RELATING THERETO.
5.1
LEASED PROPERTIES.
(A)
DURING THE MARKETING PERIOD FOR EACH LEASE, UNLESS OTHERWISE MUTUALLY
AGREED BY THE PARTIES, AGENT SHALL USE ITS REASONABLE COMMERCIAL EFFORTS TO
MARKET AND ATTEMPT TO ASSIGN THE LEASES.
(B)
SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 10.3(C) HEREOF, AT ANY TIME
PRIOR TO THE EXPIRATION OF THE MARKETING PERIOD FOR LEASES, AGENT SHALL HAVE THE
RIGHT, WHICH RIGHT MAY BE EXERCISED AT ANY TIME AND FROM TIME TO TIME IN AGENT'S
SOLE AND ABSOLUTE DISCRETION, TO PROVIDE NOTICE TO MERCHANT (EACH SUCH NOTICE, A
"LEASE ASSUMPTION NOTICE") OF AGENT'S ELECTION TO REQUIRE MERCHANT TO SEEK
APPROVAL FROM THE BANKRUPTCY COURT TO ASSUME AND ASSIGN ONE OR MORE LEASES TO
ANY SUCH PARTY AS AGENT SHALL DESIGNATE, INCLUDING AGENT, AN AFFILIATE OF AGENT,
OR TWEC (EACH, A "LEASED PROPERTY DESIGNEE").
EACH LEASE ASSUMPTION NOTICE
SHALL INCLUDE SUCH INFORMATION RELATING TO THE PROPOSED DESIGNEE, ITS PROPOSED
USE OF THE PROPERTY AND SUCH OTHER INFORMATION OR DOCUMENTATION RELATING TO
"ADEQUATE ASSURANCE OF FUTURE PERFORMANCE" AS SHALL BE REASONABLY REQUIRED IN
CONNECTION WITH THE FILING BY MERCHANT OF THE APPROVAL MOTION, PROVIDED, THAT
AGENT OR AGENT'S DESIGNEE SHALL BE SOLELY RESPONSIBLE FOR PROVIDING EVIDENCE OF
ADEQUATE ASSURANCE OF FUTURE PERFORMANCE.
TO THE EXTENT THAT THE REPRESENTATION
IN SECTION 15.2(E) HAS NOT BEEN MET PRIOR TO THE LAST DAY OF THE MARKETING
PERIOD, AGENT SHALL THE NEXT DAY NOTIFY MERCHANT OF ITS ASSUMPTION OF SUFFICIENT
LEASES TO CAUSE SUCH REPRESENTATION TO BE MET BY THE LAST DAY OF THE MARKETING
PERIOD.
(C)
WITHIN FIVE (5) BUSINESS DAYS FOLLOWING THE DATE UPON WHICH MERCHANT
RECEIVES A LEASE ASSUMPTION NOTICE FROM AGENT, OR ON SUCH LONGER TERM AS AGENT
MAY DESIGNATE IN ITS SOLE DISCRETION, MERCHANT SHALL FILE AN APPROVAL MOTION (AS
DEFINED BELOW) WITH THE BANKRUPTCY COURT AND MERCHANT SHALL THEREAFTER USE
REASONABLE COMMERCIAL EFFORTS TO OBTAIN AN APPROVAL ORDER (AS DEFINED BELOW).
AS USED IN THIS SECTION 5.1(C), "REASONABLE COMMERCIAL EFFORTS" SHALL REQUIRE
MERCHANT TO PAY ANY AND ALL COSTS AND EXPENSES FOR THE PAYMENT OF ATTORNEYS AND
OTHER PROFESSIONALS WHOSE SERVICES MAY REASONABLY BE REQUIRED IN CONNECTION WITH
THE PROSECUTION OF THE APPROVAL MOTION AND TO OTHERWISE PROCEED IN ACCORDANCE
WITH SECTION 5.2(A) AND (B) BELOW.
7
(D)
IN THE EVENT AGENT NOTIFIES MERCHANT TO ASSUME AND ASSIGN ANY LEASE, AGENT
SHALL BE SOLELY RESPONSIBLE FOR AND SHALL PAY ANY AND ALL CURE AMOUNTS WITH
RESPECT TO SUCH LEASE ARISING UNDER SECTION 365(B)(1) OF THE BANKRUPTCY CODE;
PROVIDED, HOWEVER, THAT AGENT SHALL NOT BE OBLIGATED TO PAY CURE AMOUNTS ARISING
PRIOR TO THE CLOSING DATE THAT, IN THE AGGREGATE, EXCEED $2.4 MILLION IN RESPECT
OF ALL LEASES ASSUMED AND ASSIGNED, AND MERCHANT SHALL BE SOLELY RESPONSIBLE FOR
ANY CURE AMOUNTS RELATING TO THE LEASES THAT AROSE ON OR PRIOR TO THE CLOSING
DATE IN EXCESS OF $2.4 MILLION.
MERCHANT SHALL BE SOLELY RESPONSIBLE FOR ANY
AND ALL COSTS OF PREPARING OR OBTAINING THE APPROVAL MOTION AND APPROVAL ORDER
AND ANY AGREEMENTS, MOTIONS OR BANKRUPTCY COURT