(d) Payment of Contract Cure Costs.
At Closing or on the Plan Effective Date, Cure Costs related to the Assigned Contracts shall be paid by Owner and Operator as contemplated by the Cosi APA, including by the use of the portion of the Cash Payment attributable to Operator’s share of Cure Costs (up to $1,500,000) and by the use of the Estate Allocated Funds for Owner’s share of Cure Costs (amounts over $1,500,000). Operator shall be responsible for payment of any and all Cure Costs which may accrue after the Effective Date including, without limitation, any additional actual pecuniary losses of counter-parties to Assumed Contracts.
5. Operation of the Business During the Term.
(a) Owner shall retain title to the Purchased Assets during the Term; however, except as otherwise provided herein, Operator shall assume the expense and risk of loss and injury that relate to the operation by Operator of the Purchased Assets for use in the Business and that arise as a result of actions or omissions in relation to the Purchased Assets and the Business occurring during the Term. Owner and Operator agree that during the Term, the machinery, equipment, and other personal property included in the Purchased Assets and located at any of the Premises may, at the sole discretion of Operator, remain at the Premises, as applicable, and Owner shall reasonably cooperate with Operator to preserve the Purchased Assets in their current condition, subject to ordinary wear and tear. For the avoidance of doubt, during the Term, Owner shall be considered the tenant under all leases and the counterparty under all executory contracts and nothing in this Agreement shall be deemed to allow any landlord or party (other than Owner) to an executory contract to declare a default or otherwise terminate such lease or executory contract, except for the termination of any such leases or executory contract (i) that is expiring or terminating in the ordinary course and which Owner and Operator have agreed not to extend or renew or which does not provide for extension or renewal, or (ii) that Owner and Operator otherwise agree to terminate. To the extent necessary, the respective rights and obligations under this Agreement will be deemed modified to avoid any default or right by any landlord or by any other party to terminate any lease or executory contract or otherwise impair the value of any Purchased Assets or the intended benefits of the Transactions.
(b) Subject to Bankruptcy Court approval when and if required, during the Term, Owner hereby grants Operator complete and exclusive interim control over, and authority to operate and direct, all aspects of the Business, including the Purchased Assets and the right to relocate any Purchased Assets and the physical location of employment of any such personnel; provided, however, Operator will consult with Owner regarding the proposed movement of any physical locations during the Term, including Owner’s corporate headquarters and any proposal for the movement of physical locations, including relocation of employees, shall be reasonably calculated to enhance the value of the Business and shall require Owner’s consent, which shall not be unreasonably delayed or withheld. Further, if Operator proposes the relocation of Owner’s corporate headquarters, Operator shall ensure that Owner will continue to have sufficient accommodations to conduct its business as Owner and Owner’s business records shall continue to be maintained and accessible to Owner. For the avoidance of doubt, during the Term, Operator shall be able to employ and engage its agents and employees directly on the premises of Owner and direct all aspects of the operation of the Business. During the Term, unless directed by Operator, Owner shall reasonably cooperate with Operator to maintain all tangible and intangible Purchased Assets used in the operation of the Business as of immediately prior to the Effective Date and to continue to operate the Business and the Purchased Assets as a going concern.