Common use of Executory Contracts Clause in Contracts

Executory Contracts. (a) All Purchased Contracts (which, shall for the avoidance of doubt, include the Keen-Summit Agreement) shall be assumed by Sellers and assigned to Purchaser at the Closing. Any Contract of any Seller that is an Excluded Contract may be assumed or rejected by Sellers in Sellers’ sole discretion and shall be deemed an Excluded Asset. (b) As part of the Sale Motion, Sellers shall seek approval by the Bankruptcy Court of the sale, assumption and assignment by Sellers to Purchaser of all Purchased Contracts. Sellers shall timely serve the Sale Motion on all counterparties to all such Purchased Contracts along with a notice specifically stating that Sellers are or may be seeking the sale, assumption and assignment of such Purchased Contracts and shall notify such parties of the deadline for objecting to the Cure Costs. As part of the Sale Motion, Sellers shall seek authority to file with the Bankruptcy Court the list identifying the Purchased Contracts and the amounts necessary to cure defaults under each as determined by Sellers in accordance with Schedule 1.3(b) hereto, so as to enable any such party to object to the proposed Cure Costs and the Bankruptcy Court to determine such Cure Costs as promptly as reasonably possible. Purchaser may delete any Purchased Contract from Schedule 1.1(f) and Schedule 1.3(b) or add any Contract to Schedule 1.1(f) and Schedule 1.3(b) at any time no later than seven (7) days prior to the Closing Date, in each case by written notice to Sellers, but any such deletion or addition will not affect the Purchase

Executory Contracts. (a) All Purchased Contracts (which, shall for the avoidance of doubt, include the Keen-Summit Agreement) shall be assumed by Sellers and assigned to Purchaser at the Closing. Any Contract of any Seller that is an Excluded Contract may be assumed or rejected by Sellers in Sellers’ sole discretion and shall be deemed an Excluded Asset. (b) As part of the Sale Motion, Sellers shall seek approval by the Bankruptcy Court of the sale, assumption and assignment by Sellers to Purchaser of all Purchased Contracts. Sellers shall timely serve the Sale Motion on all counterparties to all such Purchased Contracts along with a notice specifically stating that Sellers are or may be seeking the sale, assumption and assignment of such Purchased Contracts and shall notify such parties of the deadline for objecting to the Cure Costs. As part of the Sale Motion, Sellers shall seek authority to file with the Bankruptcy Court the list identifying the Purchased Contracts and the amounts necessary to cure defaults under each as determined by Sellers in accordance with Schedule 1.3(b) hereto, so as to enable any such party to object to the proposed Cure Costs and the Bankruptcy Court to determine such Cure Costs as promptly as reasonably possible. Purchaser may delete any Purchased Contract from Schedule 1.1(f) and Schedule 1.3(b) or add any Contract to Schedule 1.1(f) and Schedule 1.3(b) at any time no later than seven (7) days prior to the Closing Date, in each case by written notice to Sellers, but any such deletion or addition will not affect the PurchasePurchase Price. Notwithstanding anything herein to the contrary, if a Contract is added to Schedule 1.1(f) and/or Schedule 1.3(b) after the Sale Motion is filed, the assumption and assignment of any such Contract(s) shall not be a condition to Closing and may be effected on a post-Closing basis.

Executory Contracts. As soon as practicable after the date hereof, the Sellers shall (upon request by Buyer), pursuant to a motion in form and substance reasonably acceptable to the Buyer (the "Assumption and Assignment Order"), move to assume and assign to the Buyer the executory contracts included in the Acquired Assets and shall provide notice thereof in accordance with all applicable bankruptcy rules. The Buyer may at any time prior to the entry of the Assumption and Assignment Order delete therefrom any of the executory contracts included in the Acquired Assets. If, immediately prior to the entry of the Assumption and Assignment Order, the Buyer requests that any executory contracts included in the Acquired Assets not be rejected (any such executory contract being hereinafter referred to as an "Extended Executory Contract"), then the Sellers shall not reject such Extended Executory Contract until the earlier of (a) All Purchased Contracts the date the Buyer notifies the Sellers that they are free to reject such Extended Executory Contract or (which, b) the one hundred twenty-first day after the Closing Date. The Buyer shall reimburse the Sellers for the avoidance costs under such Extended Executory Contract during the period from the Closing Date until the earlier of doubt(a) the date an order of the Bankruptcy Court is entered rejecting such Extended Executory Contract after the Buyer notifies the Sellers that they are free to reject such Extended Executory Contract; provided that the Sellers shall have filed a motion to reject such Extended Executory Contract within three (3) business days after receipt from the Buyer of such notification, include the Keen-Summit Agreement) or such later date as shall be agreed by the Sellers and the Buyer or (b) the date such Extended Executory Contract is assumed by the Sellers and assigned to Purchaser at the ClosingBuyer pursuant to the next sentence of this Section 1.5. Any If the Buyer notifies the Sellers that they are free to reject such Extended Executory Contract and the Sellers fail to file a motion to reject such Extended Executory Contract within three (3) business days of receipt of such notification, or such later date as shall be agreed by the Sellers and the Buyer, the Buyer shall reimburse the Sellers for the costs under such Extended Executory Contract during the period from the Closing Date until the date of receipt by the Sellers of such notification. If the Buyer requests that any Seller that is an Excluded Extended Executory Contract may be assumed or rejected by Sellers in Sellers’ sole discretion and shall be deemed an Excluded Asset. (b) As part of the Sale Motion, Sellers shall seek approval by the Bankruptcy Court of the sale, assumption and assignment by Sellers to Purchaser of all Purchased Contracts. Sellers shall timely serve the Sale Motion on all counterparties to all such Purchased Contracts along with a notice specifically stating that Sellers are or may be seeking the sale, assumption and assignment of such Purchased Contracts and shall notify such parties of the deadline for objecting assigned to the Cure Costs. As part of the Sale Motion, Sellers shall seek authority to file with the Bankruptcy Court the list identifying the Purchased Contracts and the amounts necessary to cure defaults under each as determined by Sellers in accordance with Schedule 1.3(b) hereto, so as to enable any such party to object to the proposed Cure Costs and the Bankruptcy Court to determine such Cure Costs as promptly as reasonably possible. Purchaser may delete any Purchased Contract from Schedule 1.1(f) and Schedule 1.3(b) or add any Contract to Schedule 1.1(f) and Schedule 1.3(b) at any time no later than seven (7) Buyer within one hundred twenty days prior to after the Closing Date, then, as soon as practicable after such request, the Sellers shall move to assume and assign to the Buyer such executory contract by motion in each case by written notice to Sellers, but any such deletion or addition will not affect the Purchaseform

Executory Contracts. (a) All Purchased Contracts (which, shall for the avoidance of doubt, include the Keen-Summit Agreement) shall be assumed by Sellers and assigned to Purchaser at the Closing. Any Contract of any Seller that is an Excluded Contract may be assumed or rejected by Sellers in Sellers’ sole discretion and shall be deemed an Excluded Asset. (b) As part of the Sale Motion, Sellers shall seek approval by the Bankruptcy Court of the sale, assumption and assignment by Sellers to Purchaser of all Purchased Contracts. Sellers shall timely serve the Sale Motion on all counterparties to all such Purchased Contracts along with a notice specifically stating that Sellers are or may be seeking the sale, assumption and assignment of such Purchased Contracts and shall notify such parties of the deadline for objecting to the Cure Costs. As part of the Sale Motion, Sellers shall seek authority to file with the Bankruptcy Court the list identifying the Purchased Contracts and the amounts necessary to cure defaults under each as determined by Sellers in accordance with Schedule 1.3(b) hereto, so as to enable any such party to object to the proposed Cure Costs and the Bankruptcy Court to determine such Cure Costs as promptly as reasonably possible. Purchaser may delete any Purchased Contract from Schedule 1.1(f) and Schedule 1.3(b) or add any Contract to Schedule 1.1(f) and Schedule 1.3(b) at any time no later than seven (7) days prior to the Closing Date, in each case by written notice to Sellers, but any such deletion or addition will not affect the PurchasePurchase Price. Notwithstanding anything herein to the contrary, if a Contract is added to Schedule 1.1(f) and/or Schedule 1.3(b) after the Sale Motion is filed, the assumption and assignment of any such Contract(s) shall not be a condition to Closing and may be effected on a post-Closing basis.

Executory Contracts. (a) All Purchased Contracts (which, shall for the avoidance Theater Leases listed in Part A of doubt, include the Keen-Summit AgreementSchedule 1.1(f) shall be assumed by Sellers and assigned to Purchaser at the ClosingClosing pursuant to and in accordance with the Procedures Order. All Theater Leases listed in Part B of Schedule 1.1(f) shall, if not rejected by Purchaser pursuant to Section 1.3(b), be assumed by Sellers and assigned to Purchaser at the Closing pursuant to and in accordance with the Procedures Order. Any Contract of any Seller that is designated as an Excluded Contract may be assumed or rejected by Sellers in Sellers’ sole discretion and shall be deemed an Excluded Asset. (b) As part Sellers agree that at any time prior to Closing, Purchaser may by written notice to Sellers elect to reject and exclude from the Contemplated Transaction any Theater Lease listed in Part B of Schedule 1.1(f), or any Other Contract related to any such Theater Lease, notwithstanding the designation of such Theater Lease or Other Contract as a Purchased Contract herein; provided that Purchaser shall not, as a result of such action, be entitled to any reduction of the Purchase Price. Upon delivery of such notice, any such Theater Lease or Other Contract specified by Purchaser shall no longer be a Purchased Contract and shall for all purposes become an Excluded Contract under this Agreement. At Purchaser’s request, and at Purchaser’s sole cost and expense, but in no event after thirty (30) days after the Closing Date, Sellers shall reasonably cooperate with Purchaser as reasonably requested (i) to allow Purchaser to enter into any amendments of any Purchased Contracts (including Designated Contracts) upon assumption of such Contract by Purchaser (and Sellers shall reasonably cooperate with Purchaser, to the extent reasonably requested by Purchaser, in negotiations with the counterparties thereof), and (ii) to otherwise amend any Purchased Contracts (including Designated Contracts) to the extent such amendments would not adversely affect any Seller or otherwise create any liability to any Seller; provided that Sellers shall not be required to enter into any such amendment if such amendment would result in (i) an assumption by any Seller of such Purchased Contract unless such Contract will be contemporaneously assigned to Purchaser at the time of such assumption by any Seller. (c) Sellers shall use their respective reasonable efforts to obtain one or more Orders of the Bankruptcy Court, which Order(s) shall be in form and substance consistent with the applicable provisions of the Sale MotionOrder, Sellers and shall seek approval by reflect the Bankruptcy Court of terms and conditions set forth herein, with respect to the sale, assumption assumption, and assignment by Sellers to Purchaser of all Purchased Contracts. All Cure Costs shall be borne and paid by Purchaser. Sellers shall timely serve the Sale Motion on all use their reasonable efforts to resolve or adjudicate any pending objections or disputes asserted by contract counterparties to all such Purchased Contracts along with a notice specifically stating that Sellers are or may be seeking the sale, assumption and assignment amount of such Purchased Contracts the Cure Costs and shall notify such parties use their reasonable efforts to assist the Purchaser in resolving or adjudicating any pending objections or disputes asserted by contract counterparties to adequate assurance objections. (d) If requested by Purchaser on or before the earlier of (a) one-hundred eighty (180) days after the Closing, (b) the dismissal of the deadline for objecting to Chapter 11 Cases; (c) the Cure Costs. As part conversion of the Sale MotionChapter 11 Cases to chapter 7; or (d) the effective date of any plan of reorganization or liquidation, Sellers shall seek authority to file a motion with the Bankruptcy Court the list identifying the Purchased Contracts on regular notice seeking to assume and the amounts necessary to cure defaults under each as determined by Sellers in accordance with Schedule 1.3(b) hereto, so as to enable assign any such party to object to the proposed Cure Costs and the Bankruptcy Court to determine such Cure Costs as promptly as reasonably possible. Purchaser may delete any Purchased Contract from Schedule 1.1(f) and Schedule 1.3(b) or add any Designated Contract to Schedule 1.1(f) and Schedule 1.3(b) at any time no later than seven (7) days prior to the Closing Date, in each case by written notice to Sellers, but any such deletion or addition will not affect the PurchasePurchaser.

Executory Contracts. (a) All Purchased The Section 365 Contracts (which, shall for the avoidance of doubt, include the Keen-Summit Agreement) shall to be assumed by Sellers and assigned and sold to Purchaser at the ClosingClosing pursuant to section 365 of the Bankruptcy Code (the “Assumed Section 365 Contracts”) shall consist of (i) the Assumed Employment Agreements, (ii) all Customer Contracts not expressly excluded by Purchaser on or before the Bid Submission Deadline by written notice from time to time to Sellers given on or before such date, and (iii) if expressly designated by Purchaser on or before the Bid Submission Deadline as Assumed Section 365 Contracts by written notice from time to time to Sellers given on or before such date, the Facilities Leases for the Acquired Facilities described on Schedule 2.1(e), the Personal Property Leases described on Schedule 2.1(f), the Confidentiality Agreements, and other Non-Customer Contracts described on Schedule 2.1(h) (other than Assumed Employment Agreements). Any Contract of any Seller that is an Excluded Contract may All such exclusions and designations shall be assumed or rejected by Sellers made in Sellers’ Purchaser’s sole discretion discretion, and shall be deemed an subject to change by Purchaser from time to time by giving written notice thereof to Sellers, so long as any such changes are delivered prior to the Bid Submission Deadline. All exclusions and designations of Assumed Section 365 Contracts that Purchaser is entitled to exclude or designate hereunder shall be become final and binding upon Purchaser at 5:00 Eastern time on the Bid Submission Deadline. Notwithstanding the foregoing, (i) Purchaser shall not exclude any Assumed Employment Agreement, (ii) unless Purchaser expressly designates otherwise by written notice to Sellers given on or before the Bid Submission Deadline, the Facilities Leases for the Excluded AssetFacilities shall not be included among the Assumed Section 365 Contracts, and (iii) if at any time Sellers become aware of any Section 365 Contract not disclosed in writing to Purchaser on or before the Effective Date, Sellers shall promptly thereafter advise Purchaser of the existence, and provide Purchaser with a copy, of such Section 365 Contract and Purchaser thereupon shall have the right to request, by written notice to Sellers within five (5) days, that Sellers assume, assign and sell such Section 365 Contract to Purchaser, in which case Sellers shall use commercially reasonable efforts to assume, assign and sell such Section 365 Contract to Purchaser, as promptly as reasonably practicable, on the same terms and conditions as would be applicable under this Agreement to the Assumed Section 365 Contracts, it being understood that such assumption, assignment and sale shall not be required to take place on or before the Closing or constitute a condition precedent to Purchaser’s obligation to consummate the Contemplated Transactions. (b) As part of the Sale Motion, Sellers shall seek approval by the Bankruptcy Court of the sale, assumption and assignment by Sellers to Purchaser of (i) the Assumed Employment Agreements, (ii) all Purchased Customer Contracts, (iii) the Facilities Leases for the Acquired Facilities described on Schedule 2.1(e), (iv) the Personal Property Leases described on Schedule 2.1(f), (v) the Confidentiality Agreements, and (v) the other Non-Customer Contracts described on Schedule 2.1(h) (the “Scheduled Section 365 Contracts”). Sellers shall timely serve the Sale Motion on all counterparties to all such Purchased Scheduled Section 365 Contracts along with a notice specifically stating that Sellers are or may be seeking the sale, assumption and assignment of such Purchased the Scheduled Section 365 Contracts and shall notify such parties of the deadline for objecting to the Cure Costs. As part of amounts listed in Schedule 1.1, which deadline shall be not less than three (3) Business Days prior to the Sale Motion, Hearing. Sellers shall seek authority to file with the Bankruptcy Court Court, not later than ten (10) days prior to the Sale Hearing, the list identifying the Purchased Scheduled Section 365 Contracts and the amounts necessary to cure defaults under each of such Section 365 Contract as determined by Sellers in accordance with Schedule 1.3(b) hereto1.1, so as to enable any such party to object to the proposed Cure Costs Amounts and the Bankruptcy Court to determine such Cure Costs Amounts as promptly as reasonably possible. In cases in which Sellers are unable to establish that a default exists, the relevant Cure Amount shall be set at $0.00. The Sale Motion shall reflect Purchaser’s promise to perform from and after the Closing under the Assumed Section 365 Contracts, and such promise shall be the only adequate assurance of future performance necessary to satisfy the requirements of section 365 of the Bankruptcy Code in respect of the assignment to Purchaser may delete any Purchased Contract from Schedule 1.1(fof such Assumed Section 365 Contracts. (c) and Schedule 1.3(b) or add any Contract to Schedule 1.1(f) and Schedule 1.3(b) at any time no later than seven (7) days prior Anything contained in this Agreement to the Closing Datecontrary notwithstanding, (i) this Agreement shall not constitute an agreement to assign any Section 365 Contracts if, after giving effect to the provisions of sections 363 and 365 of the Bankruptcy Code, an attempted assignment thereof, without obtaining a Consent, would constitute a breach thereof or in each case by written notice to Sellers, but any such deletion or addition will not way negatively affect the Purchaserights of Sellers or Purchaser, as the assignee of such Section 365 Contracts and (ii) no breach of this Agreement shall have occurred by virtue of such non-assignment. If, after giving effect to the provisions of sections 363 and 365 of the Bankruptcy Code, such Consent is required but not obtained, Sellers shall, at Purchaser’s sole cost and expense, cooperate with Purchaser in any reasonable arrangement, including Purchaser’s provision of credit support, designed to provide for Purchaser the benefits and obligations of or under any of such Section 365 Contracts, including enforcement for the benefit of Purchaser of any and all rights of Sellers against a third party thereto arising out of the breach or cancellation thereof by such third party. Any assignment to Purchaser of any Section 365 Contracts that shall, after giving effect to the provisions of sections 363 and 365 of the Bankruptcy Code, require the Consent of any third party for such assignment as aforesaid shall be made subject to such Consent being obtained. Any contract that would be a Section 365 Contract but is not assigned in accordance with the terms of this Section 6.10 shall not be considered a “Assumed Section 365 Contract” for purposes hereof unless and until such contract is assigned to Purchaser following the Closing Date upon receipt of the requisite Consents to assignment and Bankruptcy Court approval.