SEC Filings

8-K
PERNIX THERAPEUTICS HOLDINGS, INC. filed this Form 8-K on 02/19/2019
Entire Document
 

 

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 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 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)                At any time at least three (3) Business Days before the date of the Auction (the "Pre-Auction Designation Date"), 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 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 Sellers shall 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 by and among the Sellers, the Buyer and the counterparty. The Sellers 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 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 Sellers shall pay such Cure Claim directly to the applicable counterparty. 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 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. 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 Buyer be responsible for curing any defaults under the Transferred Contracts 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, the Buyer shall only assume, and (other than, for the avoidance of doubt,

 

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