Common use of Assignment of Contracts and Rights Clause in Contracts

Assignment of Contracts and Rights. Prior to the Closing, the Sellers shall use commercially reasonable efforts, and Purchaser shall reasonably cooperate with such efforts, to obtain at the earliest practicable date all Consents of third parties related to the consummation of the transactions contemplated hereby and by the Transaction Documents, and the Sellers shall provide to Purchaser copies of each such Consent as such Consents are obtained; provided, that Purchaser shall be under no obligation to pay any Person in order to obtain such Person’s consent. The Sellers shall be responsible for any reasonable out-of-pocket costs required to obtain the Consents for the Purchased Contracts; provided, that the Sellers shall be under no obligation to pay a third party in order to obtain such third party’s consent. To the extent that (a) the assignment of any such Purchased Contract requires the Consent of another party that is not obtained prior to Closing, (b) Sellers acknowledge in writing their inability to obtain the Consent prior to Closing, and (c) the Purchased Contract requiring such Consent is specified on Section 3.2(b)(v) of the Sellers’ Disclosure Schedule as a Consent that any of the Sellers must obtain, then (x) such Purchased Contract will not be transferred or assigned at Closing (each such Purchased Contract, a “Deferred Purchased Contract”) and (y) the Sellers will continue to use commercially reasonable efforts, and Purchaser shall reasonably cooperate with such efforts, to obtain any such Consent and/or remove any other impediments to the transfer or assignment of such Deferred Purchased Contract at the earliest practicable date and shall transfer or assign such Deferred Purchased Contract within one (1) Business Day after receipt of such Consent. Until the time of assignment of a Deferred Purchased Contract (each such period, a “Deferred Purchased Contract Period”), such Seller shall provide Purchaser the benefits of such Deferred Purchased Contract, cooperate in any reasonable and lawful arrangement designed to provide such benefits to Purchaser, and allow Purchaser to perform its obligations under the Assumed Liabilities, to the same extent as if the Deferred Purchased Contract were transferred or assigned to Purchaser at Closing. Each Party shall bear its own administrative expenses incurred in connection with any such arrangement during a Deferred Purchased Contract Period. Until the time of assignment or termination of a Deferred Purchased Contract, such Seller shall, at the request and for the account of Purchaser, and subject to Purchaser’s reasonable direction, enforce, at Purchaser’s expense, such Seller’s rights thereto or interests therein against other Persons. Nothing in this Section 5.8 shall affect Purchaser’s other rights under this Agreement and shall not affect the conditions to Purchaser’s obligations under Article VI. The provisions of this Section 5.8 shall not limit, modify or otherwise affect any representation or warranty of the Sellers under this Agreement.

Assignment of Contracts and Rights. Prior (a) Sellers shall deliver to Buyer a schedule that contains a substantially complete list of each Contract of Sellers and Sellers’ good faith estimate of the amount of Cure Costs applicable to each such Contract (the “Original Contract & Cure Schedule”) within thirty (30) days of the date of this Agreement, which Original Contract & Cure Schedule shall be served on the counterparties to each such Contract in accordance with the Bid Procedures Order. From the date on which such Original Contract & Cure Schedule is provided to Buyer through (and including) the date which is three (3) days prior to the ClosingClosing Date, the Sellers shall use commercially reasonable efforts, and Purchaser shall reasonably cooperate with such efforts, to obtain at the earliest practicable date all Consents of third parties related promptly following any changes to the consummation information set forth on the Original Contract & Cure Schedule (including any new Contracts to which any Seller becomes a party and any change in the Cure Cost of the transactions contemplated hereby and any Contract), or as reasonably requested by the Transaction DocumentsBuyer, and the Sellers shall provide to Purchaser copies of each Buyer with a schedule that updates and corrects such Consent information (as such Consents are obtained; providedschedule may be amended, that Purchaser shall be under no obligation supplemented or otherwise modified from time to pay any Person time prior to the Closing Date in order to obtain such Person’s consentaccordance with the terms of this Agreement, the “Contract & Cure Update Schedule”). The Sellers shall be responsible for the verification of all Cure Costs for each Purchased Contract and shall, in consultation with and subject to the consent of Buyer, use commercially reasonable efforts to establish proper Cure Costs for each Purchased Contract prior to the Closing Date. At any reasonable out-time but in any event no later than three (3) days prior to the Closing Date, Buyer may, by written notice to the Company, and following good faith consultation with the Company, add or eliminate any Contract (including any Lease) as a Purchased Contract (any such eliminated contract, a “Later Excluded Contract”). Automatically upon the addition of any Contract as a Purchased Contract in accordance with the first sentence of this Section 2.05(a), such Contract will constitute a Purchased Asset and will be assigned to Buyer under, and in accordance with the terms of-pocket costs required , this Agreement at Closing (and, if applicable, will cease to obtain constitute an Excluded Asset). Automatically upon the Consents for elimination of any Contract as a Purchased Contract in accordance with the first sentence of this Section 2.05(a), such Contract will constitute an Excluded Asset and will not be assigned to Buyer, and no Liabilities arising thereunder or relating thereto shall be assumed by Buyer. The Parties acknowledge and agree that there will be no reduction in, or increase to, the Purchase Price as a result of any addition or elimination of any Contract as a Purchased ContractsContract; provided, however, that the Sellers shall be under no obligation to pay a third party in order to obtain any such third party’s consent. To addition or elimination may increase or decrease (as applicable) the extent that (a) the assignment of any such Purchased Contract requires the Consent of another party that is not obtained prior to Closing, (b) Sellers acknowledge in writing their inability to obtain the Consent prior to Closing, and (c) the Purchased Contract requiring such Consent is specified on Section 3.2(b)(v) of the Sellers’ Disclosure Schedule as a Consent that any of the Sellers must obtain, then (x) such Purchased Contract will not be transferred or assigned at Closing (each such Purchased Contract, a “Deferred Purchased Contract”) and (y) the Sellers will continue to use commercially reasonable efforts, and Purchaser shall reasonably cooperate with such efforts, to obtain any such Consent and/or remove any other impediments to the transfer or assignment of such Deferred Purchased Contract at the earliest practicable date and shall transfer or assign such Deferred Purchased Contract within one (1) Business Day after receipt of such Consent. Until the time of assignment of a Deferred Purchased Contract (each such period, a “Deferred Purchased Contract Period”), such Seller shall provide Purchaser the benefits of such Deferred Purchased Contract, cooperate in any reasonable and lawful arrangement designed to provide such benefits to Purchaser, and allow Purchaser to perform its obligations under the Assumed Liabilities, to the same extent as if the Deferred Purchased Contract were transferred Assets or assigned to Purchaser at Closing. Each Party shall bear its own administrative expenses incurred in connection with any such arrangement during a Deferred Purchased Contract Period. Until the time of assignment or termination of a Deferred Purchased Contract, such Seller shall, at the request and for the account of Purchaser, and subject to Purchaser’s reasonable direction, enforce, at Purchaser’s expense, such Seller’s rights thereto or interests therein against other Persons. Nothing in this Section 5.8 shall affect Purchaser’s other rights under this Agreement and shall not affect the conditions to Purchaser’s obligations under Article VI. The provisions of this Section 5.8 shall not limit, modify or otherwise affect any representation or warranty of the Sellers under this AgreementExcluded Contracts.

Assignment of Contracts and Rights. Schedule 2.3.1 attached hereto is a list of all contracts of Seller that Buyer, in its sole discretion, shall have designated for assumption by a Seller and assignment to Buyer at Closing. Prior to conclusion of the Sale Approval Hearing, Buyer shall have the right, in its sole discretion, to delete contracts from Schedule 2.3.1. Each contract on the final version of Schedule 2.3.1 is referred to herein as an “Assigned Contract.” At the Closing: (i) Sellers shall, pursuant to the Sale Approval Order and the Assignment and Assumption Agreement, assume and assign to Buyer each of the Assigned Contracts; (ii) Buyer shall pay all Cure Amounts in respect of each of the Assigned Contracts that have been allowed by Final Order of the Bankruptcy Court prior to the Closing Date; and (iii) to the extent that the required Cure Amount for any Assigned Contract has not been (x) allowed by Final Order of the Bankruptcy Court prior to the Closing Date or (y) otherwise agreed to by Buyer and such Assigned Contract counterparty, the maximum Cure Amount claimed by each respective Assigned Contract counterparty or the lesser amount, if any, to which the Bankruptcy Court, by Final Order, has limited the Cure Amount which may subsequently be allowed to such Assigned Contract counterparty (a “Disputed Cure Amount”), shall be paid by Buyer into an escrow account with an escrow agent (the fees of which shall be paid by Buyer), to be agreed upon by the Buyer and Sellers shall use commercially reasonable efforts(collectively, the “Cure Escrow”), and Purchaser the allowed amount of all Disputed Cure Amounts shall reasonably be paid by the escrow agent from the Cure Escrow when and to the extent each such Disputed Cure Amount is allowed by Final Order of the Bankruptcy Court; provided that in the event any amounts remain in the Cure Escrow after the final resolution and payment of the disputed cure amounts that constituted Disputed Cure Amounts, as promptly as practicable, and in any event with two (2) Business Days after the final resolution thereof, such amounts shall be distributed automatically to Buyer, together with any interest or investment income thereon. Buyer shall cooperate in all reasonable respects in connection with such efforts, proceedings to obtain at an Order of the earliest practicable date all Consents of third parties related Bankruptcy Court to assign the consummation of Assigned Contracts to Buyer and otherwise gain approval for the transactions contemplated hereby and by this Agreement, including reasonable efforts to demonstrate “adequate assurance of Buyer’s future performance” of such Assigned Contracts to the full extent required for assignment thereof required by the Transaction Documents, and the Sellers shall provide to Purchaser copies of each such Consent as such Consents are obtained; provided, that Purchaser shall be under no obligation to pay any Person in order to obtain such Person’s consent. The Sellers shall be responsible for any reasonable out-of-pocket costs required to obtain the Consents for the Purchased Contracts; provided, that the Sellers shall be under no obligation to pay a third party in order to obtain such third party’s consent. To the extent that (a) the assignment of any such Purchased Contract requires the Consent of another party that is not obtained prior to Closing, (b) Sellers acknowledge in writing their inability to obtain the Consent prior to Closing, and (c) the Purchased Contract requiring such Consent is specified on Section 3.2(b)(v) of the Sellers’ Disclosure Schedule as a Consent that any of the Sellers must obtain, then (x) such Purchased Contract will not be transferred or assigned at Closing (each such Purchased Contract, a “Deferred Purchased Contract”) and (y) the Sellers will continue to use commercially reasonable efforts, and Purchaser shall reasonably cooperate with such efforts, to obtain any such Consent and/or remove any other impediments to the transfer or assignment of such Deferred Purchased Contract at the earliest practicable date and shall transfer or assign such Deferred Purchased Contract within one (1) Business Day after receipt of such Consent. Until the time of assignment of a Deferred Purchased Contract (each such period, a “Deferred Purchased Contract Period”), such Seller shall provide Purchaser the benefits of such Deferred Purchased Contract, cooperate in any reasonable and lawful arrangement designed to provide such benefits to Purchaser, and allow Purchaser to perform its obligations under the Assumed Liabilities, to the same extent as if the Deferred Purchased Contract were transferred or assigned to Purchaser at Closing. Each Party shall bear its own administrative expenses incurred in connection with any such arrangement during a Deferred Purchased Contract Period. Until the time of assignment or termination of a Deferred Purchased Contract, such Seller shall, at the request and for the account of Purchaser, and subject to Purchaser’s reasonable direction, enforce, at Purchaser’s expense, such Seller’s rights thereto or interests therein against other Persons. Nothing in this Section 5.8 shall affect Purchaser’s other rights under this Agreement and shall not affect the conditions to Purchaser’s obligations under Article VI. The provisions of this Section 5.8 shall not limit, modify or otherwise affect any representation or warranty of the Sellers under this AgreementBankruptcy Code.

Assignment of Contracts and Rights. Prior (a) On or before the date of this Agreement, Sellers have delivered to Buyer a schedule that contains a substantially complete list of each material Contract to which a Seller is a party or by which a Seller is bound, of Sellers and Sellers’ good faith estimate of the amount of Cure Costs applicable to each such Contract (the “Original Contract & Cure Schedule”). Within five (5) Business Days following the date hereof, Sellers shall deliver to Buyer an updated Original Contract & Cure Schedule that includes a substantially complete list of each Contract to which a Seller is a party or by which a Seller is bound, of Sellers’ good faith estimate of the amount of Cure Costs applicable to each such Contract and, subject to Buyer’s consent (which consent shall not be unreasonably withheld, conditioned or delayed), such updated schedule shall hereinafter be deemed to be the “Original Contract & Cure Schedule”. From the date on which such Original Contract & Cure Schedule is provided to Buyer through (and including) the date which is three (3) days prior to the ClosingClosing Date, the Sellers shall use commercially reasonable efforts, and Purchaser shall reasonably cooperate with such efforts, to obtain at the earliest practicable date all Consents of third parties related promptly following any changes to the consummation information set forth on the Original Contract & Cure Schedule (including any new Contracts to which any Seller becomes a party and any change in the Cure Cost of the transactions contemplated hereby and any Contract), or as reasonably requested by the Transaction DocumentsBuyer, and the Sellers shall provide to Purchaser copies of each Buyer with a schedule that updates and corrects such Consent information (as such Consents are obtained; providedschedule may be amended, that Purchaser shall be under no obligation supplemented or otherwise modified from time to pay any Person time prior to the Closing Date in order to obtain such Person’s consentaccordance with the terms of this Agreement, the “Contract & Cure Update Schedule”). The Sellers shall be responsible for any reasonable out-of-pocket costs required to obtain the Consents verification of all Cure Costs for the Purchased Contracts; provided, that the Sellers shall be under no obligation to pay a third party in order to obtain such third party’s consent. To the extent that (a) the assignment of any such Purchased each Contract requires the Consent of another party that is not obtained prior to Closing, (b) Sellers acknowledge in writing their inability to obtain the Consent prior to Closing, and (c) the Purchased Contract requiring such Consent is specified on Section 3.2(b)(v) of the Sellers’ Disclosure Schedule as a Consent that any of the Sellers must obtain, then (x) such Purchased Contract will not be transferred or assigned at Closing (each such Purchased Contract, a “Deferred Purchased Contract”) and (y) the Sellers will continue to use commercially reasonable efforts, and Purchaser shall reasonably cooperate with such efforts, to obtain any such Consent and/or remove any other impediments to the transfer or assignment of such Deferred Purchased Contract at the earliest practicable date and shall transfer or assign such Deferred Purchased Contract within one (1) Business Day after receipt of such Consent. Until the time of assignment of a Deferred Purchased Contract (each such period, a “Deferred Purchased Contract Period”), such Seller shall provide Purchaser the benefits of such Deferred Purchased Contract, cooperate in any reasonable and lawful arrangement designed to provide such benefits to Purchaser, and allow Purchaser to perform its obligations under the Assumed Liabilities, to the same extent as if the Deferred Purchased Contract were transferred or assigned to Purchaser at Closing. Each Party shall bear its own administrative expenses incurred in connection with any such arrangement during a Deferred Purchased Contract Period. Until the time of assignment or termination of a Deferred Purchased Contract, such Seller shall, at the request and for the account of Purchaser, in consultation with and subject to Purchaser’s the consent of Buyer, use their reasonable direction, enforce, at Purchaser’s expense, such Seller’s rights thereto or interests therein against other Persons. Nothing in this Section 5.8 shall affect Purchaser’s other rights under this Agreement and shall not affect best efforts to establish Cure Costs for each Contract prior to the conditions to Purchaser’s obligations under Article VI. The provisions of this Section 5.8 shall not limit, modify or otherwise affect any representation or warranty of the Sellers under this AgreementClosing Date.

Assignment of Contracts and Rights. Schedule 2.3.1 attached hereto is a list of all contracts of Seller that Buyer, in its sole discretion, shall have designated for assumption by a Seller and assignment to Buyer at Closing. Prior to conclusion of the Sale Approval Hearing, Buyer shall have the right, in its sole discretion, to delete contracts from Schedule 2.3.1. Each contract on the final version of Schedule 2.3.1 is referred to herein as an “Assigned Contract.” At the Closing: (i) Sellers shall, pursuant to the Sale Approval Order and the Assignment and Assumption Agreement, assume and assign to Buyer each of the Assigned Contracts; (ii) Buyer shall pay all Cure Amounts in respect of each of the Assigned Contracts that have been allowed by Final Order of the Bankruptcy Court prior to the Closing Date; and (iii) to the extent that the required Cure Amount for any Assigned Contract has not been (x) allowed by Final Order of the Bankruptcy Court prior to the Closing Date or (y) otherwise agreed to by Buyer and such Assigned Contract counterparty, the maximum Cure Amount claimed by each respective Assigned Contract counterparty or the lesser amount, if any, to which the Bankruptcy Court, by Final Order, has limited the Cure Amount which may subsequently be allowed to such Assigned Contract counterparty (a “Disputed Cure Amount”), shall be paid by Buyer into an escrow account with an escrow agent (the fees of which shall be paid by Xxxxx), to be agreed upon by the Buyer and Sellers shall use commercially reasonable efforts(collectively, the “Cure Escrow”), and Purchaser the allowed amount of all Disputed Cure Amounts shall reasonably be paid by the escrow agent from the Cure Escrow when and to the extent each such Disputed Cure Amount is allowed by Final Order of the Bankruptcy Court; provided that in the event any amounts remain in the Cure Escrow after the final resolution and payment of the disputed cure amounts that constituted Disputed Cure Amounts, as promptly as practicable, and in any event with two (2) Business Days after the final resolution thereof, such amounts shall be distributed automatically to Buyer, together with any interest or investment income thereon. Buyer shall cooperate in all reasonable respects in connection with such efforts, proceedings to obtain at an Order of the earliest practicable date all Consents of third parties related Bankruptcy Court to assign the consummation of Assigned Contracts to Buyer and otherwise gain approval for the transactions contemplated hereby and by this Agreement, including reasonable efforts to demonstrate “adequate assurance of Buyer’s future performance” of such Assigned Contracts to the full extent required for assignment thereof required by the Transaction Documents, and the Sellers shall provide to Purchaser copies of each such Consent as such Consents are obtained; provided, that Purchaser shall be under no obligation to pay any Person in order to obtain such Person’s consent. The Sellers shall be responsible for any reasonable out-of-pocket costs required to obtain the Consents for the Purchased Contracts; provided, that the Sellers shall be under no obligation to pay a third party in order to obtain such third party’s consent. To the extent that (a) the assignment of any such Purchased Contract requires the Consent of another party that is not obtained prior to Closing, (b) Sellers acknowledge in writing their inability to obtain the Consent prior to Closing, and (c) the Purchased Contract requiring such Consent is specified on Section 3.2(b)(v) of the Sellers’ Disclosure Schedule as a Consent that any of the Sellers must obtain, then (x) such Purchased Contract will not be transferred or assigned at Closing (each such Purchased Contract, a “Deferred Purchased Contract”) and (y) the Sellers will continue to use commercially reasonable efforts, and Purchaser shall reasonably cooperate with such efforts, to obtain any such Consent and/or remove any other impediments to the transfer or assignment of such Deferred Purchased Contract at the earliest practicable date and shall transfer or assign such Deferred Purchased Contract within one (1) Business Day after receipt of such Consent. Until the time of assignment of a Deferred Purchased Contract (each such period, a “Deferred Purchased Contract Period”), such Seller shall provide Purchaser the benefits of such Deferred Purchased Contract, cooperate in any reasonable and lawful arrangement designed to provide such benefits to Purchaser, and allow Purchaser to perform its obligations under the Assumed Liabilities, to the same extent as if the Deferred Purchased Contract were transferred or assigned to Purchaser at Closing. Each Party shall bear its own administrative expenses incurred in connection with any such arrangement during a Deferred Purchased Contract Period. Until the time of assignment or termination of a Deferred Purchased Contract, such Seller shall, at the request and for the account of Purchaser, and subject to Purchaser’s reasonable direction, enforce, at Purchaser’s expense, such Seller’s rights thereto or interests therein against other Persons. Nothing in this Section 5.8 shall affect Purchaser’s other rights under this Agreement and shall not affect the conditions to Purchaser’s obligations under Article VI. The provisions of this Section 5.8 shall not limit, modify or otherwise affect any representation or warranty of the Sellers under this AgreementBankruptcy Code.

Assignment of Contracts and Rights. Prior (a) On or before the date of this Agreement, Sellers have delivered to Buyer a schedule that contains a substantially complete list of each material Contract to which a Seller is a party or by which a Seller is bound, of Sellers and Sellers’ good faith estimate of the amount of Cure Costs applicable to each such Contract (the “Original Contract & Cure Schedule”). On or before the date of this Agreement, Sellers shall deliver to Buyer an updated Original Contract & Cure Schedule that includes a substantially complete list of each Contract to which a Seller is a party or by which a Seller is bound, of Sellers’ good faith estimate of the amount of Cure Costs applicable to each such Contract and, subject to Buyer’s consent (which consent shall not be unreasonably withheld, conditioned or delayed), such updated schedule shall hereinafter be deemed to be the “Original Contract & Cure Schedule”. From the date on which such Original Contract & Cure Schedule is provided to Buyer through (and including) the date which is three (3) days prior to the ClosingClosing Date, the Sellers shall use commercially reasonable efforts, and Purchaser shall reasonably cooperate with such efforts, to obtain at the earliest practicable date all Consents of third parties related promptly following any changes to the consummation information set forth on the Original Contract & Cure Schedule (including any new Contracts to which any Seller becomes a party and any change in the Cure Cost of the transactions contemplated hereby and any Contract), or as reasonably requested by the Transaction DocumentsBuyer, and the Sellers shall provide to Purchaser copies of each Buyer with a schedule that updates and corrects such Consent information (as such Consents are obtained; providedschedule may be amended, that Purchaser shall be under no obligation supplemented or otherwise modified from time to pay any Person time prior to the Closing Date in order to obtain such Person’s consentaccordance with the terms of this Agreement, the “Contract & Cure Update Schedule”). The Sellers shall be responsible for any reasonable out-of-pocket costs required to obtain the Consents verification of all Cure Costs for the Purchased Contracts; provided, that the Sellers shall be under no obligation to pay a third party in order to obtain such third party’s consent. To the extent that (a) the assignment of any such Purchased each Contract requires the Consent of another party that is not obtained prior to Closing, (b) Sellers acknowledge in writing their inability to obtain the Consent prior to Closing, and (c) the Purchased Contract requiring such Consent is specified on Section 3.2(b)(v) of the Sellers’ Disclosure Schedule as a Consent that any of the Sellers must obtain, then (x) such Purchased Contract will not be transferred or assigned at Closing (each such Purchased Contract, a “Deferred Purchased Contract”) and (y) the Sellers will continue to use commercially reasonable efforts, and Purchaser shall reasonably cooperate with such efforts, to obtain any such Consent and/or remove any other impediments to the transfer or assignment of such Deferred Purchased Contract at the earliest practicable date and shall transfer or assign such Deferred Purchased Contract within one (1) Business Day after receipt of such Consent. Until the time of assignment of a Deferred Purchased Contract (each such period, a “Deferred Purchased Contract Period”), such Seller shall provide Purchaser the benefits of such Deferred Purchased Contract, cooperate in any reasonable and lawful arrangement designed to provide such benefits to Purchaser, and allow Purchaser to perform its obligations under the Assumed Liabilities, to the same extent as if the Deferred Purchased Contract were transferred or assigned to Purchaser at Closing. Each Party shall bear its own administrative expenses incurred in connection with any such arrangement during a Deferred Purchased Contract Period. Until the time of assignment or termination of a Deferred Purchased Contract, such Seller shall, at the request and for the account of Purchaser, in consultation with and subject to Purchaser’s the consent of Buyer, use their reasonable direction, enforce, at Purchaser’s expense, such Seller’s rights thereto or interests therein against other Persons. Nothing in this Section 5.8 shall affect Purchaser’s other rights under this Agreement and shall not affect best efforts to establish Cure Costs for each Contract prior to the conditions to Purchaser’s obligations under Article VI. The provisions of this Section 5.8 shall not limit, modify or otherwise affect any representation or warranty of the Sellers under this AgreementClosing Date.