AND ARE FOUND TO BE UNENFORCEABLE ANTI-ASSIGNMENT PROVISIONS WITHIN
THE MEANING OF SECTIONS 365(F) AND (L) OF THE BANKRUPTCY CODE, (IX) APPROVING
THE PROPOSED DESIGNEE'S CONTEMPLATED USE OF THE STORE GOVERNED BY THE LEASE
IRRESPECTIVE OF WHETHER SUCH USE IS PROHIBITED BY THE LEASE, INCLUDING, WITHOUT
LIMITATION, IN THE CASE OF ANY LEASE TRANSFERRED TO TWEC, THE USE CLAUSE
ATTACHED HERETO AS EXHIBIT 5.3(A), (X) APPROVING THE TRADENAME(S) THAT THE
PROPOSED DESIGNEE INTENDS TO UTILIZE AT THE STORE COVERED BY SUCH LEASE,
INCLUDING, WITHOUT LIMITATION, IN THE CASE OF ANY LEASE TRANSFERRED TO TWEC, THE
FOLLOWING TRADENAMES: COCONUTS, STRAWBERRIES, SECOND SPIN, FYE (FOR YOUR
ENTERTAINMENT), PLANET MUSIC, AND SPEC'S; AND (XI) FINDING THAT THE PROPOSED
DESIGNEE HAS PROVIDED ADEQUATE ASSURANCE OF FUTURE PERFORMANCE.
IF THE HEARING
DATE OF ANY APPROVAL MOTION IS SCHEDULED TO BE HEARD ON A DATE THAT IS LATER
THAN SIX (6) MONTHS FOLLOWING THE CLOSING DATE, SUCH APPROVAL MOTION MAY REQUEST
THAT IN THE EVENT THAT SUCH APPROVAL MOTION IS DENIED, THE APPLICABLE LEASE IS
REJECTED PURSUANT TO SECTION 365 OF THE BANKRUPTCY CODE.
9
(B)
IF A WRITTEN OBJECTION TO AN APPROVAL MOTION IS FILED PRIOR TO THE
EXPIRATION OF THE APPLICABLE OBJECTION PERIOD, WHICH IS AN OBJECTION WHICH WOULD
PROHIBIT OR OTHERWISE PREVENT A PROPERTY CLOSING (AS DEFINED BELOW) FROM
OCCURRING PURSUANT TO THE TERMS OF THIS AGREEMENT AND THE ORDER, MERCHANT SHALL
USE COMMERCIALLY REASONABLE EFFORTS TO CAUSE THE BANKRUPTCY COURT TO HOLD A
HEARING ON THE NEXT SCHEDULED OMNIBUS DATE (OR SUCH EARLIER DATE AS MAY BE
REASONABLY PRACTICABLE) AND RULE ON THE OBJECTION.
MERCHANT AND AGENT SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO HAVE SUCH OBJECTION OVERRULED AND TO OBTAIN A
FINDING THAT AGENT'S DESIGNEE'S PROPOSED USE WILL NOT BREACH THE PROVISIONS OF
ANY LEASE OR REA, PROVIDED, HOWEVER, THAT EACH PARTY HERETO SHALL BEAR THEIR OWN
RESPECTIVE LEGAL FEES, COSTS AND EXPENSES OF RESPONDING TO ANY OBJECTION, AND
ANY APPEAL THEREOF AND OF LITIGATING AND/OR SETTLING ANY OBJECTIONS.
IF THE
OBJECTION IS OVERRULED OR WITHDRAWN, THE PROPERTY CLOSING DATE (AS DEFINED
BELOW) SHALL OCCUR.
IF THE OBJECTION IS UPHELD BY THE BANKRUPTCY COURT, AGENT
SHALL RETAIN ITS MARKETING RIGHTS UNDER THIS SECTION 5 TO SUCH PROPERTY AND THE
GUARANTEED AMOUNT SHALL NOT BE REDUCED (UNLESS THE FAILURE TO OBTAIN SUCH ORDER
WAS DUE TO A FAILURE BY MERCHANT TO SATISFY ANY OF THE PROPERTY CLOSING
CONDITIONS, OR DUE TO ANY ACTION OF MERCHANT WHICH CAUSED ANY OF THE PROPERTY
CLOSING CONDITIONS NOT TO BE SATISFIED, AND NOT DUE TO ANY FAILURE ON THE PART
OF AGENT, INCLUDING THE INABILITY OF A DESIGNEE TO SATISFY THE "ADEQUATE
ASSURANCE" REQUIREMENT OF THE BANKRUPTCY CODE).
(C)
FOLLOWING THE DELIVERY OF A LEASE ASSUMPTION NOTICE (WITH RESPECT TO
LEASES) TO MERCHANT, MERCHANT SHALL EXECUTE AND DELIVER THE DOCUMENTS DESCRIBED
IN SECTION 5.2(F).
(D)
FOLLOWING THE CLOSING DATE, MERCHANT AGREES TO COOPERATE WITH AGENT TO
ARRANGE FOR THE ASSUMPTION AND ASSIGNMENT OF THE LEASES AS PROVIDED IN THIS
AGREEMENT.
WITHOUT LIMITING THE GENERALITY OF THE