Common use of Contract Designation Clause in Contracts

Contract Designation. (a) Except as otherwise provided in the Chapter 11 Plan or other agreement or document entered into in connection with the Chapter 11 Plan, as of and subject to the occurrence of the effective date of the Chapter 11 Plan (the “Effective Date”), all Contracts (including, for the avoidance of doubt, any insurance policies and binders that are Transferred Assets and any settlement agreements and leases with respect to real property) related to the Transferred Assets and/or the Business or otherwise used, or held for use, in connection with the Transferred Assets, Assumed Liabilities and/or the Business, in each case excluding any Contracts in relation to the business, assets and properties of the Specified Subsidiaries (each, an “Executory Contract”) shall be deemed Transferred Contracts unless such contract or lease (i) was previously rejected by the Debtors pursuant to a Final Order of the Bankruptcy Court; or (ii) is identified for rejection on the Rejection Schedule (as defined in the Chapter 11 Plan). (b) The Endo Companies previously served the Cure Notice to all counterparties to any Executory Contracts which described the monetary amounts that must be paid and nonmonetary obligations that otherwise must be satisfied, including pursuant to Section 365(b)(1)(A) and (B) of the Bankruptcy Code, in order for the Endo Companies to assume or assume and assign, as applicable, the Transferred Contracts to the Buyers or the Specified Subsidiaries (as applicable) pursuant to this Agreement (“Undisputed Cure Claims”). To the extent a counterparty to an Executory Contract objects or otherwise challenges the Undisputed Cure Claims determined by the Endo Companies and asserts that a different monetary amount must be paid and/or nonmonetary obligations otherwise must be satisfied, including pursuant to Section 365(b)(1)(A) and (B) of the Bankruptcy Code, in order for the Endo Companies to assume or assume and assign, as applicable, such Executory Contract to the applicable Buyer or the Specified Subsidiaries (as applicable) pursuant to this Agreement, the difference between the Undisputed Cure Claims determined by the Endo Companies and such amounts and/or nonmonetary obligations determined by such counterparty shall be referred to as the “Disputed Cure Claims.” The procedures governing Disputed Cure Claims are set forth in Section 7.3 of the Chapter 11 Plan. (c) No later than five (5) Business Days prior to the Effective Date, the Buyers may, in their sole discretion, designate in writing any Executory Contract as a Transferred Contract to be assumed or assumed and assigned, as applicable, to the Buyers pursuant to this Agreement or designate in writing any previously designated Transferred Contract as an Excluded Contract; provided, that, with respect to any newly designated Transferred Contracts, the Endo Companies shall promptly (x) file and serve notice on the applicable counterparties setting forth the Endo Companies’ intention to assume or assume and assign, as applicable, such Executory Contracts to the applicable Buyer or Buyers or the Specified Subsidiaries (as applicable) (which notice shall include the applicable proposed Cure Claims) and (y) file or otherwise make any necessary motions before the Bankruptcy Court seeking approval of such assumption and assignment. Upon request of the Buyers, the Endo Companies will use commercially reasonable efforts to provide the Buyers with (i) copies of each Contract and (ii) information as to the Liabilities under each Contract sufficient for the Buyer to make a reasonably informed assessment whether to designate any Contract as an Excluded Asset. For clarity, subject to Section 2.6(b), any Executory Contract not designated by the Buyers as a Transferred Contract pursuant to this Section 2.6(c) shall be automatically designated as an Excluded Contract. Subject to the occurrence of the Effective Date and consummation of the Closing, the Sellers shall pay the Cure Claims (including the Undisputed Cure Claims) and cure any and all other undisputed defaults and breaches under the Transferred Contracts so that such Transferred Contracts may be assumed or assumed and assigned, as applicable, by the applicable Endo Company and assigned to the applicable Buyer or Buyers or the Specified Subsidiaries (as applicable) in accordance with the provisions of Section 365 of the Bankruptcy Code and this Agreement; provided that, (A) the Buyers shall pay any Disputed Cure Claim associated with the assumption of a Transferred Contract that is an Executory Contract pursuant to an Order of the Bankruptcy Court or mutual agreement between the Endo Companies, the Buyers and the counterparty to the applicable Transferred Contract which has not been resolved as of the Closing, and (B) such payment shall, in the case of any Cure Claim, be made as soon as reasonably practicable following the Closing and, in the case of any Disputed Cure Claim, pursuant to an Order of the Bankruptcy Court provided, that the parties do not reach a negotiated settlement regarding such Disputed Cure Claim. To the extent any Transferred Contract is subject to a Cure Claim, the Sellers shall pay such Cure Claim directly to the applicable counterparty. Notwithstanding anything in this Agreement to the contrary, the Buyers shall only assume, and shall only be responsible for, Contracts designated by them as Transferred Contracts. (d) Notwithstanding the foregoing, an Executory Contract shall not be a Transferred Contract hereunder and shall not be assigned to, or assumed by the Sellers and assigned to the applicable Buyer or the Specified Subsidiaries (as applicable) to the extent that such Executory Contract (i) expires by its terms (and is not extended) on or prior to such time as it is to be assumed by the Sellers and assigned to the applicable Buyer or the Specified Subsidiaries (as applicable) as a Transferred Contract hereunder or (ii) requires any (x) approval, consent, ratification, permission, waiver or authorization, or an Order of the Bankruptcy Court that deems or renders the foregoing unnecessary (each of the foregoing, a “Consent”) or (y) Permit (other than, and in addition to, that of the Bankruptcy Court), in the case of each of (x) and (y), in order to permit the sale or transfer to the applicable Buyer of the applicable Seller’s rights under such Executory Contract in accordance with applicable Law, and such Consent or Permit has not been obtained. In the event that any Executory Contract that would otherwise have been assigned to the Buyers is deemed not to be assigned pursuant to clause (ii) of the first sentence of this Section 2.6(d), the Closing shall, subject to the satisfaction of the conditions set forth in Article VII, nonetheless take place subject to the terms and conditions set forth herein, and, thereafter, through the earliest of (w) such time as such Consent or Permit is obtained, (x) the expiration of the term of such Executory Contract in accordance with its current terms, (y) the execution of a replacement Executory Contract by the Buyers, and (z) the end of the Wind-Down Period, the Sellers and the Buyers shall (A) use commercially reasonable efforts to secure such Consent or Permit as promptly as practicable after the Closing and (B) cooperate in good faith in any lawful and commercially reasonable arrangement proposed by the Buyers, including subcontracting, licensing, or sublicensing to the Buyers any or all of any Seller’s rights and obligations with respect to any such Executory Contract, under which (1) the Buyers shall receive the claims, rights, remedies and benefits under, or arising pursuant to, the terms of such Executory Contract with respect to which the Consent and/or Permit has not been obtained and (2) subject to receiving any such claims, rights, remedies and benefits, the Buyers shall thereafter assume and bear all Assumed Liabilities with respect to such Executory Contract from and after the Closing (as if such Executory Contract had been transferred to the Buyers as of the Closing) in accordance with this Agreement (including by means of any subcontracting, sublicensing or subleasing arrangement). Upon satisfying any requisite Consent or Permit requirement applicable to such Executory Contract after the Closing, such Executory Contract shall promptly be transferred and assigned to the applicable Buyer in accordance with the terms of this Agreement, and the Bankruptcy Code, and otherwise without any further additional consideration. Without limitation of the foregoing, prior to the Closing, the Endo Companies shall cooperate with the Buyers in connection with obtaining any Consent, Permit, Regulatory Approval, including by providing the Buyers with reasonable access to and facilitating discussions with the applicable counterparties (provided that the Buyers shall provide Sellers a reasonable opportunity to consult with the Buyers, and, if reasonably practicable, an opportunity to be present (but not participate) at any meeting) in respect of such Consents, Permit or Regulatory Approval and shall use commercially reasonable efforts to assist the Buyers with obtaining such Consents, Permits or Regulatory Approvals as promptly as practicable after the date hereof and prior to the Closing. (e) Notwithstanding anything to the contrary set forth herein, with respect to any Consent, Permit or Regulatory Approval reasonably required for the Buyers to operate the Business in the Ordinary Course of Business, the Endo Companies shall use commercially reasonable efforts to obtain, sell, assign, transfer, convey or make or cause to be obtained, sold, assigned, transferred, conveyed or made, by or for the benefit of the Buyers, any such Consent, Permit and/or Regulatory Approval or filing or application therefore, as required pursuant to Law, as reasonably required for the Buyers to continue the Business after the Closing in the Ordinary Course of Business, and the Buyers shall provide reasonable cooperation to the Endo Companies in connection therewith as reasonably requested by Sellers, in each case to the extent obtaining or making any such Consent, Permit or Regulatory Approval or filing or application therefor is allowed to occur prior to the Closing pursuant to applicable Law. If any such Consent, Permit or Regulatory Approval is not obtained prior to the Closing, then, until the earlier of such time as (i) such Consent, Permit or Regulatory Approval is obtained by the Endo Companies and transferred (or permitted to be transferred) to the Buyers or (ii) the Buyers separately obtain any such Consent, Permit or Regulatory Approval (sufficient to conduct the business of the Endo Companies in the Ordinary Course of Business), the Sellers shall continue to use commercially reasonable efforts to obtain, or cause to be obtained, and transfer to the Buyers such Consent, Permit or Regulatory Approval, and the Buyers shall provide reasonable cooperation to Sellers, subject to any approval of the Bankruptcy Court that may be required. Upon obtaining the relevant Consent, Permit or Regulatory Approval, each Seller, as applicable, shall, promptly sell, convey, assign, transfer and deliver to the Buyers such Consent, Permit or Regulatory Approval for no additional consideration. All reasonable and documented out-of-pocket costs and expenses payable prior to Closing in connection with transferring any Consents, Permits or Regulatory Approvals as contemplated by this Agreement shall be borne by the Buyers. Notwithstanding anything contained herein, it is acknowledged and agreed that any obligations hereunder of the Endo Companies in respect of the Consents, Permits or Regulatory Approvals procured or required for the Business of the Indian Subsidiaries and the Indian HoldCo shall be: (A) limited to providing to the Buyers information, documents and such other cooperation as may be reasonably requested by the Buyers; and (B) only in respect of Consents, Permits or Regulatory Approvals, which pursuant to Law, require any action to, approval of, or notification to, the relevant Governmental Authority in relation to acquisition of the Transferred Equity Interests by the Buyers.

Contract Designation. (a) Except as otherwise provided in No later than three (3) Business Days following the Chapter 11 Plan or other agreement or document entered into in connection with entry of the Chapter 11 PlanSales Procedures Order, as of and subject the Sellers shall deliver to the occurrence Buyer a true, correct and complete, to the Knowledge of the effective date of the Chapter 11 Plan Sellers, list (the “Effective Date”), Executory Contract List“) of all Contracts (including, including for the avoidance of doubt, any insurance policies and binders that are Transferred Assets and any settlement agreements and leases with respect to real propertyagreements) related to the Transferred Assets and/or the Business or otherwise used, or held for use, in connection with the Transferred Assets, Assumed Liabilities Assets and/or the Business, in each case excluding any Contracts in relation to the business, assets and properties of the Specified Subsidiaries Business (each, an “Executory Contract”) “). The Executory Contract List shall be deemed Transferred Contracts unless such contract or lease describe, in reasonable detail, (i) was previously rejected by the Debtors pursuant to a Final Order of the Bankruptcy Court; or (ii) is identified for rejection on the Rejection Schedule (as defined in the Chapter 11 Plan). (b) The Endo Companies previously served the Cure Notice to all counterparties to any Executory Contracts which described the monetary amounts that must be paid and nonmonetary obligations that otherwise must be satisfied, including pursuant to Section 365(b)(1)(A) and (B) of the Bankruptcy Code, in order for the Endo Companies Buyer to assume or assume and assign, as applicable, the Transferred Contracts to the Buyers or the Specified Subsidiaries (as applicable) pursuant to this Agreement (“Undisputed Cure Claims”“), and (ii) in the case of any Designated Contract, a good faith estimate of the applicable Designated Contract Make-Whole Amount for such Contract. The Sellers will use commercially reasonable efforts to provide the Buyer with (i) copies of each such Contract and (ii) information as to the Liabilities under each such Contract sufficient for the Buyer to make a reasonably informed assessment whether to designate such Contracts as Excluded Assets. (b) Within one Business Day of entry of the Sale Procedures Order, or as soon as reasonably practicable thereafter, the Sellers shall file with the Court, cause to be published on the case website, and serve on all necessary parties a copy of the Executory Contract List. The Executory Contract List shall identify the Undisputed Cure Claim, if any, associated with each Contract listed therein, shall identify the Buyer, and shall indicate that the Buyer will, if necessary, provide evidence of adequate assurance of future performance at the Sale Hearing. Any counterparty to an Executory Contract included on the Executory Contract List shall have the time period prescribed by the Sale Procedures Order, or, if no such time period is given, a reasonable amount of time prior to the Auction, to object to the Cure Claims listed on the Executory Contract List and to adequate assurance of future performance. (c) To the extent a counterparty to an Executory Contract objects or otherwise challenges the Undisputed Cure Claims determined by the Endo Companies Sellers and asserts that a different monetary amount that must be paid and/or nonmonetary obligations that otherwise must be satisfied, including pursuant to Section 365(b)(1)(A) and (B) of the Bankruptcy Code, in order for the Endo Companies Buyer to assume or assume and assign, as applicable, such Executory Contract to the applicable Buyer or the Specified Subsidiaries (as applicable) pursuant to this Agreement, the difference between the Undisputed Cure Claims determined by the Endo Companies Sellers and such amounts and/or nonmonetary obligations determined by such counterparty shall be referred to as the “Disputed Cure Claims.” The procedures governing Disputed Cure Claims are set forth in Section 7.3 of the Chapter 11 Plan.” (cd) No later than five At any time at least three (53) Business Days prior to before the Effective date of the Auction (the “Pre-Auction Designation Date“), the Buyers may, in their sole discretion, Buyer may designate in writing any Executory Contract as a Transferred Contract to be assumed or assumed and assigned, as applicable, to the Buyers by it pursuant to this Agreement or designate in writing remove any Executory Contract previously designated by the Buyer as a Transferred Contract as an Excluded Contract; provided, that, with respect to any newly designated Transferred Contracts, the Endo Companies Sellers shall promptly (x) file and serve notice on the applicable counterparties setting forth the Endo CompaniesSellers’ intention to assume or assume and assign, as applicable, assign such Executory Contracts to the applicable Buyer or Buyers or the Specified Subsidiaries (as applicable) (which notice shall include the applicable proposed Cure Claims) and (y) file or otherwise make any necessary motions before the Bankruptcy Court seeking approval of such assumption and assignment. Upon request The Sellers shall pay at Closing any Undisputed Cure Claims associated with the assumption of the Buyers, the Endo Companies will use commercially reasonable efforts to provide the Buyers with (i) copies of each Contract and (ii) information as to the Liabilities under each Contract sufficient for the Buyer to make a reasonably informed assessment whether to designate any Contract as an Excluded Asset. For clarity, subject to Section 2.6(b), any Executory Contract not designated by the Buyers as a Transferred Contract pursuant (other than a Designated Contract) that is an Executory Contract or such other amount as agreed to this Section 2.6(c) shall be automatically designated as an Excluded Contract. Subject to by and among the occurrence of the Effective Date and consummation of the ClosingSellers, the Buyer and the counterparty. The Sellers shall pay the Cure Claims (including the Undisputed Cure Claims) and cure any and all other undisputed defaults and breaches under the Transferred Contracts so that such Transferred Contracts may be assumed or assumed and assigned, as applicable, by the applicable Endo Company and assigned to the applicable Buyer or Buyers or the Specified Subsidiaries (as applicable) in accordance with the provisions of Section 365 of the Bankruptcy Code and this Agreement; provided that, (A) the Buyers shall pay any Disputed Cure Claim associated with the assumption of a Transferred Contract (other than a Designated Contract) that is an Executory Contract pursuant to an Order of the Bankruptcy Court or mutual agreement between the Endo CompaniesSellers, the Buyers Buyer and the counterparty to the applicable Transferred Contract which has not been resolved as of the Closing, and (B) such payment shall, in the case of any Cure Claim, be made as soon as reasonably practicable following the Closing and, in the case of any Disputed Cure Claim, pursuant to an Order of the Bankruptcy Court provided, that the parties do not reach a negotiated settlement regarding such Disputed Cure ClaimContract. To the extent any Transferred Contract (other than a Designated Contract) is subject to a Cure Claim, the Sellers shall pay such Cure Claim directly to the applicable counterparty. Notwithstanding anything in this Agreement The Buyer shall pay at Closing any Undisputed Cure Claims associated with the assumption of a Designated Contract or such other amount as agreed to by and among the contrarySellers, the Buyers Buyer and the counterparty to any Designated Contract. The Buyer shall only assume, and shall only be responsible for, Contracts designated by them as Transferred Contracts. (d) Notwithstanding pay any Disputed Cure Claim associated with the foregoing, an Executory assumption of a Designated Contract shall not be a Transferred Contract hereunder and shall not be assigned to, or assumed by the Sellers and assigned pursuant to the applicable Buyer or the Specified Subsidiaries (as applicable) to the extent that such Executory Contract (i) expires by its terms (and is not extended) on or prior to such time as it is to be assumed by the Sellers and assigned to the applicable Buyer or the Specified Subsidiaries (as applicable) as a Transferred Contract hereunder or (ii) requires any (x) approval, consent, ratification, permission, waiver or authorization, or an Order of the Bankruptcy Court that deems or renders mutual agreement between the foregoing unnecessary (each of Sellers, the foregoing, a “Consent”) or (y) Permit (other than, Buyer and in addition to, that of the Bankruptcy Court), in the case of each of (x) and (y), in order to permit the sale or transfer counterparty to the applicable Buyer of the applicable Seller’s rights under such Executory Contract in accordance with applicable Law, and such Consent or Permit has not been obtained. In the event that any Executory Contract that would otherwise have been assigned to the Buyers is deemed not to be assigned pursuant to clause (ii) of the first sentence of this Section 2.6(d), the Closing shall, subject to the satisfaction of the conditions set forth in Article VII, nonetheless take place subject to the terms and conditions set forth herein, and, thereafter, through the earliest of (w) such time as such Consent or Permit is obtained, (x) the expiration of the term of such Executory Contract in accordance with its current terms, (y) the execution of a replacement Executory Contract by the Buyers, and (z) the end of the Wind-Down Period, the Sellers and the Buyers shall (A) use commercially reasonable efforts to secure such Consent or Permit as promptly as practicable after the Closing and (B) cooperate in good faith in any lawful and commercially reasonable arrangement proposed by the Buyers, including subcontracting, licensing, or sublicensing to the Buyers any or all of any Seller’s rights and obligations with respect to any such Executory Contract, under which (1) the Buyers shall receive the claims, rights, remedies and benefits under, or arising pursuant to, the terms of such Executory Contract with respect to which the Consent and/or Permit has not been obtained and (2) subject to receiving any such claims, rights, remedies and benefits, the Buyers shall thereafter assume and bear all Assumed Liabilities with respect to such Executory Contract from and after the Closing (as if such Executory Contract had been transferred to the Buyers as of the Closing) in accordance with this Agreement (including by means of any subcontracting, sublicensing or subleasing arrangement). Upon satisfying any requisite Consent or Permit requirement applicable to such Executory Contract after the Closing, such Executory Contract shall promptly be transferred and assigned to the applicable Buyer in accordance with the terms of this Agreement, and the Bankruptcy Code, and otherwise without any further additional consideration. Without limitation of the foregoing, prior to the Closing, the Endo Companies shall cooperate with the Buyers in connection with obtaining any Consent, Permit, Regulatory Approval, including by providing the Buyers with reasonable access to and facilitating discussions with the applicable counterparties (provided that the Buyers shall provide Sellers a reasonable opportunity to consult with the Buyers, and, if reasonably practicable, an opportunity to be present (but not participate) at any meeting) in respect of such Consents, Permit or Regulatory Approval and shall use commercially reasonable efforts to assist the Buyers with obtaining such Consents, Permits or Regulatory Approvals as promptly as practicable after the date hereof and prior to the Closing. (e) Notwithstanding anything to the contrary set forth herein, with respect to any Consent, Permit or Regulatory Approval reasonably required for the Buyers to operate the Business in the Ordinary Course of Business, the Endo Companies shall use commercially reasonable efforts to obtain, sell, assign, transfer, convey or make or cause to be obtained, sold, assigned, transferred, conveyed or made, by or for the benefit of the Buyers, any such Consent, Permit and/or Regulatory Approval or filing or application therefore, as required pursuant to Law, as reasonably required for the Buyers to continue the Business after the Closing in the Ordinary Course of Business, and the Buyers shall provide reasonable cooperation to the Endo Companies in connection therewith as reasonably requested by Sellers, in each case to the extent obtaining or making any such Consent, Permit or Regulatory Approval or filing or application therefor is allowed to occur prior to the Closing pursuant to applicable Law. If any such Consent, Permit or Regulatory Approval is not obtained prior to the Closing, then, until the earlier of such time as (i) such Consent, Permit or Regulatory Approval is obtained by the Endo Companies and transferred (or permitted to be transferred) to the Buyers or (ii) the Buyers separately obtain any such Consent, Permit or Regulatory Approval (sufficient to conduct the business of the Endo Companies in the Ordinary Course of Business), the Sellers shall continue to use commercially reasonable efforts to obtain, or cause to be obtained, and transfer to the Buyers such Consent, Permit or Regulatory Approval, and the Buyers shall provide reasonable cooperation to Sellers, subject to any approval of the Bankruptcy Court that may be required. Upon obtaining the relevant Consent, Permit or Regulatory Approval, each Seller, as applicable, shall, promptly sell, convey, assign, transfer and deliver to the Buyers such Consent, Permit or Regulatory Approval for no additional consideration. All reasonable and documented out-of-pocket costs and expenses payable prior to Closing in connection with transferring any Consents, Permits or Regulatory Approvals as contemplated by this Agreement shall be borne by the Buyers. Notwithstanding anything contained herein, it is acknowledged and agreed that any obligations hereunder of the Endo Companies in respect of the Consents, Permits or Regulatory Approvals procured or required for the Business of the Indian Subsidiaries and the Indian HoldCo shall be: (A) limited to providing to the Buyers information, documents and such other cooperation as may be reasonably requested by the Buyers; and (B) only in respect of Consents, Permits or Regulatory Approvals, which pursuant to Law, require any action to, approval of, or notification to, the relevant Governmental Authority in relation to acquisition of the Transferred Equity Interests by the Buyers.