Common use of Assigned Contracts Clause in Contracts

Assigned Contracts. (a) With respect to each of the Assigned Contracts, the Seller shall be entitled to all revenues under such contracts relating to work performed by the Seller on or prior to the Effective Time, and the Buyer shall be entitled to all revenues under such contracts relating to work performed by the Buyer after the Effective Time. (b) Subject to the terms and conditions of this Agreement, the Buyer shall assume at the Effective Time, and shall perform and discharge in a due and timely manner from and after the Effective Time, all liabilities and obligations arising under the Assigned Contracts from and after the Effective Time, but excluding any liabilities and obligations for performance or breach occurring prior to the Effective Time. (c) Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute an agreement to assign or transfer any Assigned Contract, or any claim, right or benefit arising thereunder or resulting therefrom, if such an assignment or transfer or an attempt to make such an assignment or transfer without the consent or approval of a third party would constitute a breach or violation thereof or affect adversely the rights of the Seller thereunder; and no action under this Agreement shall constitute an assignment of any Assigned Contract in the absence of such consent or approval; provided, however, the Seller shall obtain all necessary consents to the transfer of the Construction Contract, including a consent and acknowledgment of the Builder, all in form, scope and substance reasonably satisfactory to the Buyer. In the event any such consent or approval is not obtained on or prior to the Closing Date, Seller will, at the Buyer’s request, cooperate with the Buyer in any lawful and commercially reasonable arrangement to provide that the Buyer shall receive the interest of the Seller in the benefits under any such applicable Assigned Contract, provided that the Buyer pays or satisfies all liabilities or obligations corresponding to any benefits enjoyed by the Buyer to the same extent that the Buyer would have been responsible therefore had such consent or approval been obtained as of the Closing Date.

Assigned Contracts. (a) With respect to each of the Assigned Contracts, the Seller shall be entitled to all revenues under such contracts relating to work performed by the Seller on or prior Notwithstanding anything herein to the Effective Time, and the Buyer shall be entitled to all revenues under such contracts relating to work performed by the Buyer after the Effective Time. (b) Subject to the terms and conditions of this Agreement, the Buyer shall assume at the Effective Time, and shall perform and discharge in a due and timely manner from and after the Effective Time, all liabilities and obligations arising under the Assigned Contracts from and after the Effective Time, but excluding any liabilities and obligations for performance or breach occurring prior to the Effective Time. (c) Notwithstanding anything to the contrary in this Agreementcontrary, this Agreement shall not constitute an agreement to assign any Assigned Contract if, notwithstanding the provisions of Sections 363 and 365 of the Bankruptcy Code, an attempted assignment thereof, without the consent of any other person party thereto, would constitute a breach thereof (unless the restrictions on assignment would be rendered ineffective pursuant to Sections 9-406 through 9-409, inclusive, of the Uniform Commercial Code, as amended). If, notwithstanding the provisions of Sections 363 and 365 of the Bankruptcy Code, such consent or transfer approval is required but not obtained, neither Sellers nor Buyer shall be in breach of this Agreement nor shall the Purchase Price be adjusted or the Closing delayed; provided that Sellers shall cooperate with Buyer without further consideration, in any reasonable arrangement designed to provide Buyer with all of the benefits of or under any such Assigned Contract, including but not limited to enforcement for the benefit of Buyer of any and all rights of Sellers against any person party to the Assigned Contract arising out of the breach or any claimcancellation thereof by such person; provided, right or benefit arising thereunder or resulting therefromhowever, that after Closing, Buyer shall be responsible for all payment and other obligations under, and for all costs of enforcing rights under, such Assigned Contract to the same extent as if such an Assigned Contract had been assigned. Any assignment or transfer or an attempt to make such an assignment or transfer without Buyer of any Assigned Contract that shall, notwithstanding the provisions of Sections 363 and 365 of the Bankruptcy Code, require the consent or approval of a third party would constitute a breach or violation thereof or affect adversely the rights of the Seller thereunder; and no action under this Agreement any person for such assignment as aforesaid shall constitute an assignment of any Assigned Contract in the absence of such consent or approval; provided, however, the Seller shall obtain all necessary consents be made subject to the transfer of the Construction Contract, including a consent and acknowledgment of the Builder, all in form, scope and substance reasonably satisfactory to the Buyer. In the event any such consent or approval is not obtained being obtained. (b) Buyer shall, on or prior to the Closing DateClosing, Seller will, cure any and all defaults under the Assigned Contracts that are required to be cured under the Bankruptcy Code. Sellers shall provide Purchaser with a schedule of proposed Cure Amounts at least three (3) Business Days prior to giving notice thereof to parties required to receive notice under the Buyer’s request, cooperate with the Buyer in any lawful Bankruptcy Code and commercially reasonable arrangement Bankruptcy Rules. (c) With respect to provide that the Buyer shall receive the interest of the Seller in the benefits under any such applicable each Assigned Contract, provided that the Buyer pays or satisfies all liabilities or obligations corresponding to any benefits enjoyed by the Buyer to the same extent that the Buyer would have been responsible therefore had such consent or approval been obtained as shall provide adequate assurance of the Closing Datefuture performance of such Assigned Contract by Buyer. Buyer shall take such actions as may be reasonably requested by Sellers to assist Sellers in obtaining the Bankruptcy Court’s entry of the Sale Order and any other order of the Bankruptcy Court reasonably necessary to consummate the transactions contemplated by this Agreement.

Assigned Contracts. (a) With respect to each of the Assigned Contracts, the Seller shall be entitled to all revenues under such contracts relating to work performed by the Seller on or prior Notwithstanding anything herein to the Effective Time, and the Buyer shall be entitled to all revenues under such contracts relating to work performed by the Buyer after the Effective Time. (b) Subject to the terms and conditions of this Agreement, the Buyer shall assume at the Effective Time, and shall perform and discharge in a due and timely manner from and after the Effective Time, all liabilities and obligations arising under the Assigned Contracts from and after the Effective Time, but excluding any liabilities and obligations for performance or breach occurring prior to the Effective Time. (c) Notwithstanding anything to the contrary in this Agreementcontrary, this Agreement shall not constitute an agreement to assign or transfer any Assigned ContractContract if, or any claimnotwithstanding the provisions of Sections 363 and 365 of the Bankruptcy Code, right or benefit arising thereunder or resulting therefroman attempted assignment thereof, if such an assignment or transfer or an attempt to make such an assignment or transfer without the consent or approval of a third any other person party thereto, would constitute a breach or violation thereof or affect adversely (unless the rights restrictions on assignment would be rendered ineffective pursuant to Sections 9-406 through 9- 409, inclusive, of the Seller thereunder; Uniform Commercial Code, as amended). If, notwithstanding the provisions of Sections 363 and no action under this Agreement shall constitute an assignment 365 of any Assigned Contract in the absence of Bankruptcy Code, such consent or approvalapproval is required but not obtained, neither Sellers nor Buyer shall be in breach of this Agreement nor shall the Purchase Price be adjusted; provided, however, the Seller shall obtain all necessary consents to the transfer of the Construction Contract, including a consent and acknowledgment of the Builder, all in form, scope and substance reasonably satisfactory to the Buyer. In the event provided that if any such consent or approval is required but not obtained and: (i) Buyer waives, to the extent applicable, any condition precedent with respect thereto, then Sellers shall cooperate with Buyer without further consideration, in any reasonable arrangement designed to provide Buyer with all of the benefits of or under any such Assigned Contract, including but not limited to enforcement for the benefit of Buyer of any and all rights of Sellers against any person party to the Assigned Contract arising out of the breach or cancellation thereof by such person; or (ii) (x) such Assigned Contract is a Non-MPV Contract or NWJ Contract, (y) Buyer has not then waived, to the extent applicable, any condition precedent with respect thereto, and (z) Sellers have cooperated with Buyer, without further consideration, in any reasonable arrangement designed to provide Buyer with all of the benefits of or under any such Non-MPV Contract or NWJ Contract, including but not limited to enforcement for the benefit of Buyer of any and all rights of Sellers against any person party to such Non-MPV Contract or NWJ Contract arising out of the breach or cancellation thereof by such person, then any applicable condition precedent with respect thereto shall be deemed satisfied and the Closing shall not be delayed as a result of the foregoing. (b) If the Closing occurs and the Sellers have implemented any reasonable arrangements pursuant to Section 6.2(a)(i) or Section 6.2(a)(ii), then, from and after the Closing, Buyer shall be responsible for all payment and other obligations under, and for all costs of enforcing rights under, the Contracts underlying such arrangements to the same extent as if such Contracts had been assigned (it being understood and agreed that, from and after the Closing, Sellers (and any of their successors or assigns, including any chapter 7 or chapter 11 trustee, any examiner with expanded powers, responsible person, liquidating trustee or similar estate representative) shall continue to cooperate with Buyer in any reasonable arrangement designed to provide Buyer with all of the benefits of or under any such Contracts (e.g., forwarding any commissions, fees or other payments made to Sellers after the Closing under or in respect of any such Contracts in accordance with the instructions provided by Buyer), including but not limited to enforcement for the benefit of Buyer of any and all rights of Sellers against any person party to such Contract arising out of the breach or cancellation thereof by such person). Any assignment to Buyer of any Assigned Contract that shall, notwithstanding the provisions of Sections 363 and 365 of the Bankruptcy Code, require the consent or approval of any person for such assignment as aforesaid shall be made subject to such consent or approval being obtained. (c) Notwithstanding anything in this Agreement to the contrary, (i) at any time prior to the date that is two Business Days prior to the Closing, Buyer will be entitled, in its sole discretion, to designate any Assigned Contract as an Excluded Asset by providing written notice thereof to Sellers and any contract so designated shall be an “Excluded Asset” (and not an “Assigned Contract”) for all purposes hereunder; and (ii) at any time prior to the date that is two Business Days prior to the Closing, Buyer will be entitled, in its sole discretion, to direct Sellers to add to the list of Assigned Contracts any contract used or held for use in or related to the Business to which any Seller is a party by providing written notice thereof to Sellers, and any contract so designated will constitute an Acquired Asset. Any Assigned Contract that is designated as an Excluded Asset in accordance with the foregoing sentence shall not be assumed and assigned to the Buyer hereunder; any Assigned Contract that is designated as an Acquired Asset in accordance with the foregoing sentence shall be assumed and assigned to the Buyer hereunder, subject to compliance with the requirements for supplemental notice and cure set forth in Paragraphs 23-26 of the Bidding Procedures Order. (d) Buyer shall, on or prior to the Closing DateClosing, Seller will, at pay all Limited Cure Amounts. Sellers shall cure any and all defaults under the Buyer’s request, cooperate with Assigned Contracts that are required to be cured under the Buyer Bankruptcy Code in any lawful and commercially reasonable arrangement excess of such Limited Cure Amounts. (e) With respect to provide that the Buyer shall receive the interest of the Seller in the benefits under any such applicable each Assigned Contract, provided that the Buyer pays or satisfies all liabilities or obligations corresponding to any benefits enjoyed by the Buyer to the same extent that the Buyer would have been responsible therefore had such consent or approval been obtained as shall provide adequate assurance of the Closing Datefuture performance of such Assigned Contract by Buyer. Buyer shall take such actions as may be reasonably requested by Sellers to assist Sellers in obtaining the Bankruptcy Court’s entry of the Sale Order and any other order of the Bankruptcy Court reasonably necessary to consummate the transactions contemplated by this Agreement.

Assigned Contracts. (a) With respect Seller shall use its commercially reasonable efforts to each obtain any consent, approval or amendment required to novate and/or assign any Contract included in the Acquired Assets, provided that Seller shall not be required to pay in excess of $100,000 per contract in connection therewith unless otherwise agreed by the parties. Seller shall keep Purchaser reasonably informed from time to time of the Assigned Contractsstatus of the foregoing and Purchaser shall cooperate with Seller in this regard. To the extent that the rights of Seller or any of its Subsidiaries under any Contract included in the Acquired Assets, or under any other Acquired Asset to be assigned to Purchaser hereunder, may not be assigned without the Seller shall be entitled to all revenues under such contracts relating to work performed by the Seller on or consent of another Person which has not been obtained prior to the Effective TimeClosing, and the Buyer shall be entitled to all revenues under such contracts relating to work performed by the Buyer after the Effective Time. (b) Subject to the terms and conditions of this Agreement, the Buyer shall assume at the Effective Time, and shall perform and discharge in a due and timely manner from and after the Effective Time, all liabilities and obligations arising under the Assigned Contracts from and after the Effective Time, but excluding any liabilities and obligations for performance or breach occurring prior to the Effective Time. (c) Notwithstanding anything to the contrary in this Agreement, neither this Agreement nor any of the Instruments of Transfer shall not constitute an agreement to assign the same if an attempted assignment would be unlawful. If any such consent has not been obtained or transfer if any Assigned Contractattempted assignment would be ineffective or would impair Purchaser's rights under the instrument in question so that Purchaser would not acquire the benefit of all such rights, then Seller or a Subsidiary thereof, as applicable, to the maximum extent permitted by Applicable Law and the instrument, shall act as Purchaser's agent in order to obtain for Purchaser the benefits thereunder and shall cooperate, to the maximum extent permitted by Applicable Law and the instrument, with Purchaser in any claim, right or benefit arising thereunder or resulting therefrom, if other reasonable arrangement designed to provide such benefits (and the corresponding burdens) to Purchaser (including by entering into an assignment or transfer or an attempt equivalent arrangement). Except with respect to make such an assignment or transfer without the consent or approval exercise of a third party would constitute a breach or violation thereof or affect adversely the rights under any such unassigned Contract at the direction of the Seller thereunder; and no action under this Agreement shall constitute an assignment of any Assigned Contract in the absence of such consent or approval; provided, howeverPurchaser, the Seller and its Subsidiaries shall obtain all necessary consents have no obligation to the transfer of the Construction Contractpay, including a consent and acknowledgment of the Builder, all in form, scope and substance reasonably satisfactory to the Buyer. In the event perform or discharge any obligations under any such consent or approval is not obtained on or prior unassigned Contract after the Closing. Any failure so to the Closing Date, Seller will, at the Buyer’s request, cooperate with the Buyer in any lawful and commercially reasonable arrangement to provide that the Buyer shall receive the interest of the Seller in obtain for Purchaser the benefits under any such applicable Assigned Contract, provided that Acquired Assets shall result in the Buyer pays or satisfies all liabilities or obligations corresponding payment by Seller to any benefits enjoyed by the Buyer Purchaser of an amount equal to the same extent that the Buyer would have been responsible therefore had value of such consent or approval been obtained as of the Closing DateAcquired Asset.

Assigned Contracts. (a) With respect to each To the best knowledge of Seller, Seller will receive no valid and subsisting contracts as part of the Purchased Assets, as further described in Section 3.06 of the Disclosure Schedules. If any contract(s) and/or contract right(s) are, in fact, included in the Collateral acquired by Seller pursuant to the NYUCC 9-620 foreclosure it intends to conduct, then such contracts and contract rights shall NOT be included in the Purchased Assets and shall not be assigned to and assumed by Buyer (the "Assigned Contracts") unless the Buyer expressly requests the same in a written request within 15 days after the Closing and Seller consents thereto, the Seller whereupon any such contract(s) and contract rights(s) shall be entitled assigned to all revenues under such contracts relating and assumed by Buyer. Buyer recognizes and acknowledges that [***] was substantially inactive in performing and managing its Business for more than the past one year and that certain events may have occurred or failed to work performed by the Seller on occur which may negatively have affected or prior to the Effective Time, and the Buyer shall be entitled to all revenues under such contracts relating to work performed by the Buyer after the Effective Time. (b) Subject to the terms and conditions of this Agreement, the Buyer shall assume at the Effective Time, and shall perform and discharge in a due and timely manner from and after the Effective Time, all liabilities and obligations arising under may affect the Assigned Contracts from and after the Effective Time, but excluding any liabilities and obligations for performance or breach occurring prior to the Effective Time. (c) Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute an agreement to assign or transfer any Assigned Contract, or any claim, right or benefit arising thereunder or resulting therefrom, if such an assignment or transfer or an attempt to make such an assignment or transfer without the consent or approval of a third party would constitute a breach or violation thereof or affect adversely the and/or rights of the Seller thereunder(as successor to [***] therein; and no action under this Agreement shall constitute an assignment of any Assigned Contract in the absence of such consent or approval; provided, however, the Seller shall obtain all necessary consents to the transfer of the Construction Contract, including a consent Buyer understands and acknowledgment of the Builder, all in form, scope and substance reasonably satisfactory to the Buyer. In the event will accept any such consent or approval is not obtained Assigned Contracts that it requests on or prior to the Closing Datean "as-is" basis, Seller will, at the Buyer’s request, cooperate with the Buyer in any lawful and commercially reasonable arrangement to provide that the Buyer shall receive the interest of the Seller in the benefits under any such applicable Assigned Contract, provided that the Buyer pays or satisfies all liabilities or obligations corresponding to any benefits enjoyed by the Buyer to the same extent that the Buyer would have been responsible therefore had such consent or approval been obtained their respective then existing condition(s) as of the Closing Date. In light of the fact that the Purchased Assets conveyed hereunder were formerly a part of the Collateral and that Seller has acquired such Collateral as forms a part of the Purchased Assets pursuant to Seller's rights to accept the same as a secured party under the NYUCC, including without limitation NYUCC 9-620, no discrepancy in the validity or enforceability of the Assigned Contracts from the state of facts represented by Seller herein or hereafter shall constitute or comprise, in whole or in part, a breach of any Seller 's warranty, representation or covenant hereunder, nor shall non-delivery to Buyer of any assignment of such an Assigned Contract be deemed a failure of Seller to make delivery of any Seller's Deliverable(s) required hereunder. To the knowledge of Seller, Section 3.06 of the Disclosure Schedules sets forth Seller's information about the possible type and kind of contract(s) and/or contract right(s), if any, that Seller may acquire pursuant to the said foreclosure . [***] Confidential treatment has been requested with respect to the omitted language. The omitted language has been separately filed with the Securities and Exchange Commission.

Assigned Contracts. (ai) With respect The parties acknowledge that the Software is sold or distributed by Seller pursuant to each the terms of the Assigned Contractscertain distribution agreements and consignment agreements between Seller and third party retailers (collectively, the Seller shall “Distribution Agreements”), including but not limited to those distribution agreements and consignment agreements set forth on Schedule 3(l) hereto. The parties have agreed that the Distribution Agreements will not be entitled assigned to all revenues under such contracts relating to work performed by the Seller on or prior to the Effective TimeBuyer at Closing; provided, and the however, that (A) Buyer shall be entitled to receive all revenues benefits relating to the Software under such contracts Distribution Agreements, including but not limited to all payments due to Seller for the sale or distribution of the Software thereunder, (B) Seller shall be responsible for performing all obligations of Seller relating to work performed by the Software under such Distribution Agreement, during the term of the Consulting Services Agreement between Seller and Buyer, and (C) upon the expiration or earlier termination of the Consulting Services Agreement, Seller shall use commercially reasonable efforts and shall cooperate with Buyer after in entering into new distribution or consignment agreements with such third party retailers, designed to provide Buyer the Effective Timebenefits provided to Seller under such Distribution Agreements. (bii) Subject Notwithstanding anything herein to the terms and conditions of this Agreementcontrary, the Buyer shall assume at the Effective Time, and shall perform and discharge in a due and timely manner from and after the Effective Time, all liabilities and obligations arising under transfer of the Assigned Contracts from shall be by assignment only, and after the Effective Time, but excluding any liabilities and obligations for performance or breach occurring prior to the Effective Time. (c) Notwithstanding anything to the contrary nothing in this Agreement, this Agreement shall not constitute an agreement to assign or transfer any Assigned Contract, or any claim, right or benefit arising thereunder or resulting therefrom, if such an assignment or transfer or be construed as an attempt to make such an assignment agree to assign any rights thereunder or transfer under any other Acquired Asset that by law or agreement is not assignable without the consent or approval of a third party would constitute a breach or violation thereof or affect adversely the rights of the Seller thereunder; other party or parties thereto or of any Governmental Authority, as the case may be, unless such consent shall be given. If and no action under this Agreement shall constitute an to the extent the assignment of any Assigned Contract requires the consent of another Person, then: (A) such Assigned Contract shall not be deemed assigned and shall constitute an assumed liability of Buyer until such consent is obtained; (B) the Parties shall use commercially reasonable efforts and shall cooperate with each other in the absence of seeking such consent or approvalentering into reasonable arrangements, designed to provide Buyer the benefits thereunder; provided, however, and (C) Buyer shall be obligated to perform and discharge the obligations of Seller shall obtain all necessary consents to the transfer of the Construction Contract, including a consent and acknowledgment of the Builder, all in form, scope and substance reasonably satisfactory to the Buyer. In the event any such consent or approval is not obtained on or prior to arising after the Closing Date, Seller will, at the Buyer’s request, cooperate with the Buyer in any lawful and commercially reasonable arrangement to provide that the Buyer shall receive the interest of the Seller in the benefits Date under any such applicable Assigned Contract, provided that the Buyer pays or satisfies all liabilities or obligations corresponding to any benefits enjoyed by the Buyer to the same extent that the Buyer would have been responsible therefore had Contract only after such consent or approval been obtained as of the Closing Dateis obtained.

Assigned Contracts. (a) With respect to each of the Assigned Contracts, the Seller shall be entitled to all revenues under such contracts relating to work performed by the Seller on or prior Notwithstanding anything herein to the Effective Time, and the Buyer shall be entitled to all revenues under such contracts relating to work performed by the Buyer after the Effective Time. (b) Subject to the terms and conditions of this Agreement, the Buyer shall assume at the Effective Time, and shall perform and discharge in a due and timely manner from and after the Effective Time, all liabilities and obligations arising under the Assigned Contracts from and after the Effective Time, but excluding any liabilities and obligations for performance or breach occurring prior to the Effective Time. (c) Notwithstanding anything to the contrary in this Agreementcontrary, this Agreement shall not constitute an agreement to assign or transfer any Assigned ContractContract if, or any claimnotwithstanding the provisions of Sections 363 and 365 of the Bankruptcy Code, right or benefit arising thereunder or resulting therefroman attempted assignment thereof, if such an assignment or transfer or an attempt to make such an assignment or transfer without the consent or approval of a third any other person party thereto, would constitute a breach or violation thereof or affect adversely (unless the rights restrictions on assignment would be rendered ineffective pursuant to Sections 9-406 through 9-409, inclusive, of the Seller thereunder; Uniform Commercial Code, as amended). If, notwithstanding the provisions of Sections 363 and no action under this Agreement shall constitute an assignment 365 of any Assigned Contract in the absence of Bankruptcy Code, such consent or approvalapproval is required but not obtained, neither Sellers nor Buyer shall be in breach of this Agreement nor shall the Purchase Price be adjusted; provided, however, the Seller shall obtain all necessary consents to the transfer of the Construction Contract, including a consent and acknowledgment of the Builder, all in form, scope and substance reasonably satisfactory to the Buyer. In the event provided that if any such consent or approval is required but not obtained and: (i) Buyer waives, to the extent applicable, any condition precedent with respect thereto, then Sellers shall cooperate with Buyer without further consideration, in any reasonable arrangement designed to provide Buyer with all of the benefits of or under any such Assigned Contract, including but not limited to enforcement for the benefit of Buyer of any and all rights of Sellers against any person party to the Assigned Contract arising out of the breach or cancellation thereof by such person; or (ii) (x) such Assigned Contract is a Non-MPV Contract or NWJ Contract, (y) Buyer has not then waived, to the extent applicable, any condition precedent with respect thereto, and (z) Sellers have cooperated with Buyer, without further consideration, in any reasonable arrangement designed to provide Buyer with all of the benefits of or under any such Non-MPV Contract or NWJ Contract, including but not limited to enforcement for the benefit of Buyer of any and all rights of Sellers against any person party to such Non-MPV Contract or NWJ Contract arising out of the breach or cancellation thereof by such person, then any applicable condition precedent with respect thereto shall be deemed satisfied and the Closing shall not be delayed as a result of the foregoing. (b) If the Closing occurs and the Sellers have implemented any reasonable arrangements pursuant to Section 6.2(a)(i) or Section 6.2(a)(ii), then, from and after the Closing, Buyer shall be responsible for all payment and other obligations under, and for all costs of enforcing rights under, the Contracts underlying such arrangements to the same extent as if such Contracts had been assigned (it being understood and agreed that, from and after the Closing, Sellers (and any of their successors or assigns, including any chapter 7 or chapter 11 trustee, any examiner with expanded powers, responsible person, liquidating trustee or similar estate representative) shall continue to cooperate with Buyer in any reasonable arrangement designed to provide Buyer with all of the benefits of or under any such Contracts (e.g., forwarding any commissions, fees or other payments made to Sellers after the Closing under or in respect of any such Contracts in accordance with the instructions provided by Buyer), including but not limited to enforcement for the benefit of Buyer of any and all rights of Sellers against any person party to such Contract arising out of the breach or cancellation thereof by such person). Any assignment to Buyer of any Assigned Contract that shall, notwithstanding the provisions of Sections 363 and 365 of the Bankruptcy Code, require the consent or approval of any person for such assignment as aforesaid shall be made subject to such consent or approval being obtained. (c) Notwithstanding anything in this Agreement to the contrary, (i) at any time prior to the date that is two Business Days prior to the Closing, Buyer will be entitled, in its sole discretion, to designate any Assigned Contract as an Excluded Asset by providing written notice thereof to Sellers and any contract so designated shall be an “Excluded Asset” (and not an “Assigned Contract”) for all purposes hereunder; and (ii) at any time prior to the date that is two Business Days prior to the Closing, Buyer will be entitled, in its sole discretion, to direct Sellers to add to the list of Assigned Contracts any contract used or held for use in or related to the Business to which any Seller is a party by providing written notice thereof to Sellers, and any contract so designated will constitute an Acquired Asset. Any Assigned Contract that is designated as an Excluded Asset in accordance with the foregoing sentence shall not be assumed and assigned to the Buyer hereunder; any Assigned Contract that is designated as an Acquired Asset in accordance with the foregoing sentence shall be assumed and assigned to the Buyer hereunder, subject to compliance with the requirements for supplemental notice and cure set forth in Paragraphs 23-26 of the Bidding Procedures Order. (d) Buyer shall, on or prior to the Closing DateClosing, Seller will, at pay all Limited Cure Amounts. Sellers shall cure any and all defaults under the Buyer’s request, cooperate with Assigned Contracts that are required to be cured under the Buyer Bankruptcy Code in any lawful and commercially reasonable arrangement excess of such Limited Cure Amounts. (e) With respect to provide that the Buyer shall receive the interest of the Seller in the benefits under any such applicable each Assigned Contract, provided that the Buyer pays or satisfies all liabilities or obligations corresponding to any benefits enjoyed by the Buyer to the same extent that the Buyer would have been responsible therefore had such consent or approval been obtained as shall provide adequate assurance of the Closing Datefuture performance of such Assigned Contract by Buyer. Buyer shall take such actions as may be reasonably requested by Sellers to assist Sellers in obtaining the Bankruptcy Court’s entry of the Sale Order and any other order of the Bankruptcy Court reasonably necessary to consummate the transactions contemplated by this Agreement.

Assigned Contracts. (a) With respect to each Schedule 4.8 hereto contains a complete and correct list in all material respects of the all Assigned Contracts, other than the Seller shall be entitled NJT Contract and the MMTA Contract, as of the date hereof. AAI has furnished or made available to all revenues under such contracts relating to work performed by the Seller on or prior ALSTOM complete and correct copies of each Assigned Contract. Each Assigned Contract is valid and binding upon AAI and, to the Effective Timeknowledge of AAI, each other party thereto (subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, and the Buyer shall be entitled to all revenues under such contracts relating to work performed by the Buyer after the Effective Time. (bgeneral principles of equity) and is in full force and effect. Subject to obtaining the terms Required Consents, each Assigned Contract is fully and conditions of this Agreement, the Buyer shall assume at the Effective Timefreely assignable to ALSTOM without penalty or other adverse consequences, and shall perform such assignment and discharge in a due and timely manner from and after the Effective Time, all liabilities and obligations arising under the Assigned Contracts from and after the Effective Time, but excluding any liabilities and obligations for performance or breach occurring prior to the Effective Time. (c) Notwithstanding anything to the contrary in this Agreement, other transactions contemplated by this Agreement shall do not and will not constitute an agreement event that would, with the passage of time or the giving of notice or both, without regard to assign or transfer any cure period, would (i) constitute a default by AAI under any Assigned ContractContract (or, to the knowledge of AAI, any other party thereto) (ii) permit modification, acceleration or any claim, right or benefit arising thereunder or resulting therefrom, if such an assignment or transfer or an attempt to make such an assignment or transfer without the consent or approval of a third party would constitute a breach or violation thereof or affect adversely the rights of the Seller thereunder; and no action under this Agreement shall constitute an assignment termination of any Assigned Contract by AAI (or, to the knowledge of AAI, any other party thereto) or (iii) result in the absence creation of such consent any Lien upon, or approval; providedany person obtaining any right to acquire, howeverany of the Transferred Assets or Assigned Contracts, and upon consummation of the Seller transactions contemplated by this Agreement, each Assigned Contract shall obtain all necessary consents continue in full force and effect without penalty or other adverse consequence. There is no default or claim of default by AAI (or, to the transfer knowledge of AAI, any other party thereto) under any provision of any Assigned Contract and no event has occurred which, with the passage of time or the giving of notice (or both), without regard to any cure period would (i) constitute a default by AAI (or, to the knowledge of AAI, any other party thereto) under any provision thereof, (ii) permit modification, acceleration or termination of any Assigned Contract by AAI (or, to the knowledge of AAI, any other party thereto) or (iii) result in the creation of any Lien upon, or any person obtaining any right to acquire, any of the Construction ContractTransferred Assets or Assigned Contracts, including in each case except as would not have a consent and acknowledgment of the BuilderMaterial Adverse Effect. Except as listed on Schedule 4.8, all in form4.9(b) or 4.11 hereto, scope and substance reasonably satisfactory to the Buyer. In the event any such consent or approval is not obtained on or prior to the Closing Date, Seller will, at the Buyer’s request, cooperate with the Buyer in any lawful and commercially reasonable arrangement to provide that the Buyer shall receive the interest of the Seller in the benefits there are no material unresolved disputes under any such applicable Assigned Contract, provided that the Buyer pays or satisfies all liabilities or obligations corresponding to any benefits enjoyed by the Buyer to the same extent that the Buyer would have been responsible therefore had such consent or approval been obtained as of the Closing Date.

Assigned Contracts. (a) With respect to Each Grantor shall fully perform all of its obligations under each of the Assigned Contracts, and shall enforce all of its rights and remedies thereunder; provided, however, that such Grantor shall not take any action or fail to take any action with respect to its Assigned Contracts which would cause the Seller termination of a material Assigned Contract. Without limiting the generality of this Section, such Grantor shall be entitled take all action necessary or appropriate to all revenues under such contracts relating to work performed by the Seller on or prior to the Effective Timepermit, and shall not take any action which would have any materially adverse effect upon, the Buyer full enforcement of all indemnification rights under its Assigned Contracts. Each Grantor shall be entitled notify Purchaser in writing, promptly after any Grantor becomes aware thereof, of any event or fact which could give rise to a material claim by it for indemnification under any of its Assigned Contracts, and shall diligently pursue such right and report to Purchaser on all revenues under such contracts relating to work performed by the Buyer after the Effective Timefurther developments with respect thereto. (b) Subject Upon the occurrence of (x) an Event of Default under Section 10.1(d) of the Purchase Agreement, (y) any other non-monetary Event of Default that remains uncured (if capable of being cured, it being understood that no cure period will apply if such Event of Default is incapable of being cured) for more than ten (10) Business Days, or (z) any monetary Event of Default that remains uncured for more than two (2) Business Days, and (with respect to each of the foregoing clauses (x) through (z)) until such Event of Default is no longer existing: (i) each Grantor shall remit directly to Purchaser for application to the terms Obligations in such order as Purchaser shall determine, all amounts received by such Grantor as indemnification or otherwise pursuant to its Assigned Contracts; (ii) Purchaser may directly enforce such right in its own or such Grantor’s name and conditions of this Agreementmay enter into such settlements or other agreements with respect thereto as Purchaser shall determine; and (iii) in any suit, the Buyer proceeding or action brought by Purchaser under any Assigned Contract for any sum owing thereunder or to enforce any provision thereof, such Grantor shall assume at the Effective Time, indemnify and shall perform and discharge in a due and timely manner hold Purchaser harmless from and after against all expense, loss or damage suffered by reason of any defense, setoff, counterclaims, recoupment, or reduction of liability whatsoever of the Effective Timeobligor thereunder arising out of a breach by such Grantor of any obligation thereunder or arising out of any other agreement, all liabilities and obligations arising under the Assigned Contracts indebtedness or liability at any time owing from and after the Effective Time, but excluding any liabilities and obligations for performance such Grantor to or breach occurring prior to the Effective Timein favor of such obligor or its successors. (c) Notwithstanding anything any provision hereof to the contrary in this Agreementcontrary, this Agreement each Grantor shall at all times remain liable to observe and perform all of its duties and obligations under its Assigned Contracts, and Purchaser’s exercise of any of its rights with respect to the Collateral shall not constitute an agreement release such Grantor from any of such duties and obligations. Purchaser shall not be obligated to assign perform or transfer fulfill any of such Grantor’s duties or obligations under its Assigned ContractContracts or to make any payment thereunder, or to make any inquiry as to the nature or sufficiency of any payment or property received by it thereunder or the sufficiency of performance by any party thereunder, or to present or file any claim, or to take any action to collect or enforce any performance, any payment of any amounts, or any claim, right or benefit arising thereunder or resulting therefrom, if such an assignment or transfer or an attempt to make such an assignment or transfer without the consent or approval of a third party would constitute a breach or violation thereof or affect adversely the rights of the Seller thereunder; and no action under this Agreement shall constitute an assignment delivery of any Assigned Contract in the absence of such consent or approval; provided, however, the Seller shall obtain all necessary consents to the transfer of the Construction Contract, including a consent and acknowledgment of the Builder, all in form, scope and substance reasonably satisfactory to the Buyer. In the event any such consent or approval is not obtained on or prior to the Closing Date, Seller will, at the Buyer’s request, cooperate with the Buyer in any lawful and commercially reasonable arrangement to provide that the Buyer shall receive the interest of the Seller in the benefits under any such applicable Assigned Contract, provided that the Buyer pays or satisfies all liabilities or obligations corresponding to any benefits enjoyed by the Buyer to the same extent that the Buyer would have been responsible therefore had such consent or approval been obtained as of the Closing Dateproperty.