Common use of Executory Contracts Clause in Contracts

Executory Contracts. (a) All Purchased Contracts (which, shall for the avoidance of doubt, include the Keen-Summit Agreement) shall be assumed by Sellers and assigned to Purchaser at the Closing. Any Contract of any Seller that is an Excluded Contract may be assumed or rejected by Sellers in Sellers’ sole discretion and shall be deemed an Excluded Asset. (b) As part of the Sale Motion, Sellers shall seek approval by the Bankruptcy Court of the sale, assumption and assignment by Sellers to Purchaser of all Purchased Contracts. Sellers shall timely serve the Sale Motion on all counterparties to all such Purchased Contracts along with a notice specifically stating that Sellers are or may be seeking the sale, assumption and assignment of such Purchased Contracts and shall notify such parties of the deadline for objecting to the Cure Costs. As part of the Sale Motion, Sellers shall seek authority to file with the Bankruptcy Court the list identifying the Purchased Contracts and the amounts necessary to cure defaults under each as determined by Sellers in accordance with Schedule 1.3(b) hereto, so as to enable any such party to object to the proposed Cure Costs and the Bankruptcy Court to determine such Cure Costs as promptly as reasonably possible. Purchaser may delete any Purchased Contract from Schedule 1.1(f) and Schedule 1.3(b) or add any Contract to Schedule 1.1(f) and Schedule 1.3(b) at any time no later than seven (7) days prior to the Closing Date, in each case by written notice to Sellers, but any such deletion or addition will not affect the Purchase Price. Notwithstanding anything herein to the contrary, if a Contract is added to Schedule 1.1(f) and/or Schedule 1.3(b) after the Sale Motion is filed, the assumption and assignment of any such Contract(s) shall not be a condition to Closing and may be effected on a post-Closing basis.

Executory Contracts. (a) All Purchased The Section 365 Contracts (which, shall for the avoidance of doubt, include the Keen-Summit Agreement) shall to be assumed by Sellers and assigned and sold to Purchaser at the ClosingClosing pursuant to section 365 of the Bankruptcy Code (the “Assumed Section 365 Contracts”) shall consist of (i) the Assumed Employment Agreements, (ii) all Customer Contracts not expressly excluded by Purchaser on or before the Bid Submission Deadline by written notice from time to time to Sellers given on or before such date, and (iii) if expressly designated by Purchaser on or before the Bid Submission Deadline as Assumed Section 365 Contracts by written notice from time to time to Sellers given on or before such date, the Facilities Leases for the Acquired Facilities described on Schedule 2.1(e), the Personal Property Leases described on Schedule 2.1(f), the Confidentiality Agreements, and other Non-Customer Contracts described on Schedule 2.1(h) (other than Assumed Employment Agreements). Any Contract of any Seller that is an Excluded Contract may All such exclusions and designations shall be assumed or rejected by Sellers made in Sellers’ Purchaser’s sole discretion discretion, and shall be deemed an subject to change by Purchaser from time to time by giving written notice thereof to Sellers, so long as any such changes are delivered prior to the Bid Submission Deadline. All exclusions and designations of Assumed Section 365 Contracts that Purchaser is entitled to exclude or designate hereunder shall be become final and binding upon Purchaser at 5:00 Eastern time on the Bid Submission Deadline. Notwithstanding the foregoing, (i) Purchaser shall not exclude any Assumed Employment Agreement, (ii) unless Purchaser expressly designates otherwise by written notice to Sellers given on or before the Bid Submission Deadline, the Facilities Leases for the Excluded AssetFacilities shall not be included among the Assumed Section 365 Contracts, and (iii) if at any time Sellers become aware of any Section 365 Contract not disclosed in writing to Purchaser on or before the Effective Date, Sellers shall promptly thereafter advise Purchaser of the existence, and provide Purchaser with a copy, of such Section 365 Contract and Purchaser thereupon shall have the right to request, by written notice to Sellers within five (5) days, that Sellers assume, assign and sell such Section 365 Contract to Purchaser, in which case Sellers shall use commercially reasonable efforts to assume, assign and sell such Section 365 Contract to Purchaser, as promptly as reasonably practicable, on the same terms and conditions as would be applicable under this Agreement to the Assumed Section 365 Contracts, it being understood that such assumption, assignment and sale shall not be required to take place on or before the Closing or constitute a condition precedent to Purchaser’s obligation to consummate the Contemplated Transactions. (b) As part of the Sale Motion, Sellers shall seek approval by the Bankruptcy Court of the sale, assumption and assignment by Sellers to Purchaser of (i) the Assumed Employment Agreements, (ii) all Purchased Customer Contracts, (iii) the Facilities Leases for the Acquired Facilities described on Schedule 2.1(e), (iv) the Personal Property Leases described on Schedule 2.1(f), (v) the Confidentiality Agreements, and (v) the other Non-Customer Contracts described on Schedule 2.1(h) (the “Scheduled Section 365 Contracts”). Sellers shall timely serve the Sale Motion on all counterparties to all such Purchased Scheduled Section 365 Contracts along with a notice specifically stating that Sellers are or may be seeking the sale, assumption and assignment of such Purchased the Scheduled Section 365 Contracts and shall notify such parties of the deadline for objecting to the Cure Costs. As part of amounts listed in Schedule 1.1, which deadline shall be not less than three (3) Business Days prior to the Sale Motion, Hearing. Sellers shall seek authority to file with the Bankruptcy Court Court, not later than ten (10) days prior to the Sale Hearing, the list identifying the Purchased Scheduled Section 365 Contracts and the amounts necessary to cure defaults under each of such Section 365 Contract as determined by Sellers in accordance with Schedule 1.3(b) hereto1.1, so as to enable any such party to object to the proposed Cure Costs Amounts and the Bankruptcy Court to determine such Cure Costs Amounts as promptly as reasonably possible. In cases in which Sellers are unable to establish that a default exists, the relevant Cure Amount shall be set at $0.00. The Sale Motion shall reflect Purchaser’s promise to perform from and after the Closing under the Assumed Section 365 Contracts, and such promise shall be the only adequate assurance of future performance necessary to satisfy the requirements of section 365 of the Bankruptcy Code in respect of the assignment to Purchaser may delete any Purchased Contract from Schedule 1.1(fof such Assumed Section 365 Contracts. (c) and Schedule 1.3(b) or add any Contract to Schedule 1.1(f) and Schedule 1.3(b) at any time no later than seven (7) days prior Anything contained in this Agreement to the Closing Datecontrary notwithstanding, (i) this Agreement shall not constitute an agreement to assign any Section 365 Contracts if, after giving effect to the provisions of sections 363 and 365 of the Bankruptcy Code, an attempted assignment thereof, without obtaining a Consent, would constitute a breach thereof or in each case by written notice to Sellers, but any such deletion or addition will not way negatively affect the Purchase Pricerights of Sellers or Purchaser, as the assignee of such Section 365 Contracts and (ii) no breach of this Agreement shall have occurred by virtue of such non-assignment. Notwithstanding anything herein If, after giving effect to the contraryprovisions of sections 363 and 365 of the Bankruptcy Code, if a Contract such Consent is added required but not obtained, Sellers shall, at Purchaser’s sole cost and expense, cooperate with Purchaser in any reasonable arrangement, including Purchaser’s provision of credit support, designed to Schedule 1.1(f) and/or Schedule 1.3(b) after provide for Purchaser the Sale Motion is filedbenefits and obligations of or under any of such Section 365 Contracts, including enforcement for the assumption and assignment benefit of Purchaser of any and all rights of Sellers against a third party thereto arising out of the breach or cancellation thereof by such Contract(s) third party. Any assignment to Purchaser of any Section 365 Contracts that shall, after giving effect to the provisions of sections 363 and 365 of the Bankruptcy Code, require the Consent of any third party for such assignment as aforesaid shall be made subject to such Consent being obtained. Any contract that would be a Section 365 Contract but is not assigned in accordance with the terms of this Section 6.10 shall not be considered a condition “Assumed Section 365 Contract” for purposes hereof unless and until such contract is assigned to Purchaser following the Closing Date upon receipt of the requisite Consents to assignment and may be effected on a post-Closing basisBankruptcy Court approval.

Executory Contracts. (a) All Purchased Contracts (which, shall for the avoidance of doubt, include the Keen-Summit Agreement) shall be assumed by Sellers and assigned to Purchaser at the Closing. Any Contract of any Seller that is an Excluded Contract may be assumed or rejected by Sellers in Sellers’ sole discretion and shall be deemed an Excluded Asset. (b) As part of the Sale Motion, Sellers shall seek approval by the Bankruptcy Court of the sale, assumption and assignment by Sellers to Purchaser of all Purchased Contracts. Sellers shall timely serve the Sale Motion on all counterparties to all such Purchased Contracts along with a notice specifically stating that Sellers are or may be seeking the sale, assumption and assignment of such Purchased Contracts and shall notify such parties of the deadline for objecting to the Cure Costs. As part of the Sale Motion, Sellers shall seek authority to file with the Bankruptcy Court the list identifying the Purchased Contracts and the amounts necessary to cure defaults under each as determined by Sellers in accordance with Schedule 1.3(b) hereto, so as to enable any such party to object to the proposed Cure Costs and the Bankruptcy Court to determine such Cure Costs as promptly as reasonably possible. Purchaser may delete any Purchased Contract from Schedule 1.1(f) and Schedule 1.3(b) or add any Contract to Schedule 1.1(f) and Schedule 1.3(b) at any time no later than seven (7) days prior to the Closing Date, in each case by written notice to Sellers, but any such deletion or addition will not affect the Purchase Price. Notwithstanding anything herein to the contrary, if a Contract is added to Schedule 1.1(f) and/or Schedule 1.3(b) after the Sale Motion is filed, the assumption and assignment of any such Contract(s) shall not be a condition to Closing and may be effected on a post-Closing basis.

Executory Contracts. (a) All Purchased Contracts (which, shall for the avoidance of doubt, include the Keen-Summit Agreement) shall be assumed by Sellers and assigned to Purchaser at the Closing. Any Contract of any Seller that is an Excluded Contract may be assumed or rejected by Sellers in Sellers’ sole discretion and shall be deemed an Excluded Asset. (b) As part of the Sale Motion, Sellers shall seek approval by the Bankruptcy Court of the sale, assumption and assignment by Sellers to Purchaser of all Purchased Contracts. Sellers shall timely serve the Sale Motion on all counterparties to all such Purchased Contracts along with a notice specifically stating that Sellers are or may be seeking the sale, assumption and assignment of such Purchased Contracts and shall notify such parties of the deadline for objecting to the Cure Costs. As part of the Sale Motion, Sellers shall seek authority to file with the Bankruptcy Court the list identifying the Purchased Contracts and the amounts necessary to cure defaults under each as determined by Sellers in accordance with Schedule 1.3(b) hereto, so as to enable any such party to object to the proposed Cure Costs and the Bankruptcy Court to determine such Cure Costs as promptly as reasonably possible. Purchaser may delete any Purchased Contract from Schedule 1.1(f) and Schedule 1.3(b) or add any Contract to Schedule 1.1(f) and Schedule 1.3(b) at any time no later than seven (7) days prior to the Closing Date, in each case by written notice to Sellers, but any such deletion or addition will not affect the Purchase Price. Notwithstanding anything herein to the contrary, if a Contract is added to Schedule 1.1(f) and/or Schedule 1.3(b) after the Sale Motion is filed, the assumption and assignment of any such Contract(s) shall not be a condition to Closing and may be effected on a post-Closing basis.Purchase