2020-10-09_GENERAL DOCUMENTS - C1980004 (4)

Home Browse Search

Case 1:20-bk-12043 Doc 465-1 Filed 10/09/20 Entered 10/09/20 14:01:47 Desc Exhibit 1 - Sale Agreement between certain Debtors and the Stalking Horse Bidder Page 78 of 207 Section IL 10. Assignment. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Except as set forth in Section 11.11, nothing in this Agreement will create or be deemed to create any third-party beneficiary rights in any Person or entity that is not a Party. No assignment of this Agreement or of any rights or obligations hereunder may be made by Sellers, or any of them, (by operation of law or otherwise) without the prior written consent of Purchaser and any attempted assignment without the required consents will be void. Purchaser may assign this Agreement, in whole or part, and without limiting the foregoing Purchaser shall be entitled to designate, in accordance with the terms and subject to the limitations set forth in this Section, one or more Persons to (i)purchase all or a portion of the Purchased Assets and/or (ii) assume all or a respective portion of the Assumed Liabilities (any such Person or Persons that shall be properly designated by Purchaser in accordance with this clause, a `Designated Purchaser"); it being understood and agreed, however, that any such right of Purchaser to designate a Designated Purchaser is conditioned upon (a) such Designated Purchaser executing and delivering to Sellers a counterpart to this Agreement applicable to the Purchased Assets and the Assumed Liabilities to be acquired and assumed by it, (b) such Designated Purchaser being able to perform the applicable covenants under this Agreement (and make the same representations and warranties as Purchaser has made in Article VI, limited, where applicable, to the relevant portion of the Purchased Assets being acquired by such Designated Purchaser), and demonstrate satisfaction of the applicable requirements of Section 365 of the Bankruptcy Code (to the extent applicable), including the provision of adequate assurance for future performance, with respect to the applicable Purchased Contracts, (c) any such designation not creating any Liability (including any Liability relating to Taxes) for Sellers or their Affiliates that would not have existed had Purchaser purchased the Purchased Assets and/or assumed the Assumed Liabilities, and which Liability is (i) not fully reimbursed by or on behalf of Purchaser prior to or at the Closing or (ii) a Liability for which Purchaser or the applicable Designated Purchaser agrees, at its election, to provide an indemnity reasonably acceptable to Sellers and (d) such designation not reasonably being expected to materially delay, prevent or hinder the consummation of the transactions contemplated by this Agreement. If Purchaser assigns all of its right, title and interest in this Agreement to one or more Person(s), such assignment(s) shall relieve Purchaser of all of its obligations hereunder. Unless relieved of its obligations hereunder as set forth in the preceding sentence, any breach hereof by a Designated Purchaser shall be deemed a breach by Purchaser. The above designation shall be made by Purchaser by way of a written notice to be delivered to Sellers as soon as reasonably practicable after the date hereof and in no event later than the second (2"d) Business Day prior to the Closing Date, which written notice shall contain appropriate information about the Designated Purchaser(s) and shall indicate which Purchased Assets and Assumed Liabilities that Purchaser intends such Designated Purchaser(s) to purchase and/or assume, as applicable, hereunder. Upon any such permitted assignment, the references in this Agreement to Sellers or Purchaser will also apply to any such assignee unless the context otherwise requires. In addition to the foregoing, and without the prior written consent of Sellers, Purchaser and any Designated Purchaser may at or prior to Closing designate one or more separate Person(s) to receive title or accept transfer to all or any portion of the applicable Purchased Assets. 73 4844-9981-3577v6 4821-9091-9881.v1