United States Bankruptcy Court District of Delaware

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UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE

In re Chapter 11

OPEN ROAD FILMS, LLC, a Delaware Case No.: 18-12012 (LSS) limited liability company, et al.,1 (Jointly Administered) Debtors. Ref. Dkt. No. 757

ORDER (I) APPROVING THE SALE OF DEBTORS’ RIGHTS TO UNTITLED HOLIDAY PROJECT, (II) AUTHORIZING THE ASSUMPTION AND ASSIGNMENT OF RELATED EXECUTORY CONTRACTS, AND (III) GRANTING RELATED RELIEF

Upon consideration of the motion (the “Motion”)2 of Open Road Films, LLC and its

affiliated debtors and debtors in possession (the “Debtors”) in the above-captioned jointly

administered chapter 11 cases (the “Cases”) for entry of an order, pursuant to sections 105, 363,

and 365 of title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”),

Rules 2002, 6004, and 6006 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy

Rules”), and Rules 2002-1 and 6004-1 of the Local Rules of Bankruptcy Practice and Procedures

for the United States Bankruptcy Court for the District of Delaware (the “Local Rules”),

(i) authorizing the sale of the Debtors’ rights to that certain Untitled Holiday Project (the

“Project”) free and clear of all liens, claims, interests, and encumbrances, pursuant to that certain

Asset Purchase Agreement, dated July 8, 2019, attached hereto as Exhibit 2 (the “APA”), by and

among the Debtors and Metro-Goldwyn-Mayer Pictures Inc. (“MGM”), (ii) authorizing the

1 The Debtors and the last four digits of their respective federal taxpayer identification numbers are as follows: Open Road Films, LLC (4435-Del.); Open Road Releasing, LLC (4736-Del.); OR Productions LLC (5873-Del.); Briarcliff LLC (7304-Del.); Open Road International LLC (4109-Del.); and Empire Productions LLC (9375-Del.). The Debtors’ address is 1800 Century Park East, Suite 600, Los Angeles, CA 90067. 2 Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Motion.

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assumption, assignment, and sale to MGM of certain executory contracts related to the Project

(the “Contracts”), and (iii) granting related relief; and it appearing that this Court has jurisdiction

to consider the Motion in accordance with 28 U.S.C. §§ 157 and 1334 and the Amended Standing

Order of Reference from the United States District Court for the District of Delaware dated

February 29, 2012; and it appearing that the Motion is a core matter pursuant to 28 U.S.C.

§ 157(b)(2) and that this Court may enter a final order consistent with Article III of the United

States Constitution; and it appearing that venue of these Cases and of the Motion is proper

pursuant to 28 U.S.C. §§ 1408 and 1409; and it appearing that due and adequate notice of the

Motion and the transactions contemplated by the Motion have been given under the

circumstances, and that no other or further notice need be given; and it appearing that the

Declaration of Amir Agam submitted concurrently with the Motion establishes good and

sufficient cause for granting the Motion; and it appearing that the relief requested in the Motion

and the transactions contemplated by the Motion are in the best interests of the Debtors’ estates,

their creditors, and other parties in interest and an appropriate exercise of the Debtors’ business

judgment; and after due deliberation, and good and sufficient cause appearing therefor, it is

hereby

ORDERED, ADJUDGED, AND DECREED THAT:

1. The Motion is GRANTED as set forth herein.

2. Pursuant to sections 105 and 363 of the Bankruptcy Code, the Debtors are

authorized, in their discretion and in the exercise of their business judgment, to sell (the “Sale”)

the Project to MGM, pursuant to the APA, free and clear of all liens, claims, interests, and

encumbrances (except for any liabilities expressly assumed by MGM), and to take any other

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reasonable actions that may be necessary in the Debtors’ good faith business judgment to

effectuate the closing of the Sale.

3. All persons and entities holding liens, claims, interests, or encumbrances with

respect to the Project are hereby barred from asserting such liens, claims, interests, or

encumbrances against MGM, its successors or assigns, or the Project (except in respect of those

liabilities expressly assumed by MGM).

4. The Sale is undertaken and APA was negotiated by the Debtors and MGM in

good faith and, pursuant to section 363(m) of the Bankruptcy Code, the reversal or modification

on appeal of any sale consummated pursuant to the terms of this Order shall not affect the

validity of such sale unless such sale was stayed pending appeal.

5. Pursuant to Section 365 of the Bankruptcy Code, the Debtors are authorized to

assume the Contracts set forth on the Exhibit 1 hereto and assign and sell the Contracts to

MGM, and, upon the closing of the Sale, such Contracts shall be assumed by the Debtors and

assigned and sold to MGM; provided, however, that nothing herein shall prevent MGM and the

counterparty to any such Contract from amending such Contract after such assumption and

assignment. The Contracts are and shall be in full force and effect and not in default and shall

remain in full force and effect for the benefit of MGM in accordance with their respective terms,

notwithstanding any provision in any such Contract (including those of the type described in

Section 365(b)(2) of the Bankruptcy Code) that prohibits, restricts, or conditions such

assignment or transfer and, pursuant to Section 365(k) of the Bankruptcy Code, the Debtors shall

be relieved from any further liability with respect to the Contracts after such assignment and sale

to MGM.

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6. MGM has provided adequate assurance of future performance under the Contracts

within the meaning of Section 365 of the Bankruptcy Code.

7. Any and all defaults or other obligations of the Debtors under the Contracts

arising or accruing prior to the closing of the Sale (without giving effect to any acceleration

clauses or any default provisions of the kind specified in Section 365(b)(2) of the Bankruptcy

Code) shall be deemed cured upon the closing of the Sale, and the cure amounts for the Contracts

under Section 365 of the Bankruptcy Code shall be $0.00. The non-debtor counterparties to the

Contracts are barred from asserting against the Debtors, their estates, MGM, and their respective

successors and assigns, any default or unpaid obligation allegedly arising or occurring before the

closing of the Sale, any pecuniary loss resulting from such default, or any other obligation under

the Contracts arising or incurred prior to the closing of the Sale, other than those obligations that

are being expressly assumed by MGM, which assumed obligations include the obligation to pay

the Debtors $182,163.78 and the assumption of the Debtors’ obligations under the Contracts,

including, but not limited to, execution and delivery by MGM of the standard form Writers Guild

of America Literary Material Assumption Agreement, in connection with the Project. To the

extent a non-debtor counterparty to a Contract failed to timely object to the cure amount set forth

herein and on Exhibit 1 hereto, such amount shall be deemed to be finally determined and any

such counterparty shall be prohibited from challenging, objecting to, or denying the validity and

finality of such cure amount at any time.

8. The Debtors are authorized and empowered to take any actions necessary or

appropriate to implement and effectuate the terms of this Order.

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9. The terms and conditions of this Order shall be immediately effective and

enforceable upon its entry notwithstanding any applicability of Bankruptcy Rules 6004(h) or

6006(d).

10. This Court shall retain jurisdiction and power with respect to all matters arising

from or related to the interpretation and implementation of this Order.

Dated: July 25th, 2019 LAURIE SELBER SILVERSTEIN Wilmington, Delaware UNITED STATES BANKRUPTCY JUDGE

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Exhibit 1

Contracts

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Non-Debtor Contract Debtor Contract Cure Contract Description Counterparty Counterparty Amount Blacked Out Fiction, LLC Writer Agreement – Loanout Chris Shafer OR Productions LLC “Untitled Holiday Movie,” $0 Paul Vicknair dated March 21, 2018 OR Productions LLC Option/Quitclaim Agreement New Regency (as assignee of Anthem “Santa Claus Is for Real,” $0 Productions, Inc. Productions, LLC) dated February 20, 2018 Assignment, dated June 5, Anthem Productions, LLC OR Productions LLC $0 2018

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Exhibit 2

APA

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ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (this “Agreement”), dated as of July 8, 2019, is entered into between Open Road Films, LLC, Open Road Releasing, LLC, OR Productions LLC, Briarcliff LLC, Open Road International LLC, and Empire Productions LLC, each a Delaware limited liability company (collectively, the “Sellers”), and Metro-Goldywn-Mayer Pictures Inc., a Delaware corporation (“Buyer”).

RECITALS

WHEREAS, on September 6, 2018, each of the Sellers filed a voluntary petition for relief commencing a case under chapter 11 of the Bankruptcy Code (collectively, the “Cases”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”);

WHEREAS, OR Productions LLC, as assignee of Anthem Productions, LLC, optioned the rights (the “Project”), pursuant to that certain Option/Quitclaim Agreement, dated as of February 20, 2018 (the “Option Agreement”), with New Regency Productions, Inc. (“New Regency”), to develop a film based on the novel entitled Santa Clause Is for Real: A True Christmas Fable About the Magic of Believing, written by Charles Edward Hall and Bret Witter and certain literary material based thereon, written by Larry Stuckey, which rights have since reverted to New Regency in respect of the Larry Stuckey material and to Charles Edward Hall and Bret Witter with respect to the novel;

WHEREAS, OR Productions LLC is party to the Option Agreement, that certain Writer Agreement – Loanout “Untitled Holiday Movie,” dated March 21, 2018, between OR Productions LLC and Blacked Out Fiction, LLC, Chris Shafer, and Paul Vicknair, and that certain Assignment, dated June 5, 2018, between OR Productions LLC and Anthem Productions, LLC related to the Project (collectively the “Contracts”); and

WHEREAS, Sellers wish to sell and assign to Buyer, and Buyer wishes to purchase and assume from Sellers, pursuant to the Sale Order (as defined herein), the Purchased Assets and the Assumed Liabilities (each as defined herein), subject to the terms and conditions set forth herein and in the Sale Order.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I PURCHASE AND SALE

Section 1.01 Purchase and Sale of Assets. Subject to signature of this Agreement by Sellers and Buyer and subject further to entry of the Sale Order and upon the terms and conditions set forth herein, at the Closing (as defined herein), Sellers shall and, as of the Closing, hereby do sell, assign, transfer, convey and deliver to Buyer, and Buyer shall and, as of the Closing, hereby does purchase from Sellers, all of Sellers’ right, title and interest in the Project Case 18-12012-LSS Doc 783-2 Filed 07/25/19 Page 3 of 11 Case 18-12012-LSS Doc 783-2 Filed 07/25/19 Page 4 of 11

violation of such Seller’s certificate of formation, LLC agreement or any other valid instrument to which such Seller is a party or by which such Seller may be bound. Following entry of the Sale Order, this Agreement shall have been duly authorized, executed and delivered and shall constitute a legal, valid and binding obligation of each Seller, enforceable against it in accordance with its terms except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity.

Section 3.02 Representations and Warranties of Buyer. Buyer represents and warrants to Sellers that the statements contained herein are true and correct as of the date hereof. Buyer is a corporation, validly existing and in good standing under the laws of Delaware. Buyer has the requisite power and authority to execute and deliver this Agreement or any ancillary agreement, and to perform the transactions contemplated hereby or by the Sale Order, and that such performance does not constitute a violation of the Buyer’s certificate of incorporation, bylaws or any other valid instrument to which Buyer is a party or by which Buyer may be bound. This Agreement has been duly authorized, executed and delivered and constitutes a legal, valid and binding obligation of the Buyer, enforceable against it in accordance with its terms except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity.

ARTICLE IV COVENANTS

Section 4.01 Further Assurances. Following the Closing, at the requesting party’s cost, each of the parties hereto shall use commercially reasonable efforts to execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated hereby; provided, however, nothing contained in this Agreement shall, nor shall be deemed to, prohibit any of the Sellers from dissolving, liquidating, winding-up or otherwise ceasing their respective existence.

ARTICLE V BANKRUPTCY COURT MATTERS

Section 5.01 Sale Order. Buyer shall use its commercially reasonable efforts take such actions as are reasonably requested by the Sellers to assist in obtaining Bankruptcy Court approval of the Sale Order, including furnishing affidavits or other documents or information for filing with the Bankruptcy Court for purposes, among others, of (a) demonstrating that Buyer is a “good faith” purchaser under Section 363(m) of the Bankruptcy Code, and (b) establishing adequate assurance of future performance within the meaning of Section 365 of the Bankruptcy Code. From and after the date this Agreement is executed by Buyer, Buyer shall not take any action that is intended to result in or might reasonably be expected to result in, or fail to take any action the intent of which failure to act would result in, or might reasonably be expected to result in, the reversal, voiding, modification or staying of the Sale Order. Subject to Section 5.02, the Sellers agree to use commercially reasonable efforts to obtain the entry of the Sale Order.

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Section 5.02 Alternative Transactions. The parties hereto acknowledge and agree that this Agreement is subject to approval by the Bankruptcy Court and the consideration by the Sellers and the Bankruptcy Court of higher and otherwise better alternative transactions involving the Purchased Assets. The Seller Parties and Buyer acknowledge that to obtain such approval, the Sellers must demonstrate that they have taken reasonable steps to obtain the highest and best offer possible for the Purchased Assets. Without limiting the immediately preceding sentence, the Sellers may, directly or indirectly, (a) encourage, solicit, initiate, facilitate or continue inquiries regarding an alternative transaction involving the Purchased Assets; (b) enter into discussions or negotiations with any other party concerning a possible alternative transaction involving the Purchased Assets; or (c) enter into any agreements or other instruments (whether or not binding) regarding an alternative transaction involving the Purchased Assets; provided, however, that any such alternative transaction described in clauses (a) through (c) must (i) have an aggregate purchase price payable to the Sellers of not less than $10,000.00 more than the Purchase Price and (ii) be received by the Sellers prior to the hearing to consider approval of this Agreement and entry of the Sale Order.

ARTICLE VI TERMINATION

Section 6.01 Conditions of Termination. Notwithstanding anything to the contrary contained herein, this Agreement may be terminated, and the transactions contemplated hereby abandoned, at any time prior to the Closing Date by written notice from the terminating party to the other party only as follows:

(a) by mutual written agreement of Sellers and Buyer;

(b) by Sellers or Buyer if any court of competent jurisdiction or other governmental agency shall have issued an order permanently restraining, enjoining or otherwise prohibiting the transactions contemplated hereby, and such order shall have become final and nonappealable; provided, however, that the party seeking to terminate this Agreement pursuant to this clause shall have used all reasonable best efforts to have such order vacated; provided further, however, that the right to terminate this Agreement pursuant to this subparagraph shall not be available to any party whose breach or failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to be consummated;

(c) by Buyer, if the Sellers (i) shall have breached in any material respect any of their respective representations or warranties or shall have breached or failed to perform or comply with any of their respective covenants or agreements in this Agreement in any material respect and (ii) such breach or failure cannot be cured or has not been cured within five days after the giving of written notice by Buyer to Sellers specifying such breach or failure; provided, however, that Buyer may not terminate this Agreement pursuant to this subparagraph if Buyer is then in breach of this Agreement in any material respect;

(d) by Sellers, if (i) Buyer shall have breached in any material respect any of its representations or warranties or shall have breached or failed to perform or comply

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with any of its covenants or agreements in this Agreement in any material respect and (ii) such breach or failure cannot be cured or has not been cured within five days after the giving of written notice by Sellers to Buyer specifying such breach or failure; provided, however, that Sellers may not terminate this Agreement pursuant to this subparagraph if Sellers are then in breach of this Agreement in any material respect;

(e) at or prior to the Bankruptcy Court hearing regarding approval of this Agreement, by either Sellers or Buyer, if the Bankruptcy Court enters an order approving an offer to purchase all or substantially all of the Purchased Assets submitted by a party other than Buyer or enters an order confirming a chapter 11 plan of Sellers (other than a plan under which Buyer acquires the Purchased Assets on or before the Closing Date);

(f) by written notice from Sellers to Buyer, if Sellers determine that proceeding with the transactions contemplated by this Agreement or failing to terminate this Agreement would be inconsistent with the fiduciary duties of any Seller or any of their officers; or

(g) by Sellers or Buyer if the Closing shall not have occurred on or before August 19, 2019, unless the failure to have the Closing shall be due to the failure of the party or parties seeking to terminate this Agreement to perform in any material respect its obligations under this Agreement required to be performed by it or them at or prior to the Closing.

Section 6.02 Effect of Termination. In the event of the termination of this Agreement, this Agreement shall become void ab initio and have no further force and effect, and the transactions contemplated hereby shall be abandoned without any further action or liabilities of any party; provided, however, that the following provisions shall survive such termination, subject to any limitations set forth therein: this Section 6.02, Section 7.01, and ARTICLE VIII.

ARTICLE VII REMEDIES

Section 7.01 Non-Survival of Representations, Warranties, Covenants, and Agreements; Remedies. The parties hereto agree that the representations and warranties of the parties contained in this Agreement shall expire automatically and immediately upon the Closing Date. None of the covenants and agreements of the parties contained in this Agreement shall survive the Closing, other than the covenants and agreements contained in ARTICLE IV, this ARTICLE VII, and ARTICLE VIII. In the event of any termination of this Agreement as provided for in ARTICLE VI, this Agreement shall become wholly void and of no further force and effect; provided, that nothing herein shall relieve any party hereto from liability for breach of this Agreement prior to its termination.

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ARTICLE VIII MISCELLANEOUS

Section 8.01 Expenses. All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses.

Section 8.02 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) on the date of service if served personally on the party to whom notice is to be given, (b) on the day of transmission if sent via email (with proof of delivery, which may be electronic) prior to 5:00 P.M. in the place of receipt on a business day, and otherwise on the next business day, (c) on the business day after timely delivery to a reputable next-day courier service if next business day delivery is properly requested, or (d) on the third day after mailing by first class mail, registered or certified, postage prepaid, to the party as follows:

If to Sellers: Open Road Films, LLC 1800 Century Park East, Suite 600 Los Angeles, CA 90067 Attn: Chief Restructuring Officer Email: [email protected]

with a copy to: Klee, Tuchin, Bogdanoff & Stern LLP 1999 Avenue of the Stars, 39th Floor Los Angeles, CA 90067 Attn: Jonathan M. Weiss, Esq. Email: [email protected]

If to Buyer: Metro-Goldwyn-Mayer Pictures Inc. 245 North Beverly Drive Beverly Hills, CA 90210 Attn: Theatrical Business & Legal Affairs Email:[email protected]

Section 8.03 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

Section 8.04 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

Section 8.05 Entire Agreement. This Agreement and the documents to be delivered hereunder constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the

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event of any inconsistency between the statements in the body of this Agreement and any documents to be delivered hereunder, the statements in the body of this Agreement will control.

Section 8.06 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder.

Section 8.07 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 8.08 Amendment and Modification. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.

Section 8.09 Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Section 8.10 No Other Seller Representations and Warranties. Buyer has conducted its own independent review and analysis of the Purchased Assets, the Assumed Liabilities and otherwise in connection with the transactions contemplated hereby and has relied solely on its own review and analysis in determining to proceed with such transactions. Buyer acknowledges that, without limiting the generality of any other exclusion or qualification set forth in this Agreement, (a) none of the Sellers is making, has made or shall be deemed to make, at or as of any past, current or future date, any representation or warranty of any kind, express or implied, at law or in equity, to Buyer with respect to the Sellers or any of their respective affiliates, the Purchased Assets, the Assumed Liabilities, or any other matter (including with respect to any information or materials made available to Buyer or its representatives in any format during the course of their due diligence investigation of the Sellers, whether before or after the Closing), except for the representations and warranties specifically set forth in Section 3.01 of this Agreement, (b) there are no, the Buyer has not relied on any, and the Sellers hereby expressly disclaim any such other representations or warranties of any kind, express or implied, at law or in equity, whether by any Seller or any party related to any Seller and (c) Buyer is willing to accept the Purchased Assets at Closing “as is,” “where is” and “with all faults.”

Section 8.11 Governing Law. This Agreement shall be governed by and construed in accordance with federal bankruptcy law, to the extent applicable, and where state law is

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applicable, in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).

Section 8.12 Submission to Jurisdiction. The Bankruptcy Court will have exclusive jurisdiction over any and all disputes between or among the parties, whether at law or in equity, arising out of or related to this Agreement or any agreement contemplated hereby; provided, however, that if the Bankruptcy Court is unwilling or unable to hear any such dispute, the courts of the State of Delaware and the United States District Court for the District of Delaware will have exclusive jurisdiction over any and all disputes between or among the parties, whether at law or in equity, arising out of or relating to this Agreement or any agreement contemplated hereby.

Section 8.13 Waiver of Jury Trial. Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

Section 8.14 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

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