|PERNIX THERAPEUTICS HOLDINGS, INC. filed this Form 8-K on 02/19/2019|
reasonable efforts, and subject to Section 5.17, the Buyer shall cooperate with the Sellers, to obtain any such consent and to resolve the impracticalities of assignment after the Closing; provided that nothing in this Agreement or any Ancillary Agreement shall require any Seller, the Buyer or any of their respective Affiliates to make any payment or initiate any Action (other than Actions for relief from the Bankruptcy Court) to obtain consent to the transfer of any Transferred Asset as contemplated by this Agreement or any Ancillary Agreement.
(b) If (i) notwithstanding the applicable provisions of Sections 363 and 365 of the Bankruptcy Code and the Sale Order and the reasonable best efforts of the Sellers and Buyer, any consent is not obtained prior to Closing and as a result thereof the Buyer shall be prevented by a third party from receiving the rights and benefits with respect to a Transferred Asset intended to be transferred hereunder, (ii) any attempted assignment of a Transferred Asset would adversely affect the rights of the Sellers thereunder so that the Buyer would not in fact receive all the rights and benefits contemplated, (iii) any Transferred Asset is not otherwise capable of sale and/or assignment (after giving effect to the Sale Order and the Bankruptcy Code), then, in each case, the Sellers shall, subject to any approval of the Bankruptcy Court that may be required, at the written request of the Buyer, cooperate with the Buyer in any lawful and commercially reasonable arrangement under which the Buyer would, to the extent practicable, obtain the economic claims, rights and benefits under such asset and assume the economic burdens and obligations with respect thereto in accordance with this Agreement, including by subcontracting, sublicensing or subleasing to the Buyer. Seller Parent shall promptly pay to the Buyer when received all monies received by the Sellers under such Transferred Asset or any claim or right or any benefit arising thereunder and the Buyer shall indemnify, defend, hold harmless and promptly pay the Sellers for all Liabilities of the Sellers associated with such arrangement.
Section 2.6 Contract Designation.
(a) No later than three (3) Business Days following the entry of the Sales Procedures Order, the Sellers shall deliver to the Buyer a true, correct and complete, to the Knowledge of the Sellers, 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 (each, an "Executory Contract"). The Executory Contract List shall 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 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 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) 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 acceptable to the Buyer, shall be served on all necessary parties. The Executory Contract List