Common use of Assumed Contracts Clause in Contracts

Assumed Contracts. Purchaser shall, at least forty-five (45) calendar days prior to the Closing Date, deliver to Stayton a written notice setting forth those Operating Contracts and Unexpired Leases which Purchaser requests be assumed on or before the Closing Date (the "Contract Assumptions"). Stayton shall terminate all of the Operating Contracts and Unexpired Leases on or prior to Closing other than (i) the Non-Terminable Operating Contracts and (ii) the Operating Contracts and Unexpired Leases included in the Contract Assumptions (respectively, the "Assumed Operating Contracts" and "Assumed Unexpired Leases"), provided that any such terminations shall be timed and effectuated in a manner to allow Stayton to operate and maintain the Properties in the same manner as the Properties are currently operated and maintained until the Closing Date. Assumed Operating Contracts and Assumed Unexpired Leases shall not be Required Removal Exceptions, notwithstanding anything to the contrary in Exhibit M-3. If any of the Operating Contracts and Unexpired Leases terminated pursuant to this Section require the payment of a termination fee pursuant to its terms, Stayton shall pay, in addition to other amounts prorated at Closing, all such contractual termination fees of such Operating Contracts and Unexpired Leases. At Closing, Purchaser shall only assume the Assumed Operating Contracts and Assumed Unexpired Leases. Notwithstanding anything to the contrary contained herein, Purchaser shall not be required to assume (A) any Management Agreements or (B) any Operating Contracts or Unexpired Leases with Sunwest Affiliate Vendors, and any agreements pursuant to clauses (A) or (B) shall not constitute Assumed Operating Contracts or Assumed Unexpired Leases unless Purchaser elects to assume such agreements pursuant to its notice of Contract Assumptions.

Assumed Contracts. Purchaser shall, at least forty-five (45) calendar days If Buyer delivers a written notice of objection to any Assumed Contract prior to the expiration of the Due Diligence Period, then, to the extent a termination right in favor of the applicable Seller is provided for in such Assumed Contract, or if such Assumed Contract does not prohibit termination, the applicable Seller shall instruct its Property Manager to promptly following the expiration of the Due Diligence Period provide a notice of termination to the vendor thereunder with respect to each such Assumed Contract to which Buyer has timely objected (collectively, the “Objectionable Contracts”); provided, however, that (i) Buyer may not object to any of the Cable Contracts or any other Assumed Contract marked “must assume” on Schedules 3.1(l)-1 through 3.1(l)-5 and shall assume the same at Closing Datepursuant to the applicable Assignment of Contracts; (ii) Seller shall have no obligation to terminate any Contract, deliver which by its terms is not terminable or which cannot be terminated without payment of an express termination fee or penalty unless Buyer agrees in writing to Stayton a written notice setting forth those Operating Contracts and Unexpired Leases which Purchaser requests pay such termination fee or penalty; (iii) if the termination of any Objectionable Contract cannot be assumed on or before made effective upon the Closing Date (Seller not being obligated to pay any money to accomplish such termination), then such Objectionable Contract shall be assumed by Buyer at Closing pursuant to the "applicable Assignment of Contracts (together with all Assumed Contracts with respect to the applicable Asset that do not constitute Objectionable Contracts) for the remaining period of such Assumed Contract Assumptions"). Stayton shall terminate all until its effective date of the Operating Contracts and Unexpired Leases on or prior to Closing other than (i) the Non-Terminable Operating Contracts termination, and (iiiv) the Operating Contracts and Unexpired Leases included in the Contract Assumptions (respectively, the "Assumed Operating Contracts" and "Assumed Unexpired Leases"), provided that any such terminations Buyer shall be timed and effectuated in a manner to allow Stayton to operate and maintain the Properties in the same manner as the Properties are currently operated and maintained until the Closing Date. Assumed Operating Contracts and Assumed Unexpired Leases shall not be Required Removal Exceptions, notwithstanding anything responsible for any termination fees payable with respect to the contrary in Exhibit M-3. If termination of any of the Operating Contracts and Unexpired Leases terminated pursuant to this Section require the payment of a termination fee pursuant to its terms, Stayton shall pay, in addition to other amounts prorated at Closing, all such contractual termination fees of such Operating Contracts and Unexpired Leases. At Closing, Purchaser shall only assume the Assumed Operating Contracts and Assumed Unexpired LeasesObjectionable Contracts. Notwithstanding anything to the contrary contained hereinforegoing, Purchaser Buyer shall not be required or entitled to assume (A) any Management Agreements Assumed Contract that, by its terms, may not be assigned to and assumed by Buyer without the consent of a third party, unless such third party’s written consent is actually obtained at or (B) any Operating before the Closing. All Contracts or Unexpired Leases with Sunwest Affiliate Vendors, and any agreements pursuant to clauses (A) or (B) shall not constitute Assumed Operating Contracts or Assumed Unexpired Leases unless Purchaser elects that Buyer is required to assume such agreements pursuant hereunder are collectively referred to its notice of Contract Assumptionsherein as the “Assumed Contracts”.

Assumed Contracts. Purchaser shallSet forth on Schedule 4.1A, at least forty-is a list of the agreements, contracts, instruments and commitments, if any, of each of the Companies, that Allied shall not assume as of the Closing ("DESIGNATED CONTRACTS"). Each agreement, contract, instrument and commitment of each Company that is disclosed by it pursuant to Section 7.x.7 of its respective Representation and Warranty Exhibit and that is not a Designated Contract shall be deemed to be a "DOWNSTATE ASSUMED CONTRACT", a "METRO/LITHO ASSUMED CONTRACT", a "LONG ISLAND ASSUMED CONTRACT", or a "LITHO CORP ASSUMED CONTRACT", as the case may be. Collectively, the Downstate Assumed Contracts, the Metro/Litho Assumed Contracts, the Long Island Assumed Contracts, and the Litho Corp Assumed Contracts are referred to as the "ASSUMED CONTRACTS". If any Company shall enter into any agreement, contract, instrument or commitment after the date hereof and prior to Closing, or if there shall be disclosed any agreement, contract, instrument or commitment that should have been disclosed on any Schedule 7.x.7 to any Representation and Warranty Exhibit, but that was not so disclosed, then IHS shall have five (455) calendar business days prior to notify the Closing Dateapplicable Representative as to whether such agreement, deliver contract, instrument or commitment shall be an Assumed Contract. If IHS fails to Stayton so notify such Representative, then such agreement, contract, instrument or commitment shall be deemed to be a written notice setting forth those Operating Contracts Designated Contract. It shall be a condition of IHS and Unexpired Leases which Purchaser requests be assumed on or before Allied to consummate the Closing Date transactions contemplated by this Agreement (the "Contract AssumptionsTRANSACTION")) that all consents required to transfer the material Assumed Contracts shall have been obtained. Stayton It also shall terminate all be a condition to the obligation of IHS to close the Transaction that IHS shall be reasonably satisfied that no material agreements, contracts, instruments and commitments of the Operating Contracts and Unexpired Leases on or prior Lithotripsy Practice (including, without limitation, contracts to provide Services) will be terminated by reason of the Transaction. It also shall be a condition of IHS to Closing other than (i) that the Non-Terminable Operating Contracts agreements, contracts, instruments and (ii) the Operating Contracts and Unexpired Leases included in the Contract Assumptions (respectivelycommitments, the "Assumed Operating Contracts" and "Assumed Unexpired Leases")if any, provided that any such terminations shall be timed and effectuated in a manner to allow Stayton to operate and maintain the Properties in the same manner as the Properties are currently operated and maintained until the Closing Date. Assumed Operating Contracts and Assumed Unexpired Leases shall not be Required Removal Exceptions, notwithstanding anything to the contrary in Exhibit M-3. If any of the Operating Contracts and Unexpired Leases terminated pursuant to this Section require the payment of a termination fee pursuant to its terms, Stayton Lithotripsy Practice set forth on Schedule 4.1-B shall pay, in addition to other amounts prorated at Closing, all such contractual termination fees of such Operating Contracts and Unexpired Leases. At Closing, Purchaser shall only assume the Assumed Operating Contracts and Assumed Unexpired Leases. Notwithstanding anything to the contrary contained herein, Purchaser shall not be required to assume (A) any Management Agreements or (B) any Operating Contracts or Unexpired Leases with Sunwest Affiliate Vendors, and any agreements pursuant to clauses (A) or (B) shall not constitute Assumed Operating Contracts or Assumed Unexpired Leases unless Purchaser elects to assume such agreements pursuant to its notice of Contract Assumptionshave been terminated.

Assumed Contracts. Purchaser shall, at least forty-five (45Schedule 6.9(a) calendar days prior sets forth a list of Contracts which shall constitute "Assumed Contracts." Subject to the Closing Dateapproval of the Bankruptcy Court and pursuant to the Approval Order, deliver to Stayton a written notice setting forth those Operating the Assumed Contracts and Unexpired Leases which Purchaser requests will be assumed by Seller and sold and assigned to Purchaser (or Purchaser's designee) free and clear of all Liens and Claims, except for the Assumed Liabilities, on or before the Closing Date (the "Contract Assumptions"). Stayton shall terminate all under sections 363 and 365 of the Operating Bankruptcy Code. Seller shall, consistent with its current financial condition and the Bankruptcy Case, use its commercially reasonable efforts to promptly comply with and perform any obligations under the Assumed Contracts arising from and Unexpired Leases on or prior to Closing other than (i) after the Non-Terminable Operating Contracts date hereof and (ii) the Operating Contracts and Unexpired Leases included in the Contract Assumptions (respectively, the "Assumed Operating Contracts" and "Assumed Unexpired Leases"), provided that any such terminations shall be timed and effectuated in a manner to allow Stayton to operate and maintain the Properties in the same manner as the Properties are currently operated and maintained until through the Closing Date. Assumed Operating Contracts and Assumed Unexpired Leases shall not be Required Removal Exceptions, notwithstanding anything to In the contrary in Exhibit M-3. If any motion seeking entry of the Operating Approval Order, or in such additional or subsequent motions as may be appropriate, Seller will seek authority to sell and assign to Purchaser (or Purchaser's designee) the Assumed Contracts free and Unexpired Leases terminated pursuant to this Section require the payment clear of a termination fee pursuant to its termsall Liens and Claims, Stayton shall payexcept for Assumed Liabilities, in addition accordance with sections 363 and 365 of the Bankruptcy Code. All Assumed Contracts shall be sold and assigned to other amounts prorated Purchaser (or Purchaser's designee) free and clear of all Liens and Claims, except for Assumed Liabilities, at the Closing, all such contractual termination fees of such Operating Contracts and Unexpired Leases. At Closing, Purchaser shall only assume the Assumed Operating Contracts and Assumed Unexpired Leases. Notwithstanding anything to the contrary contained hereinSchedule 6.9(a) hereto, (i) Purchaser shall not be required to assume (A) any Management Agreements or (B) any Operating make its final determination as to which Contracts or Unexpired Leases with Sunwest Affiliate Vendorsshall constitute "Assumed Contracts," which determination shall be in Purchaser's sole discretion, until one day prior to the hearing before the Bankruptcy Court to approve the sale of the Transferred Assets to Purchaser, and any agreements pursuant (ii) upon Purchaser providing to clauses (ASeller such final determination of the Contracts that shall constitute "Assumed Contracts," Seller shall immediately thereafter amend Schedule 6.9(a) or (B) shall not constitute Assumed Operating Contracts or Assumed Unexpired Leases unless Purchaser elects to assume such agreements pursuant this Agreement and, to its the extent required under the Bankruptcy Case, file in and give proper notice of Contract Assumptionssuch amended schedule in the Bankruptcy Case of Purchaser's final determination of Assumed Contracts.

Assumed Contracts. Purchaser shallAll Facility-based Contracts (other than Resident Contracts) are listed on Schedule 7.3(a) hereto. At the Effective Time, subject to Section 2.5, and to the extent permitted under applicable Legal Requirements and by applicable Governmental Authorities, Transferor shall assign and Transferee shall assume, at least fortyTransferee’s sole cost and expense, (i) all Facility-five based Contracts (45) calendar days prior excluding any national, regional or multi- Facility Contracts to the Closing Dateextent not described on Schedule 7.3(a), deliver to Stayton which omitted Contracts or portions thereof shall constitute Excluded Contract Liabilities) selected by Transferee, a written notice setting forth those Operating Contracts and Unexpired Leases schedule of which Purchaser requests shall be assumed attached hereto as Schedule 7.3(b) on or before the Closing Date (the "Contract Assumptions"). Stayton shall terminate all of the Operating Contracts and Unexpired Leases on or prior to Closing other than (i) the Non-Terminable Operating Contracts and (ii) the Operating Contracts Medicare Provider Agreement, Medicaid Provider Agreement, and Unexpired Leases included in the Contract Assumptions other Third Party Payor provider agreements (respectively(i) and (ii) being, together with all amendments, waivers, modifications, exhibits, schedules and annexes thereto, the "“Assumed Operating Contracts" ”). Any Contracts that Transferee does not select to assume and "Assumed Unexpired Leases"continue shall be deemed rejected by Transferee (the “Rejected Contracts”), provided it being understood that any such terminations shall be timed and effectuated in a manner to allow Stayton to operate and maintain the Properties in the same manner as the Properties national, regional or multi-Facility Contracts that are currently operated and maintained until the Closing Date. Assumed Operating Contracts and Assumed Unexpired Leases not described on Schedule 7.3(a) shall not be Required Removal Exceptionsdeemed Rejected Contracts. Transferor shall terminate such Rejected Contracts in accordance with the applicable provisions under such Rejected Contracts, notwithstanding anything and Transferee shall indemnify and hold Transferor harmless from and against any and all Liabilities arising out of such termination. Transferor shall reasonably cooperate with Transferee, at no expense to Transferor, in connection with the assignment and assumption of all Assumed Contracts. Transferee shall assume and perform any and all obligations under the Assumed Contracts from and after the Effective Time. In addition, to the contrary in Exhibit M-3. If extent that any party to one of the Operating Assumed Contracts requests consideration or payments as a fee for approving the assignment thereof to Transferee (e.g., a transfer premium,” “recapture payment,” “assignment fee” or “fees and Unexpired Leases terminated pursuant costs related to this Section require the payment of a termination fee pursuant consent to its termsassignment”), Stayton upon prior notice and confirmation that Transferee still selects such contract to be an Assumed Contracts, Transferee shall pay, in addition to other amounts prorated at Closing, all be solely responsible for such contractual termination fees of such Operating Contracts costs and Unexpired Leases. At Closing, Purchaser shall only assume the Assumed Operating Contracts and Assumed Unexpired Leases. Notwithstanding anything to the contrary contained herein, Purchaser shall not will be required to assume pay such amounts to secure the such approval. In the event that any required consents to the assignment of any Assumed Contracts cannot be obtained by Closing, at Transferor’s sole option, Transferor may choose to decline to assign such contract (A) any Management Agreements or (B) any Operating Contracts or Unexpired Leases with Sunwest Affiliate Vendorsin which case, and any agreements pursuant to clauses (A) or (B) shall not constitute Assumed Operating Contracts or Assumed Unexpired Leases unless Purchaser elects to assume such agreements pursuant to its notice of Contract Assumptionscontracts will be deemed Rejected Contracts).

Assumed Contracts. Purchaser shallExcept for Multi-Property Contracts, at least forty-five (45) calendar days each of the Assumed Contracts shall be included in the Assignment of Contracts described in Section 5.2.4. Notwithstanding the immediately preceding sentence, any fee charged by a service provider to transfer an Assumed Contract shall be borne by the Sellers. Sellers shall terminate any Contracts that are not Assumed Contracts, effective as of the Closing Date, and any costs or fees charged by the service provider in connection with such termination shall be borne by the Sellers; provided, however, if a Contract that is not an Assumed Contract provides for a termination that does not end prior to the Closing Date, deliver to Stayton then, provided that a written Seller has delivered notice setting forth those Operating Contracts and Unexpired Leases which Purchaser requests be assumed terminating such Contract on or before the Closing Date (the "October 15, 2013, such Contract Assumptions")shall be an Assumed Contract. Stayton Sellers shall have no obligation to assign or terminate any Service Contract that is not assignable or terminable by its terms. Purchaser shall assume all of the Operating Assumed Contracts and Unexpired Leases on or prior to Closing other than (i) the Non-Terminable Operating Contracts and (ii) the Operating Contracts and Unexpired Leases included in the Contract Assumptions (respectively, the "Assumed Operating Contracts" and "Assumed Unexpired Leases"), provided that any such terminations shall be timed and effectuated in a manner to allow Stayton to operate and maintain the Properties in the same manner as the Properties are currently operated and maintained until the Closing Date. Assumed Operating Contracts Purchaser acknowledges and Assumed Unexpired Leases shall agrees that the Multi-Property Contracts, if any, will be assigned only in part, with the portion of each Multi-Property Contract that does not be Required Removal Exceptions, notwithstanding anything relate to the contrary in Exhibit M-3. If any of the Operating Properties being retained by the Seller. Each Multi-Property Contract shall be omitted from the Assignment of Contracts and Unexpired Leases terminated the foregoing partial assignment with respect to such Multi-Property Contract shall be evidenced by one or more separate assignment documents in the form required by the other party to such Multi-Property Contract and reasonably satisfactory to the parties. For purposes of this Agreement, “Multi-Property Contract” means an Assumed Contract pursuant to this Section require which services are rendered to one or more properties that are not included in the payment of a termination fee Properties. Contracts pursuant to its terms, Stayton shall pay, which services are rendered to one or more properties that are not included in addition to other amounts prorated at Closing, all the Properties are designated as such contractual termination fees of such Operating Contracts and Unexpired Leases. At Closing, Purchaser shall only assume the Assumed Operating Contracts and Assumed Unexpired Leases. on Exhibit C. Notwithstanding anything to the contrary contained hereincontrary, Purchaser if any Seller has engaged a manager to manage such Seller’s Property, such Seller shall not cause such management agreement to be required terminated at or prior to assume (A) any Management Agreements or (B) any Operating Contracts or Unexpired Leases with Sunwest Affiliate Vendors, and any agreements pursuant to clauses (A) or (B) shall not constitute Assumed Operating Contracts or Assumed Unexpired Leases unless Purchaser elects to assume such agreements pursuant to its notice of Contract AssumptionsClosing.

Assumed Contracts. Purchaser shallExcept for Multi-Property Contracts, at least forty-five each of the Assumed Contracts (45if any) calendar days shall be included in the Assignment of Contracts described in Section 5.2.4. Notwithstanding the immediately preceding sentence, any fee charged by a service provider to transfer an Assumed Contract shall be borne by Seller. Seller shall terminate any Contracts that are not Assumed Contracts, effective as of the Closing Date, and any costs or fees charged by the service provider in connection with such termination shall be borne by Seller; provided, however, if a Contract that is not an Assumed Contract provides for a termination that does not end prior to the Closing Date, deliver to Stayton a written then, provided that Seller has delivered notice setting forth those Operating Contracts and Unexpired Leases which Purchaser requests be assumed terminating such Contract on or before the Closing Date (the "October 15, 2013, such Contract Assumptions")shall be an Assumed Contract. Stayton Seller shall have no obligation to assign or terminate any Service Contract that is not assignable or terminable by its terms. Purchaser shall assume all of the Operating Assumed Contracts and Unexpired Leases on or prior to Closing other than (i) the Non-Terminable Operating Contracts and (ii) the Operating Contracts and Unexpired Leases included in the Contract Assumptions (respectively, the "Assumed Operating Contracts" and "Assumed Unexpired Leases"), provided that any such terminations shall be timed and effectuated in a manner to allow Stayton to operate and maintain the Properties in the same manner as the Properties are currently operated and maintained until the Closing Date. Assumed Operating Purchaser acknowledges and agrees that the Multi-Property Contracts, if any, will be assigned only in part, with the portion of each Multi-Property Contract that does not relate to the Property being retained by Seller. Each Multi-Property Contract shall be omitted from the Assignment of Contracts and Assumed Unexpired Leases the foregoing partial assignment with respect to such Multi-Property Contract shall not be Required Removal Exceptions, notwithstanding anything evidenced by one or more separate assignment documents in the form required by the other party to such Multi-Property Contract and reasonably satisfactory to the contrary in Exhibit M-3parties. If any For purposes of the Operating Contracts and Unexpired Leases terminated this Agreement, “Multi-Property Contract” means an Assumed Contract pursuant to this Section require which services are rendered to one or more properties that are not the payment of a termination fee Property. Contracts pursuant to its terms, Stayton shall pay, in addition which services are rendered to other amounts prorated at Closing, all one or more properties that are not the Property are designated as such contractual termination fees of such Operating Contracts and Unexpired Leases. At Closing, Purchaser shall only assume the Assumed Operating Contracts and Assumed Unexpired Leases. on Exhibit C. Notwithstanding anything to the contrary contained hereincontrary, Purchaser if Seller has engaged a manager to manage the Property, Seller shall not cause such management agreement to be required terminated at or prior to assume (A) any Management Agreements or (B) any Operating Contracts or Unexpired Leases with Sunwest Affiliate Vendors, and any agreements pursuant to clauses (A) or (B) shall not constitute Assumed Operating Contracts or Assumed Unexpired Leases unless Purchaser elects to assume such agreements pursuant to its notice of Contract AssumptionsClosing.

Assumed Contracts. Purchaser shallAll of Seller’s right and interest in and to the written or oral agreements, contracts, leases, sales orders, purchase orders, distributor and representation agreements or appointments, arrangements or commitments of the CBU Business that are identified in Disclosure Schedule 1.1.3, (the “Assumed Contracts”), together with all rights, privileges, claims, demands, refunds and indemnifications in favor of Seller under the Assumed Contracts. For purposes of clarity and not limitation, the parties acknowledge that Assumed Contracts specifically exclude all of the Excluded Contracts as defined in Section 1.2.5. In addition, the parties acknowledge and agree that each of the Proprietary Information and Inventions Agreements by and among Seller and each of the CBU Employees (collectively the “Inventions Agreements”) do not constitute Assumed Contracts but that Seller shall permit Buyer to enforce such Inventions Agreements to the extent related to the Purchased CBU Trademarks, Purchased CBU Patents, Other CBU Intellectual Property, or other Proprietary Information (as defined in the Inventions Agreements) included within the Assets, and shall take all steps reasonably requested by Buyer (at least forty-five Buyer’s expense) to facilitate such enforcement, including if necessary in the specific instance executing an assignment of Seller’s right to enforce such contracts as they relate to the Purchased CBU Trademarks, Purchased CBU Patents, Other CBU Intellectual Property, or other Proprietary Information (45as defined in the Inventions Agreements) calendar days included within the Assets. The parties acknowledge that, subject to the exclusion of Excluded Contracts, the Assumed Contracts are intended to encompass those agreements, contracts, leases, sales orders, purchase orders, distributor and representation agreements or appointments, arrangements or commitments of the CBU Business that are in effect and confer a benefit or right upon or create an obligation of the CBU Business as of immediately prior to the Closing DateClosing, deliver and that as of the Closing, Seller has attempted to Stayton identify all existing contracts associated with the CBU Business and the parties have attempted to classify each contract either as an Assumed Contract or an Excluded Contract. After the Closing, if Seller or Buyer becomes aware of any contract associated with the CBU Business which is not identified as an Assumed Contract or an Excluded Contract, the discovering party will promptly provide the other party with a copy of the contract, together with an explanation of the circumstances of discovery. Within thirty (30) days after its provision or receipt of the notice, Buyer may, by written notice setting forth those Operating Contracts and Unexpired Leases which Purchaser requests be assumed on or before to Seller, agree to assume the Closing Date (the "Contract Assumptions"). Stayton shall terminate all of the Operating Contracts and Unexpired Leases on or prior to Closing other than (i) the Non-Terminable Operating Contracts and (ii) the Operating Contracts and Unexpired Leases included in the Contract Assumptions (respectively, the "Assumed Operating Contracts" and "Assumed Unexpired Leases"), provided that any such terminations shall be timed and effectuated in a manner to allow Stayton to operate and maintain the Properties in the same manner as the Properties are currently operated and maintained until the Closing Date. Assumed Operating Contracts and Assumed Unexpired Leases shall not be Required Removal Exceptions, notwithstanding anything to the contrary in Exhibit M-3. If any of the Operating Contracts and Unexpired Leases terminated pursuant to this Section require the payment of a termination fee pursuant to its terms, Stayton shall paycontract, in addition to other amounts prorated at Closing, all such contractual termination fees of such Operating Contracts and Unexpired Leases. At Closing, Purchaser shall only assume the which case it will become an Assumed Operating Contracts and Assumed Unexpired Leases. Notwithstanding anything to the contrary contained herein, Purchaser shall not be required to assume (A) any Management Agreements or (B) any Operating Contracts or Unexpired Leases with Sunwest Affiliate Vendors, and any agreements pursuant to clauses (A) or (B) shall not constitute Assumed Operating Contracts or Assumed Unexpired Leases unless Purchaser elects to assume such agreements pursuant to its notice of Contract Assumptions.Contract; otherwise it will become an Excluded Contract;

Assumed Contracts. If Purchaser shall, at least forty-five (45) calendar days delivers a written notice of objection to any Contract prior to the Closing Dateexpiration of the Due Diligence Period, deliver then, to Stayton the extent a written termination right in favor of Seller is provided for in such Contract, or if such Contract does not prohibit termination, the Seller shall cause its Property Manager to provide a notice setting forth those Operating Contracts and Unexpired Leases of termination within two (2) Business Days of the expiration of the Due Diligence Period to the vendor thereunder with respect to each such Contract to which Purchaser requests has timely objected (collectively, the “Objectionable Contracts”); provided, however, that (i) Purchaser may not object to any of the Contracts marked as “must assume” on Schedule 3.1(j) and shall assume the same at Closing pursuant to the Bxxx of Sale and Assignment; (ii) Seller shall have no obligation to terminate any Contract which by its terms is not terminable or which cannot be assumed on terminated without payment of an express termination fee or before penalty, unless Purchaser agrees in writing to pay such termination fee or penalty; (iii) if the termination of any Objectionable Contract cannot be made effective upon the Closing Date (the "Contract Assumptions"). Stayton shall terminate all of the Operating Contracts it being agreed and Unexpired Leases on or prior to Closing other than (i) the Non-Terminable Operating Contracts and (ii) the Operating Contracts and Unexpired Leases included in the Contract Assumptions (respectively, the "Assumed Operating Contracts" and "Assumed Unexpired Leases"), provided acknowledged that any such terminations shall be timed and effectuated in a manner to allow Stayton to operate and maintain the Properties in the same manner as the Properties are currently operated and maintained until the Closing Date. Assumed Operating Contracts and Assumed Unexpired Leases Seller shall not be Required Removal Exceptionsobligated to pay any money to accomplish such termination), notwithstanding anything then such Objectionable Contract shall be assumed by Purchaser at Closing pursuant to the contrary in Exhibit M-3. If Bxxx of Sale and Assignment (together with all Assumed Contracts with respect to the Property that do not constitute Objectionable Contracts) for the remaining period of such Contract until its effective date of termination; and (iv) Purchaser shall be responsible for any of the Operating Contracts and Unexpired Leases terminated pursuant to this Section require the payment of a termination fee pursuant to its terms, Stayton shall pay, in addition to other amounts prorated at Closing, all such contractual termination fees payable with respect to the termination of such Operating Contracts and Unexpired Leases. At Closing, Purchaser shall only assume the Assumed Operating Contracts and Assumed Unexpired Leasesany Objectionable Contracts. Notwithstanding anything to the contrary contained hereinforegoing, Purchaser shall not be required or entitled to assume: (x) any Contract that, by its terms, may not be assigned to and assumed by Purchaser without the consent of a third party, unless such third party’s written consent is actually obtained at or before Closing; or (y) any Contract that is not reflected on Schedule 3.1(j). All Contracts that Purchaser is required to assume (A) any Management Agreements or (B) any Operating Contracts or Unexpired Leases with Sunwest Affiliate Vendors, and any agreements pursuant to clauses (A) or (B) shall not constitute Assumed Operating Contracts or Assumed Unexpired Leases unless Purchaser elects to assume such agreements pursuant hereunder are collectively referred to its notice of Contract Assumptionsherein as the “Assumed Contracts.”

Assumed Contracts. Purchaser shall, at least forty-five (45Schedule 6.9(a) calendar days prior sets forth a proposed list of Contracts which shall constitute "Assumed Contracts," subject to final determination as provided below. Subject to the Closing Dateapproval of the Bankruptcy Court and pursuant to the Approval Order, deliver to Stayton a written notice setting forth those Operating the Assumed Contracts and Unexpired Leases which Purchaser requests will be assumed by Seller and sold and assigned to Purchaser free and clear of all Liens and Claims, except for the Assumed Liabilities, on or before the Closing Date (the "Contract Assumptions"). Stayton shall terminate all under sections 363 and 365 of the Operating Bankruptcy Code. Seller shall, consistent with its current financial condition and the Bankruptcy Case, use its commercially reasonable efforts to promptly comply with and perform any obligations under the Assumed Contracts arising from and Unexpired Leases on or prior to Closing other than (i) after the Non-Terminable Operating Contracts date hereof and (ii) the Operating Contracts and Unexpired Leases included in the Contract Assumptions (respectively, the "Assumed Operating Contracts" and "Assumed Unexpired Leases"), provided that any such terminations shall be timed and effectuated in a manner to allow Stayton to operate and maintain the Properties in the same manner as the Properties are currently operated and maintained until through the Closing Date. Assumed Operating Contracts and Assumed Unexpired Leases shall not be Required Removal Exceptions, notwithstanding anything to In the contrary in Exhibit M-3. If any motion seeking entry of the Operating Approval Order, or in such additional or subsequent motions as may be appropriate, Seller will seek authority to sell and assign to Purchaser the Assumed Contracts free and Unexpired Leases terminated pursuant to this Section require the payment clear of a termination fee pursuant to its termsall Liens and Claims, Stayton shall payexcept for Assumed Liabilities, in addition accordance with sections 363 and 365 of the Bankruptcy Code. All Assumed Contracts shall be sold and assigned to other amounts prorated Purchaser free and clear of all Liens and Claims, except for Assumed Liabilities, at the Closing, all such contractual termination fees of such Operating Contracts and Unexpired Leases. At Closing, Purchaser shall only assume the Assumed Operating Contracts and Assumed Unexpired Leases. Notwithstanding anything to the contrary contained hereinSchedule 6.9(a) hereto, (i) Purchaser shall not be required to assume make its final determination as to which Contracts shall constitute "Assumed Contracts," which determination shall be in Purchaser's sole discretion, until one day prior to the hearing before the Bankruptcy Court to approve the sale of the Transferred Assets to Purchaser (A) the "Hearing"), provided Purchaser shall use commercially reasonable efforts to notify Seller of any Management Agreements contracts which shall not be included as Assumed Contracts by November 3, 2005 (it being understood that the addition or (B) any Operating deletion of contracts to be included or excluded as Assumed Contracts or Unexpired Leases with Sunwest Affiliate Vendorsthrough the day prior to the Hearing shall in no event be a default under this Agreement), and any agreements pursuant (ii) upon Purchaser providing to clauses (ASeller such final determination of the Contracts that shall constitute "Assumed Contracts," Seller shall immediately thereafter amend Schedule 6.9(a) or (B) shall not constitute Assumed Operating Contracts or Assumed Unexpired Leases unless Purchaser elects to assume such agreements pursuant this Agreement and, to its the extent required under the Bankruptcy Case, file in and give proper notice of Contract Assumptionssuch amended schedule in the Bankruptcy Case of Purchaser's final determination of Assumed Contracts.

Assumed Contracts. If Purchaser shall, at least forty-five (45) calendar days delivers a written notice of objection to any Contract prior to the Closing Dateexpiration of the Due Diligence Period, deliver then, to Stayton the extent a written termination right in favor of Seller is provided for in such Contract, or if such Contract does not prohibit termination, Seller shall cause Existing Property Manager to provide a notice setting forth those Operating Contracts and Unexpired Leases of termination within two (2) Business Days of the expiration of the Due Diligence Period to the vendor thereunder with respect to each such Contract to which Purchaser requests has timely objected (collectively, the “Objectionable Contracts”); provided, however, that (i) Purchaser may not object to any of the Contracts marked as “must assume” on Schedule 3.1(j) and shall assume the same at Closing pursuant to the Bxxx of Sale and Assignment; (ii) Seller shall have no obligation to terminate any Contract which by its terms is not terminable or which cannot be assumed on terminated without payment of an express termination fee or before penalty, unless Purchaser agrees in writing to pay such termination fee or penalty; (iii) if the termination of any Objectionable Contract cannot be made effective upon the Closing Date (the "Contract Assumptions"). Stayton shall terminate all of the Operating Contracts it being agreed and Unexpired Leases on or prior to Closing other than (i) the Non-Terminable Operating Contracts and (ii) the Operating Contracts and Unexpired Leases included in the Contract Assumptions (respectively, the "Assumed Operating Contracts" and "Assumed Unexpired Leases"), provided acknowledged that any such terminations shall be timed and effectuated in a manner to allow Stayton to operate and maintain the Properties in the same manner as the Properties are currently operated and maintained until the Closing Date. Assumed Operating Contracts and Assumed Unexpired Leases Seller shall not be Required Removal Exceptionsobligated to pay any money to accomplish such termination), notwithstanding anything then such Objectionable Contract shall be assumed by Purchaser at Closing pursuant to the contrary in Exhibit M-3. If Bxxx of Sale and Assignment (together with all Assumed Contracts with respect to the Property that do not constitute Objectionable Contracts) for the remaining period of such Contract until its effective date of termination; and (iv) Purchaser shall be responsible for any of the Operating Contracts and Unexpired Leases terminated pursuant to this Section require the payment of a termination fee pursuant to its terms, Stayton shall pay, in addition to other amounts prorated at Closing, all such contractual termination fees payable with respect to the termination of such Operating Contracts and Unexpired Leases. At Closing, Purchaser shall only assume the Assumed Operating Contracts and Assumed Unexpired Leasesany Objectionable Contracts. Notwithstanding anything to the contrary contained hereinforegoing, Purchaser shall not be required or entitled to assume: (x) any Contract that, by its terms, may not be assigned to and assumed by Purchaser without the consent of a third party, unless such third party’s written consent is actually obtained at or before Closing; or (y) any Contract that is not reflected on Schedule 3.1(j). All Contracts that Purchaser is required to assume (A) any Management Agreements or (B) any Operating Contracts or Unexpired Leases with Sunwest Affiliate Vendors, and any agreements pursuant to clauses (A) or (B) shall not constitute Assumed Operating Contracts or Assumed Unexpired Leases unless Purchaser elects to assume such agreements pursuant hereunder are collectively referred to its notice of Contract Assumptionsherein as the “Assumed Contracts.”

Assumed Contracts. Purchaser Within sixty (60) days after the Exercise Date, Pabst shall notify Optionor in writing as to which of the Service Contracts and Equipment Leases (which, for the avoidance of doubt, do not include the Master Leases) and all other Contracts which Pabst elects (in its sole discretion) to assume (each of the foregoing, subject to obtaining any third-party consents needed for such assignments, and each of the Lease(s), an “Assumed Contract”). At Closing, (x) Pabst shall assume all obligations of Optionor accruing after the Closing Date under each Assumed Contract and Pabst shall be responsible for the payment of the assumption fee in respect of each such Assumed Contract (if any); and (y) all other Contracts (herein, collectively, the “Cancelled Contracts”) shall be cancelled by Optionor at Closing, it being agreed that at Closing Optionor shall, at least forty-five Optionor’s expense and risk, (45i) calendar days terminate all such Cancelled Contracts (in which case Optionor shall deliver to Pabst at or promptly following Closing copies of such written notices and/or agreements of termination of all such Cancelled Contracts; provided, that Optionor shall not be required to deliver such written notices of termination with regard to such Cancelled Contracts until if, as and when the Closing occurs, at which time Optionor shall deliver such notices of termination (and provide copies of such notices to Pabst) in accordance with the applicable terms and provisions of each such Cancelled Contract) and/or (ii) maintain such Cancelled Contracts at no liability to Pabst. In the event Pabst provides notice of a Cancelled Contract, Optionor Party may cancel such contract at any time prior to the Closing Date. Notwithstanding the above, deliver to Stayton a written notice setting forth those Operating Contracts and Unexpired Leases which Purchaser requests be assumed on or before if the Closing Date (occurs, Pabst must assume the "Contract Assumptions"Union Contracts as currently written or as amended pursuant to Sections 1.2(a)(iv) and 1.7(d). Stayton Pabst shall not be permitted to cancel or terminate all of the Operating Union Contracts and Unexpired Leases on (as currently written or as amended pursuant to Section 4.6) at or prior to Closing other than (i) the Non-Terminable Operating Contracts and (ii) the Operating Contracts and Unexpired Leases included in the Contract Assumptions (respectively, the "Assumed Operating Contracts" and "Assumed Unexpired Leases"), provided that any such terminations shall be timed and effectuated in a manner to allow Stayton to operate and maintain the Properties in the same manner as the Properties are currently operated and maintained until the Closing Date. Assumed Operating Contracts and Assumed Unexpired Leases shall not be Required Removal Exceptions, notwithstanding anything to the contrary in Exhibit M-3. If any of the Operating Contracts and Unexpired Leases terminated pursuant to this Section require 1.8, provided that if a Closing occurs Pabst complies with its obligations to assume the payment of a termination fee Union Contracts either as written or amended pursuant to its termsSection 4.6. Notwithstanding the above, Stayton shall payif the Closing occurs, in addition to other amounts prorated at Closing, all such contractual termination fees of such Operating Contracts and Unexpired Leases. At Closing, Purchaser shall only Pabst must assume the Assumed Operating Contracts Leases affecting the Land and Assumed Unexpired Leases. Notwithstanding anything to the contrary contained herein, Purchaser shall not be required to assume (A) any Management Agreements or (B) any Operating Contracts or Unexpired Leases with Sunwest Affiliate Vendors, and any agreements pursuant to clauses (A) or (B) shall not constitute Assumed Operating Contracts or Assumed Unexpired Leases unless Purchaser elects to assume such agreements pursuant to its notice of Contract AssumptionsImprovements.