Common use of Contract Designation Clause in Contracts

Contract Designation. (a) No later than March 31, 2015, Sellers shall deliver to the Buyers a true, correct and complete, to the best of the Sellers’ knowledge, list (the “Executory Contract List”) of all Contracts related to the Transferred Assets or otherwise used, or held for use, in connection with the Business as it is conducted by the Sellers (each, an “Executory Contract”). The Executory Contract List shall describe 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 Buyers to assume the Transferred Contracts pursuant to this Agreement (“Undisputed Cure Claims”). The Sellers will use commercially reasonable efforts to provide the Buyers with copies of each such Contract so as to permit Buyer to review such Contracts to determine such other commercial information related to the Contracts listed thereon as Buyer desires. (b) Subject to the entry of the Sale Procedures Order and to the terms and provisions thereof, no later than the tenth (10th) Business Day following entry of the Sale Procedures Order, a copy of the Executory Contract List, which shall be in form and substance reasonably acceptable to Buyers, shall be served on all necessary parties. The Executory Contract List shall identify the Undisputed Cure Claim, if any, associated with each Contract listed therein, shall identify the Buyers, and shall indicate that the Buyers 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 Sellers and asserts 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 Buyers to assume such Executory Contract pursuant to this Agreement, the difference between the Undisputed Cure Claims determined by Sellers and such amounts and/or nonmonetary obligations determined by such counterparty shall be referred to as the “Disputed Cure Claims.” (d) On or prior to the third (3rd) Business Day before Closing, Buyers may designate in writing any Executory Contract as a Transferred Contract to be assumed by it pursuant to this Agreement or remove any Executory Contract previously designated by Buyers as a Transferred Contract. The Buyers shall be obligated to pay at Closing any Undisputed Cure Claims associated with the assumption of a Transferred Contract that is an Executory Contract or such other amount as agreed to between the applicable Buyer and the counterparty. The Disputed Cure Claims shall only be paid pursuant to an Order of the Bankruptcy Court or mutual agreement between the Buyers and the counterparty to the applicable Transferred Contract. To the extent any Transferred Contract is subject to a Cure Claim, the Buyers shall pay such Cure Claim directly to the applicable counterparty; provided, however, that the Buyers’ obligation to pay Cure Claims in connection with the Transferred Contracts shall not exceed the Cure Claims Cap unless otherwise agreed to between the applicable Buyer and the counterparty. In no event shall the Sellers be responsible for curing any defaults under the Transferred Contracts or otherwise satisfying the Cure Claims relating to the Transferred Contracts. Notwithstanding anything contained herein to the contrary, Buyers shall only assume, and shall only be responsible for, Contracts designated by it as Transferred Contracts, and which Transferred Contracts are in fact assumed and assigned to the Buyers at Closing, pursuant to this Section 2.6. (e) Sellers shall use commercially reasonable efforts to reduce, and shall use commercially reasonable efforts to cooperate with Buyers in its efforts to reduce, the Disputed Cure Claims and negotiate rent reductions with respect to Leases that are Transferred Contracts. Such efforts shall include providing Buyers with access to relevant business records, personnel, equipment, and Buyers’ other reasonable requests in order to allow Buyers to assist with evaluating the Disputed Cure Claims, in each case, at Sellers’ sole cost and expense prior to the Closing and at Buyers’ sole cost and expense if such assistance, access and cooperation occurs during the post-Closing period. (f) At any time at least two (2) Business Days prior to Closing, the Buyer, in its discretion by written notice to Sellers, may exclude from being assigned pursuant hereto any Contracts or Leases, and, in such circumstances, such Contracts or Leases shall not constitute Transferred Contracts and shall be Excluded Assets, and Buyers shall not acquire any rights or assume any Liabilities with respect thereto pursuant to Section 2.3 hereof. Upon Buyers’ reasonable request, Sellers shall use commercially reasonable efforts to provide additional information as to the Liabilities under the Contracts and Leases sufficient for Buyers to make an informed assessment whether to designate such Contracts or Leases as Excluded Assets.

Contract Designation. (a) No later than March 31three (3) Business Days following the entry of the Sales Procedures Order, 2015, the Sellers shall deliver to the Buyers Buyer a true, correct and complete, to the best Knowledge of the Sellers’ knowledge, list (the “"Executory Contract List”") of all Contracts (including for the avoidance of doubt, any insurance policies and binders that are Transferred Assets and any settlement agreements) related to the Transferred Assets and/or the Business or otherwise used, or held for use, in connection with the Transferred Assets and/or the Business as it is conducted by the Sellers (each, an “"Executory Contract”"). The Executory Contract List shall describe describe, in reasonable detail, (i) 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 Buyers the Buyer to assume the Transferred Contracts 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 Buyers Buyer with (i) copies of each such Contract so and (ii) information as to permit the Liabilities under each such Contract sufficient for the Buyer to review make a reasonably informed assessment whether to designate such Contracts to determine such other commercial information related to the Contracts listed thereon as Buyer desiresExcluded Assets. (b) Subject to the entry of the Sale Procedures Order and to the terms and provisions thereof, no later than the tenth (10th) Business Day following entry of the Sale Procedures Order, a copy of the Executory Contract List, which shall be in form and substance reasonably acceptable to Buyersthe Buyer, shall be served on all necessary parties. The Executory Contract List shall identify the Undisputed Cure Claim, if any, associated with each Contract listed therein, shall identify the BuyersBuyer, and shall indicate that the Buyers 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 Sellers and asserts 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 Buyers the Buyer to assume such Executory Contract pursuant to this Agreement, the difference between the Undisputed Cure Claims determined by the Sellers and such amounts and/or nonmonetary obligations determined by such counterparty shall be referred to as the “"Disputed Cure Claims.”" (d) On or prior to the third At any time at least three (3rd3) Business Day Days before Closingthe date of the Auction (the "Pre-Auction Designation Date"), Buyers the Buyer may designate in writing any Executory Contract as a Transferred Contract to be assumed by it pursuant to this Agreement or remove any Executory Contract previously designated by Buyers the Buyer as a Transferred Contract; provided, that, with respect to any newly designated Transferred Contracts, the Sellers shall promptly (x) serve notice on the applicable counterparties setting forth the Sellers' intention to assume and assign such Executory Contracts to Buyer (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. The Buyers Sellers shall be obligated to pay at Closing any Undisputed Cure Claims associated with the assumption of a Transferred Contract (other than a Designated Contract) that is an Executory Contract or such other amount as agreed to between by and among the applicable Sellers, the Buyer and the counterparty. The Sellers shall pay any Disputed Cure Claims shall only be paid 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 Buyers Sellers, the Buyer and the counterparty to the applicable Transferred Contract. To the extent any Transferred Contract (other than a Designated Contract) is subject to a Cure Claim, the Buyers Sellers shall pay such Cure Claim directly to the applicable counterparty; provided, however, that the Buyers’ obligation to . The Buyer shall pay at Closing any Undisputed Cure Claims in connection associated with the Transferred Contracts shall not exceed the Cure Claims Cap unless otherwise assumption of a Designated Contract or such other amount as agreed to between by and among the applicable Sellers, the Buyer and the counterparty to any Designated Contract. The Buyer shall pay any Disputed Cure Claim associated with the assumption of a Designated Contract pursuant to an Order of the Bankruptcy Court or mutual agreement between the Sellers, the Buyer and the counterparty to the applicable Designated Contract. 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. In To the extent any Designated Contract is subject to a Cure Claim, the Buyer shall pay such Cure Claim directly to the applicable counterparty. Subject to Section 2.6(e), in no event shall the Sellers Buyer be responsible for curing any defaults under the Transferred Contracts or arising prior to Closing or, except with respect to any Designated Contract, otherwise satisfying the Cure Claims relating to the Transferred Contracts. Notwithstanding anything contained herein to the contrary, Buyers the Buyer shall only assume, and (other than, for the avoidance of doubt, the payment at Closing of the applicable Designated Contract Make-Whole Amounts) shall only be responsible for, Contracts designated by it as Transferred Contracts, and which Transferred Contracts are in fact assumed and assigned to the Buyers at Closing, pursuant to this Section 2.6. (e) Buyer shall continue to be entitled to designate in writing any Contract as a Transferred Contract following the Pre-Auction Designation Date but prior to the fifth Business Day prior to the Closing Date (and, in the event of any such designation, the Sellers shall use commercially reasonable efforts to reducecomply with the notice and filing obligations set forth in clauses (x) and (y) of the first sentence of Section 2.6(d)); provided, that, unless otherwise agreed to in writing by and shall use commercially reasonable efforts to cooperate with Buyers in its efforts to reduceamong the Sellers, the Disputed Buyer and the applicable counterparty, the Buyer shall pay all Cure Claims and negotiate rent reductions associated with respect the assumption of any Transferred Contract designated as such pursuant to Leases that are Transferred Contracts. Such efforts shall include providing Buyers with access to relevant business recordsthis Section 2.6(e), personnel, equipment, and Buyers’ other reasonable requests in order to allow Buyers to assist with evaluating the Disputed Cure Claimswhich payment shall, in each casethe case of any Cure Claim, be made at Sellers’ sole cost and expense prior to the Closing and at Buyers’ sole cost and expense if such assistance, access and cooperation occurs during the post-Closing period. (f) At any time at least two (2) Business Days prior to Closing, the Buyer, in its discretion by written notice to Sellers, may exclude from being assigned pursuant hereto any Contracts or Leases, and, in such circumstancesthe case of any Disputed Cure Claim, such Contracts or Leases shall not constitute Transferred Contracts and shall be Excluded Assets, and Buyers shall not acquire any rights or assume any Liabilities with respect thereto pursuant to Section 2.3 hereof. Upon Buyers’ reasonable request, Sellers shall use commercially reasonable efforts to provide additional information as to an Order of the Liabilities under the Contracts and Leases sufficient for Buyers to make an informed assessment whether to designate such Contracts or Leases as Excluded AssetsBankruptcy Court.