts shall be assumed by the Sellers and assigned to the Buyer at the Closing pursuant to an order of the Bankruptcy Court pursuant to Section 365 of the Bankruptcy Code. (c) Schedule 2.6(a) sets forth those Contracts that the Buyer has determined shall not be assigned and assumed to it, which shall be designated as “Excluded Contracts” (the “Excluded Contracts”). Notwithstanding anything in this Agreement to the contrary, Purchaser may, from time to time and the Buyer shall not be liable for any Liabilities in its sole and absolute discretion, amend or revise Schedule 2.7(a) in order to add or eliminate any Contract to or from such Schedule up to one Business Day prior to the Qualified Bid Deadline. Automatically upon the addition of any Contract to Schedule 2.7(a) by Purchaser in accordance with the previous sentence, but subject to Purchaser’s right to remove any such Contract pursuant to this Section 2.7(b), such Contract shall be a Purchased Contract for all purposes of this Agreement. Automatically upon the deletion respect of any Contract from Schedule 2.7(a) by Purchaser and after the time of its designation as an Excluded Contract, and any Liabilities arising under, relating to, or in accordance connection with the first sentence of this Section 2.7(b), such Excluded Contract shall be an deemed Excluded Asset Liabilities for all purposes of under this Agreement. (d) At the Closing (subject to Section 2.6(g)), Buyer shall pay any Cure Amounts due in connection with the assumption and assignment of the Assumed Contracts as set forth in the Sale Order for which all necessary Consents required by the Bankruptcy Code to transfer have been obtained, and no the Buyer will assume and agree to perform and discharge the Assumed Liabilities arising thereunder under the Assumed Contracts or, such other additional or relating thereto shall be assumed fewer Assumed Contracts as otherwise agreed by Purchaser or be the obligation, liability or responsibility Parties at the time of Purchaser. If any Contract is added to the list of Purchased Contracts in accordance with this Section 2.7(b), then Sellers shall take such steps as are reasonably necessary (other than payment of any Cure Costs) to cause such Contract to be assumed and assigned to Purchaser as promptly as possible at or following the Closing. (c) The Sale Order shall provide for the assumption by Sellers, and the assignment to the extent legally capable of being assigned by Sellers to Purchaser, of the Purchased Contracts pursuant to Section 365 of the Bankruptcy Code on the terms and conditions set forth in the remainder of this Section 2.7. At Purchaser’s request, and at Purchaser’s sole cost and expense, Sellers shall reasonably cooperate from the Effective Date forward with Purchaser as reasonably requested by Purchaser (i) to allow Purchaser to enter into an amendment of any Purchased Contract upon assumption of such Purchased Contract by Purchaser (and Sellers shall reasonably cooperate with Purchaser to the extent reasonably requested with Purchaser in negotiations with the counterparties thereof), or (ii) to otherwise amend any Purchased Contract to the extent such amendments would not adversely affect any Seller; provided that (A) in no event shall any such amendments be effective prior to the Closing and (B) Sellers shall not be required to enter into any such amendment if such amendment would result in an assumption by Seller of such Purchased Contract unless such Purchased Contract will be assigned to Purchaser at the time of such assumption. (d) Within four Business Days following the Bid Deadline, the applicable Seller shall file with the Bankruptcy Court and serve notice (an “Assumption Notice”) by first class mail on all non-debtor counterparties to any Contract included on Schedule 2.7(a) as of one Business Day prior to the Qualified Bid Deadline, and provide a copy of such Assumption Notice to Purchaser; provided that the assumption of any Contract on Schedule 2.7(a) will only occur at the Closing. At the Closing, Sellers shall assume and assign to Purchaser the Purchased Contracts, in each case, pursuant to Section 365 of the Bankruptcy Code and the Sale Order, subject to provision by Purchaser of adequate assurance as may be required under Section 365 of the Bankruptcy Code. The Cure Costs in respect of all of the Purchased Contracts shall be borne by Purchaser and shall not be the obligation, liability or responsibility of Sellers. Prior to the Sale Hearing, Sellers shall commence appropriate proceedings before the Bankruptcy Court and otherwise take all reasonably necessary actions in order to determine Cure Costs with respect to any Purchased Contract. (e) As part of the Sale Motion (or as necessary in one or more separate motions), Sellers shall request that, by virtue of any Seller providing notice (in accordance with the assumption and assignment procedures set forth in the Bidding Procedures Order) of its intent to assume and assign any Purchased Contract, the Bankruptcy Court deem any non-debtor party to such Purchased Contract that does not file an objection with the Bankruptcy Court during such notice period to have given any Necessary Consent to the assumption of the Purchased Contract by the relevant Seller and assignment to Purchaser. (f) Sellers shall use their respective commercially reasonable efforts to obtain one or more orders of the Bankruptcy Court, which order(s) shall be in form and substance reasonably acceptable to Purchaser, and shall reflect the terms and conditions set forth herein, to assume and assign the Purchased Contracts to Purchaser on the terms set forth in this Section 2.7. In the event Sellers are unable to obtain such an order for assumption and assignment of any such Purchased Contract to Purchaser, then the Parties shall use commercially reasonable efforts until the Designation Deadline to obtain, and to cooperate in obtaining, all Necessary Consents from Governmental Bodies and third parties necessary to assume and assign such Purchased Contracts to Purchaser, including, in the case of Purchaser, paying any applicable Cure Costs. (g) Subject to Section 2.8, to the extent that any Necessary Consent that is required to assume and assign to Purchaser any Purchased Contract is not obtained by the Closing Date, each Seller shall, with respect to each such Purchased Contract, from and after the Closing and until the earliest to occur of (i) the date on which such applicable Necessary Consent is obtained (which Necessary Consents the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly; provided, however, that none of the Parties or any of their respective Affiliates shall be required to pay any consideration therefor other than filing, recordation or similar fees, which shall be borne by Purchaser), and (ii) the date on which Purchaser delivers a written notice of exclusion of such Purchased Contract pursuant to this Section 2.7 or the Purchased Contract is deemed rejected under Section 365 of the Bankruptcy Code, use reasonable best efforts during the term of such Purchased Contract to (A) provide to Purchaser the benefits under such Purchased Contract, (B) cooperate in any reasonable and lawful arrangement, including holding such Contract in trust for Purchaser pending receipt of the Necessary Consent, designed to provide such benefits to Purchaser and (C) use its reasonable best efforts to enforce for the account of Purchaser any rights of such Seller under such Purchased Contract, including the right to elect to terminate such Purchased Contract in accordance with the terms thereof upon the written direction of Purchaser. Purchaser shall reasonably cooperate with Sellers in order to enable Sellers to provide to Purchaser the benefits contemplated by this Section 2.7(g). (h) Notwithstanding the foregoing, a Contract shall not be a Purchased an Assumed Contract hereunder and shall not be assigned to, or assumed by, Purchaser Buyer to the extent that such Contract (i) is designated for exclusion rejected by a Seller or terminated by a Seller in accordance with the terms hereof, deemed rejected under Section 365 of the Bankruptcy Code, hereof or terminated by the other party thereto thereto, or terminates or expires in accordance with by its terms terms, on or prior to the Designation Deadline Closing and is not continued or otherwise extended prior to or upon assumption and assignmentassumption, or (ii) subject constitutes an Employee Benefit Plan or an Insurance Policy. In addition, a Permit shall not be assigned to, or assumed by, Buyer to Section 2.8 below, the extent that such Permit requires a Necessary Consent of any Governmental Body Entity or other third party (other than, and in addition to, that of the Bankruptcy Court) in order to permit the assumption sale or transfer to Buyer of Sellers’ rights under such Permit, and no such Consent has been obtained prior to the Closing. If any such Consent shall not be obtained, or if any attempted assignment by Seller to Purchaser of such Contract or Permit would be ineffective or would impair Buyer’s rights under the such Contract or Permit in question so that Buyer would not in effect acquire the benefit of such rights, such Seller, to the maximum extent permitted by Law and the applicable Contract or Permit (and subject to any approval of the Bankruptcy Court that may be required), at Buyer’s sole cost and expense, and for a period not to exceed the Contract Designation Period, shall act as Buyer’s agent in order to obtain for Buyer the benefits thereunder and shall cooperate, to the maximum extent permitted by Law and the applicable Contract or Permit, with Buyer in any other reasonable arrangement designed to provide such benefits to Buyer; provided, however, that (i) Sellers shall not incur any costs associated with the obligations hereunder (including with respect to the Cure Amounts) and (ii) Sellers’ obligations hereunder shall only continue until the Chapter 11 Cases are closed or dismissed. Buyer shall reasonably cooperate with Sellers in order to enable Sellers to provide to Buyer the benefits contemplated by this Section 2.6(e). (f) From the date hereof until the expiration of the Contract Designation Period, the Sellers shall not seek Bankruptcy Court approval to reject any Assignable Contract unless and until such Assignable Contract is designated by the Buyer as an Excluded Contract or unless otherwise agreed to in writing by the Buyer. Additionally, the Sellers shall file with the Bankruptcy Court such motions or pleadings as may be appropriate or otherwise as may be reasonably requested by the Buyer to preserve the Sellers’ right or ability to assume and assign any of the Assignable Contracts (including pursuant to Section 365(d)(4) of the Bankruptcy Code) until the expiration of the Contract Designation Period. (g) Any Assignable Contract not designated by the Buyer as either an Assumed Contract or an Excluded Contract as of Closing shall constitute a “Designation Right Contract”. From and after the Closing Date until the date that is the earlier of (i) the entry of an order by the Bankruptcy Court dismissing the Chapter 11 Cases, converting the Chapter 11 Cases to a Chapter 7 of the Bankruptcy Code, or confirming a Chapter 11 plan of the Sellers, and (ii) seventy-five (75) days following the Closing Date (the “Contract Designation Period”), the Buyer shall have the right, by providing the Sellers with written notice, to amend Schedule 2.6(a) to designate any Designation Right Contract as (i) an Assumed Contract, or (ii) an Excluded Contract. Upon receipt of notice of the Buyer’s designation of a Designation Right Contract as an Assumed Contract in accordance with this Section 2.6(g) the Sellers shall promptly provide notice to the applicable non-Seller counterparty of such designation. Notwithstanding anything herein to the contrary, the Buyer shall pay and be solely responsible for all amounts that accrue and become due and owing under any Designation Right Contract from and after the Closing Date through the earlier to occur of (A) the expiration of the Contract Designation Period and (B) the date that is two (2) Business Days after written notice from the Buyer designating such Designation Right Contract as an Excluded Contract in accordance with this Section 2.6(g). Notwithstanding anything in this Agreement to the contrary, on the date any Designation Right Contract is designated an Assumed Contract pursuant to this Section 2.6(g), such Contract shall be deemed an Assumed Contract for all purposes under this Agreement and no further consideration shall be required to be paid by the Buyer for such Contract. Sellers shall cooperate in all respects with Buyer to provide a license or other means necessary to access any contract rights under any Designation Right Contract. (h) If any Contract requires the payment of Cure Amounts in order to be assumed pursuant to Section 365 of the Bankruptcy Code, and no such Necessary Consent has been obtained Cure Amounts are undetermined on the Closing Date because a non-Seller counterparty to such Contract proposed Cure Amounts in an amount that is different than the amount of Cure Amounts proposed by the Sellers and such difference will not be resolved prior to the Closing Date (each such Contract, a “Disputed Amount Contract”), then the Sellers shall provide the Buyer, not less than three (3) days prior to the Closing Date, with a schedule that lists each such Disputed Amount Contract and the amount of Cure Amounts that has been proposed by each such non-Seller counterparty; provided that the Sellers shall agree to any Cure Amounts for any Contract irrevocably designated by the Buyer in writing as an Assumed Contract if instructed to do so by the Buyer. If the Sellers, with the Consent of the Buyer, and the non-Seller counterparty with respect to any Disputed Amount Contract, are unable to agree on Cure Amounts for such Disputed Amount Contract within five (5) Business Days following the Closing Date, solely upon the Buyer’s written request, the Sellers shall, at the expense of the Buyer, seek to have the amount of Cure Amounts related to such Disputed Amount Contract determined by the Bankruptcy Court by the date that is no later than the end of the Contract Designation DeadlinePeriod. Upon final determination of such Cure Amounts, the Buyer may elect to redesignate such Assumed Contract as an Excluded Contract. If such Assumed Contract is not so redesignated, (i) the applicable Sellers shall promptly take such steps as are reasonably necessary, including, if applicable, promptly on delivery of no less than five (5) Business Days’ notice to the non-Seller counterparty to such Contract, to cause such Contract to be assumed by the applicable Seller and assigned to the Buyer, including by executing and delivering to the Buyer an Assignment and Assumption Agreement with respect to such Assumed Contract, and (ii) the Buyer shall pay the Cure Amounts with respect to such Assumed Contract either (A) concurrently with the Sellers’ assumption and assignment thereof to the Buyer or (B) as agreed in writing by the Buyer and the applicable counterparty to such Assumed Contract, and execute and deliver to the applicable Sellers an Assignment and Assumption agreement with respect to such Assumed Contract. Notwithstanding the foregoing, if, following the Closing, it is discovered that a Contract that should have been listed on Schedule 2.6(a) was not so listed, the Sellers shall, to the extent the Sellers are still debtors-in-possession in the Chapter 11 Cases, promptly following the discovery thereof, notify the Buyer in writing of any such Contract and the Sellers’ good faith estimate of the amount of Cure Amounts applicable to each such Contract (and if no Cure Amount is estimated to be applicable with respect to any such Contract, the amount of such Cure Amount shall be designated for such Contract as “$0.00”), and upon the Buyer’s request, take all actions reasonably required to assume and assign to the Buyer such Contract, provided that the Buyer pay the applicable Cure Amount. (i) The Parties agree and acknowledge that the covenants set forth in this Section 2.6 shall survive the Closing.

Assumption and Assignment of Contracts. (a) Promptly, but in any event within 20 days from the Effective Date, Sellers shall deliver to Purchaser (i) a true and complete list of all material Contracts used in the Business to which a Seller is a party, and within two party (other than Sellers’ insurance policies, confidentiality agreements, employment agreements, offer letters, severance agreements and consulting agreements), and within five twofive Business Days of Purchaser’s request, Sellers shall make available a true and copy of any such Contract, and (ii) Schedule 2.7(a), which schedule shall contain, with respect to each Contract, Sellers’ good-faith best estimate, as certified by the Chief Executive Officer or Chief Financial Officer of Sellers, of the amount of Cure Costs with respect to each such Contract; provided, however, that, from and after the date of delivery of Schedule 2.7(a) hereunder until 30 days from the Effective Date, Sellers may provide updates or supplements to Schedule 2.7(a) to include revised Cure Costs with respect to any Contract set forth therein, which updates shall amend Schedule 2.7(a) for all purposes hereof. (b) Notwithstanding anything in this Agreement to the contrary, Purchaser may, from time to time and in its sole and absolute discretion, amend or revise Schedule 2.7(a) in order to add or eliminate any Contract to or from such Schedule up to one Business Day prior to the Qualified Bid DeadlineDeadline12:00 p.m. Eastern Time on January 10, 2017. Automatically upon the addition of any Contract to Schedule 2.7(a) by Purchaser in accordance with the previous sentence, but subject to Purchaser’s right to remove any such Contract pursuant to this Section 2.7(b), such Contract shall be a Purchased Contract for all purposes of this Agreement. Automatically upon the deletion of any Contract from Schedule 2.7(a) by Purchaser in accordance with the first sentence of this Section 2.7(b), such Contract shall be an Excluded Asset for all purposes of this Agreement, and no Liabilities arising thereunder or relating thereto shall be assumed by Purchaser or be the obligation, liability or responsibility of Purchaser. If any Contract is added to the list of Purchased Contracts in accordance with this Section 2.7(b), then Sellers shall take such steps as are reasonably necessary (other than payment of any Cure Costs) to cause such Contract to be assumed and assigned to Purchaser as promptly as possible at or following the Closing. (c) The Sale Order shall provide for the assumption by Sellers, and the assignment to the extent legally capable of being assigned by Sellers to Purchaser, of the Purchased Contracts pursuant to Section 365 of the Bankruptcy Code on the terms and conditions set forth in the remainder of this Section 2.7. At Purchaser’s request, and at Purchaser’s sole cost and expense, Sellers shall reasonably cooperate from the Effective Date forward with Purchaser as reasonably requested by Purchaser Purchaser (i) to allow Purchaser to enter into an amendment of any Purchased Contract upon assumption of such Purchased Contract by Purchaser (and Sellers shall reasonably cooperate with Purchaser to the extent reasonably requested with Purchaser in negotiations with the counterparties thereof), or (ii) to otherwise amend any Purchased Contract to the extent such amendments would not adversely affect any Seller; provided that (A) in no event shall any such amendments be effective prior to the Closing and (B) Sellers shall not be required to enter into any such amendment if such amendment would result in an assumption by Seller of such Purchased Contract unless such Purchased Contract will be assigned to Purchaser at the time of such assumption. (d) Within four Business Days following the Bid Deadline, the applicable Seller shall file with the Bankruptcy Court and serve notice (an “Assumption Notice”) by first class mail on all non-debtor counterparties to any Contract included on Schedule 2.7(a) as of one Business Day prior to the Qualified Bid Deadline, and provide a copy of such Assumption Notice to Purchaser; provided that the assumption of any Contract on Schedule 2.7(a) will only occur at the Closing. At the Closing, Sellers shall assume and assign to Purchaser the Purchased Contracts, in each case, pursuant to Section 365 of the Bankruptcy Code and the Sale Order, subject to provision by Purchaser of adequate assurance as may be required under Section 365 of the Bankruptcy Code. The Cure Costs in respect of all of the Purchased Contracts shall be borne by Purchaser and shall not be the obligation, liability or responsibility of Sellers. Prior to the Sale Hearing, Sellers shall commence appropriate proceedings before the Bankruptcy Court and otherwise take all reasonably necessary actions in order to determine Cure Costs with respect to any Purchased Contract. (e) As part of the Sale Motion (or as necessary in one or more separate motions), Sellers shall request that, by virtue of any Seller providing notice (in accordance with the assumption and assignment procedures set forth in the Bidding Procedures Order) of its intent to assume and assign any Purchased Contract, the Bankruptcy Court deem any non-debtor party to such Purchased Contract that does not file an objection with the Bankruptcy Court during such notice period to have given any Necessary Consent to the assumption of the Purchased Contract by the relevant Seller and assignment to Purchaser. (f) Sellers shall use their respective commercially reasonable efforts to obtain one or more orders of the Bankruptcy Court, which order(s) shall be in form and substance reasonably acceptable to Purchaser, and shall reflect the terms and conditions set forth herein, to assume and assign the Purchased Contracts to Purchaser on the terms set forth in this Section 2.7. In the event Sellers are unable to obtain such an order for assumption and assignment of any such Purchased Contract to Purchaser, then the Parties shall use commercially reasonable efforts until the Designation Deadline to obtain, and to cooperate in obtaining, all Necessary Consents from Governmental Bodies and third parties necessary to assume and assign such Purchased Contracts to Purchaser, including, in the case of Purchaser, paying any applicable Cure Costs. (g) Subject to Section 2.8, to the extent that any Necessary Consent that is required to assume and assign to Purchaser any Purchased Contract is not obtained by the Closing Date, each Seller shall, with respect to each such Purchased Contract, from and after the Closing and until the earliest to occur of (i) the date on which such applicable Necessary Consent is obtained (which Necessary Consents the Parties shall use their reasonable best efforts, and cooperate with each other, to obtain promptly; provided, however, that none of the Parties or any of their respective Affiliates shall be required to pay any consideration therefor other than filing, recordation or similar fees, which shall be borne by Purchaser), and (ii) the date on which Purchaser delivers a written notice of exclusion of such Purchased Contract pursuant to this Section 2.7 or the Purchased Contract is deemed rejected under Section 365 of the Bankruptcy Code, use reasonable best efforts during the term of such Purchased Contract to (A) provide to Purchaser the benefits under such Purchased Contract, (B) cooperate in any reasonable and lawful arrangement, including holding such Contract in trust for Purchaser pending receipt of the Necessary Consent, designed to provide such benefits to Purchaser and (C) use its reasonable best efforts to enforce for the account of Purchaser any rights of such Seller under such Purchased Contract, including the right to elect to terminate such Purchased Contract in accordance with the terms thereof upon the written direction of Purchaser. Purchaser shall reasonably cooperate with Sellers in order to enable Sellers to provide to Purchaser the benefits contemplated by this Section 2.7(g). (h) Notwithstanding the foregoing, a Contract shall not be a Purchased Contract hereunder and shall not be assigned to, or assumed by, Purchaser to the extent that such Contract (i) is designated for exclusion by a Seller in accordance with the terms hereof, deemed rejected under Section 365 of the Bankruptcy Code, or terminated by the other party thereto or terminates or expires in accordance with its terms on or prior to the Designation Deadline and is not continued or otherwise extended prior to or upon assumption and assignment, or (ii) subject to Section 2.8 below, requires a Necessary Consent of any Governmental Body or other third party (other than, and in addition to, that of the Bankruptcy Court) in order to permit the assumption and assignment by Seller to Purchaser of such Contract pursuant to Section 365 of the Bankruptcy Code, and no such Necessary Consent has been obtained prior to the Designation Deadline.