Common use of Leased Properties Clause in Contracts

Leased Properties. (a) During the Marketing Period for each Leased Property, Agent may 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 Leased Properties, 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, under section 365 of the Bankruptcy Code, to assume and assign to a third party (including, without limitation, Agent or any member of Agent) designated by the Agent (each a “Leased Property Designee”) any or all of the Leases at no additional cost or expense to the Agent (excepting Cure Amounts solely related to Agent’s failure to pay rent and other occupancy expenses for periods occurring after the Closing Date (as hereinafter defined)). (c) Within five (5) business days following the date upon which Agent delivers a Lease Assumption Notice to Merchant, or on such longer term as Agent may designate in its sole and absolute discretion, Merchant shall take all requisite actions and direct its professionals to take all requisite actions (including, without limitation, actions required to obtain approval under section 365 of the Bankruptcy Code) to assume and assign to a Leased Property Designee the Lease(s) designated by Agent. (d) Without limiting the generality of the foregoing, upon receipt of a Lease Assumption Notice, Merchant shall use its reasonable best efforts to obtain the entry of an order of the Bankruptcy Court approving the assumption of the Lease or Leases identified in such Lease Assumption Notice and the assignment of such Lease or Leases to such Leased Property Designee. (e) In the event Agent elects to require Merchant to assume and assign any Lease, Merchant shall pay any and all cure amounts (“Cure Amounts”) with respect to such Lease arising under section 365(b)(1) of the Bankruptcy Code (excepting cure costs solely related to Agent’s failure to pay rent and other occupancy expenses for periods occurring after the Closing Date). Any claim Agent has against Merchant resulting from Merchant’s failure to pay Cure Amounts shall constitute an administrative expense claim with superpriority status pursuant to section 364(c) of the Bankruptcy Code and shall rank senior in priority to all secured indebtedness and other expenses of administration, and shall be secured by the Guaranteed Amount paid by the Agent. (f) Notwithstanding anything contained herein to the contrary, Merchant covenants and agrees to pay to the lessors under the Store Lease(s) when due all amounts payable under the Lease(s), including, without limitation, base rent, taxes and percentage rent, from the Closing Date through the Leased Property Termination Date, which amounts to the extent that they are an “Expense” hereunder shall be reimbursed by Agent; provided that if the Leased Property Termination Date for a Store is (i) a day that is in the first fifteen (15) days of any calendar month, the pro rata payment of the monthly rent through the fifteenth (15th) day of such month shall be an “Expense”; (ii) a day that is after the first fifteen (15) days of a calendar month, any pro rata payment of the monthly rent through such date only shall be an “Expense.” For the avoidance of doubt, Merchant’s sole obligation in respect of the Distribution Centers shall be to pay per diem Distribution Center Occupancy Expenses set forth on Exhibit 7.1(l) in an aggregate amount not to exceed $800,000 (g) At any time prior to the expiration of the Marketing Period for any Leased Property, 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 “Dropout Notice”) of Agent’s election to discontinue its efforts to market and attempt to sell such Leased Property. Upon the seventh (7th) business day following the delivery of a Dropout Notice (or such later date specified in such Dropout Notice) (the “Dropout Date”) by Agent to Merchant with respect to any Leased Property, Agent shall have no further obligation or liability with respect thereto and Merchant shall be solely responsible for all amounts payable or other obligations or liabilities that may be owed in connection with such Leased Property (including, without limitation, any damages resulting from the rejection of the Lease applicable to any such Leased Property under section 365 of the Bankruptcy Code or otherwise). Notwithstanding anything herein to the contrary, the cost and expenses of the rejection at any time of any one or more Leases, including the filing and prosecuting of any motions or other papers with respect to the same, shall be borne solely by Merchant and paid for solely by Merchant and its chapter 11 estate, and such cost and expenses shall not be treated as an “Expense” hereunder. (h) Subject to Section 7.1(l), Merchant shall have the right to use the Distribution Centers to dispose of any FF&E located in the Distribution Centers for up to the first four (4) weeks of the Sale Term (as determined by the Agent in its reasonable discretion).

Leased Properties. Section 1.01. In consideration of the terms and conditions contained in this Lease Agreement, Lessor permits, authorizes and allows Lessee to use and maintain the equipment (collectively “Lessee’s Equipment”), described on Exhibit C attached hereto and made part hereof, on the Roof and within the Building, and leases unto Lessee that portion of space on the Roof designated in Exhibit A subject to all the terms and conditions contained herein and that portion of the space in the Building designed in Exhibit B subject to the terms and conditions contained herein. Lessor also permits, authorizes and allows Lessee the right to limited access to the Premises subject to those rules and regulations set forth in Exhibit D (the “Policies and Procedures for Equipment Installations”) attached hereto and made a part hereto, and the other terms and conditions of this Lease Agreement. (a) During If at any time six (6) months after the Marketing Period Commencement Date, as hereinafter defined, Lessor determines that the portion of the Roof or the portion of this Building accommodating Lessee’s Equipment is required for each Leased PropertyLessor’s antennas and lines or other equipment for Lessor’s transition to other systems, Agent may market Lessor may, at its sole cost and attempt expense, move or relocate Lessee’s Equipment located on or within such portion of the Roof and/or Building to assign a different position on the LeasesRoof or within the Building reasonably agreeable to the Lessee. Lessor shall provide Lessee a minimum of six (6) months written notice prior to the commencement of any such relocation of Lessee’s Equipment on the Roof or in the Building. (b) Subject to In the limitations set forth event of any relocation of Lessee’s Equipment in accordance with Section 10.3(c1.02(a) hereofabove, at any time prior to the expiration of the Marketing Period for Leased Properties, Agent Lessee shall have the right, which right may be exercised at any time and from time option to time in Agentterminate this Lease Agreement as of the date designated by Lessor for such relocation. Lessee shall provide Lessor with written notice of its election to terminate this agreement not less than sixty (60) days following Lessor’s sole and absolute discretion, to provide notice to Merchant (each Lessee of Lessor’s intention to relocate a portion of Lessee’s Equipment as required under Section 1.02(a) above. Any such notice, a “Lease Assumption Notice”) of Agentrelocation shall be made at Lessor’s election to require Merchant, under section 365 of the Bankruptcy Code, to assume and assign to a third party (including, without limitation, Agent or any member of Agent) designated by the Agent (each a “Leased Property Designee”) any or all of the Leases at no additional cost or expense to the Agent (excepting Cure Amounts solely related to Agent’s failure to pay rent and other occupancy expenses for periods occurring after the Closing Date (as hereinafter defined))expense. (c) Within five (5) business days following Lessee hereby releases Lessor from any liability, loss, damage, cost or expense related to Lessee’s inability to transmit or receive during the date upon which Agent delivers a Lease Assumption Notice to Merchantphysical relocation of any of Lessee’s Equipment in accordance with this Section 1.02(a), or on such longer term as Agent may designate due to the Lessee’s decision to exercise its option to terminate this Agreement in its sole and absolute discretion, Merchant shall take all requisite actions and direct its professionals to take all requisite actions (including, without limitation, actions required to obtain approval under section 365 accordance with Section 1.02(b) above. Section 1.03. Except for the portion of the Bankruptcy CodeRoof and the portion in the Building leased to Lessee (which is subject to relocation under Section 1.02(a)), nothing contained in this Lease Agreement shall be deemed to entitle Lessee to the exclusive possession of any other portion of the Roof or Building, it being the intention of the parties that as many other lessees as possible be accommodated upon the Roof and within the Building. Lessee shall cooperate with Lessor, when such cooperation is requested by Lessor, in connection with the installation of any new equipment or facilities (whether for the use of Lessor or any other lessee) to assume and assign to a Leased Property Designee be installed on the Lease(s) designated by Agent. (d) Without limiting the generality Roof or in any portion of the foregoing, upon receipt of a Lease Assumption Notice, Merchant shall use its reasonable best efforts to obtain the entry of an order of the Bankruptcy Court approving the assumption of the Lease or Leases identified in such Lease Assumption Notice and the assignment of such Lease or Leases to such Leased Property Designee. (e) In the event Agent elects to require Merchant to assume and assign any Lease, Merchant shall pay any and all cure amounts (“Cure Amounts”) with respect to such Lease arising under section 365(b)(1) of the Bankruptcy Code (excepting cure costs solely related to Agent’s failure to pay rent and other occupancy expenses for periods occurring after the Closing Date). Any claim Agent has against Merchant resulting from Merchant’s failure to pay Cure Amounts shall constitute an administrative expense claim with superpriority status pursuant to section 364(c) of the Bankruptcy Code and shall rank senior in priority to all secured indebtedness and other expenses of administration, and shall be secured by the Guaranteed Amount paid by the Agent. (f) Notwithstanding anything contained herein to the contrary, Merchant covenants and agrees to pay to the lessors under the Store Lease(s) when due all amounts payable under the Lease(s)Building, including, without limitation, base rentceasing use of Lessee’s Equipment for short periods of time to accommodate the construction and installation of new equipment or new facilities. Notwithstanding the foregoing, taxes and percentage rentLessor may relocate Lessee, from temporarily or permanently, for reasons of emergency preparedness, whenever such is required for the Closing Date through the Leased Property Termination Date, which amounts to the extent that they are an “Expense” hereunder public safety. Lessee shall be reimbursed by Agent; provided entitled to a diminution on the Monthly Lease Fee, as that term is hereinafter defined, if the Leased Property Termination Date for a Store is (i) a day that is such relocation materially affects Lessee’s ability to transmit and receive radio signals in the first fifteen frequencies indicated in Exhibit C. If such a relocation as provided in this section is reasonably unacceptable to Lessee, Lessee may terminate this Lease Agreement following ninety (1590) days written notice as provided in Section 10.02 herein. Section 1.04. All Lessee’s Equipment installed or brought upon the Premises by Lessee shall remain the sole property of any calendar month, the pro rata payment of the monthly rent through the fifteenth (15th) day of such month shall be an “Expense”; (ii) a day that is after the first fifteen (15) days of a calendar month, any pro rata payment of the monthly rent through such date only shall be an “Expense.” For the avoidance of doubt, Merchant’s sole obligation in respect of the Distribution Centers shall be to pay per diem Distribution Center Occupancy Expenses set forth on Exhibit 7.1(l) in an aggregate amount not to exceed $800,000 (g) At any time prior to the expiration of the Marketing Period for any Leased Property, 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 “Dropout Notice”) of Agent’s election to discontinue its efforts to market and attempt to sell such Leased Property. Upon the seventh (7th) business day following the delivery of a Dropout Notice (or such later date specified in such Dropout Notice) (the “Dropout Date”) by Agent to Merchant with respect to any Leased Property, Agent shall have no further obligation or liability with respect thereto and Merchant shall be solely responsible for all amounts payable or other obligations or liabilities that may be owed in connection with such Leased Property (including, without limitation, any damages resulting from the rejection of the Lease applicable to any such Leased Property under section 365 of the Bankruptcy Code or otherwise). Notwithstanding anything herein to the contrary, the cost and expenses of the rejection at any time of any one or more Leases, including the filing and prosecuting of any motions or other papers with respect to the sameLessee, shall be borne solely installed by Merchant Lessee in accordance with Article II and paid for solely other provisions of this Lease Agreement, shall be maintained and repaired by Merchant Lessee in accordance with Article V and its chapter 11 estateother provisions of this Lease Agreement, shall be insured in accordance with Article VII and such cost other provisions of this Lease Agreement and expenses upon expiration or termination of this Lease Agreement shall not be treated as an “Expense” hereunderremoved from the Premises in accordance with Article X and other provisions of this Lease Agreement. (h) Subject to Section 7.1(l), Merchant shall have the right to use the Distribution Centers to dispose of any FF&E located in the Distribution Centers for up to the first four (4) weeks of the Sale Term (as determined by the Agent in its reasonable discretion).

Leased Properties. If BNY or any of its Affiliates is party to a lease with respect to any real property that is part of the Excluded Banking Premises (awhich lease contains at least one unexercised renewal option), and BNY or its applicable Affiliate does not desire to renew such lease, then at least sixty (60) During the Marketing Period for each Leased Property, Agent may market and attempt to assign the Leases. (b) Subject to the limitations set forth in Section 10.3(c) hereof, at any time days prior to the expiration last date on which such lease may be renewed, and prior to providing any written notice to the landlord under such lease that BNY or its Affiliates does not intend to renew such lease, BNY shall notify JPM in writing of its intent (the "NON-RENEWAL NOTICE"), and shall provide JPM with a written copy of the Marketing Period for Leased Propertieslease all amendments and modifications thereto and all material correspondence files, Agent shall have together with all other documents relating to the rightlease as JPM may reasonably request. Within thirty (30) days of its receipt of the Non-Renewal Notice, which right JPM may be exercised at any time and from time notify BNY that it desires to time in Agent’s sole and absolute discretion, to provide occupy such leased premises. If JPM provides such notice to Merchant (each BNY, then BNY or its applicable Affiliate shall renew such noticelease in a timely manner and, a “Lease Assumption Notice”) of Agent’s election to require Merchant, under section 365 as of the Bankruptcy Code, to assume and assign to a third party (including, without limitation, Agent or any member of Agent) designated by the Agent (each a “Leased Property Designee”) any or all commencement date of the Leases at no additional cost renewal term, BNY shall sublet the space covered by such lease on the same economic terms and for the same duration as BNY or expense to its applicable Affiliate is leasing such space from the Agent (excepting Cure Amounts solely related to Agent’s failure to pay rent and other occupancy expenses for periods occurring after landlord; PROVIDED, HOWEVER, that, if such sublet would require consent of the Closing Date (as hereinafter defined)). (c) Within five (5) business days following the date upon which Agent delivers a Lease Assumption Notice to Merchantlandlord, then, then BNY or on such longer term as Agent may designate in its sole and absolute discretion, Merchant applicable Affiliate shall take all requisite actions and direct its professionals to take all requisite actions (including, without limitation, actions be required to obtain approval under section 365 renew the lease and sublet the space to JPM only if it receives such consent of the Bankruptcy Code) to assume landlord; PROVIDED, FURTHER, that, in such case, BNY and assign to a Leased Property Designee the Lease(s) designated by Agent. (d) Without limiting the generality of the foregoing, upon receipt of a Lease Assumption Notice, Merchant its applicable Affiliates shall use its reasonable best efforts to obtain such consent and to permit JPM to participate in any discussions with the entry of an order of the Bankruptcy Court approving the assumption of the Lease or Leases identified in landlord to obtain such Lease Assumption Notice and the assignment of such Lease or Leases to such Leased Property Designeeconsent. (e) In the event Agent elects to require Merchant to assume and assign any Lease, Merchant shall pay any and all cure amounts (“Cure Amounts”) with respect to such Lease arising under section 365(b)(1) of the Bankruptcy Code (excepting cure costs solely related to Agent’s failure to pay rent and other occupancy expenses for periods occurring after the Closing Date). Any claim Agent has against Merchant resulting from Merchant’s failure to pay Cure Amounts shall constitute an administrative expense claim with superpriority status pursuant to section 364(c) of the Bankruptcy Code and shall rank senior in priority to all secured indebtedness and other expenses of administration, and shall be secured by the Guaranteed Amount paid by the Agent. (f) Notwithstanding anything contained herein to the contrary, Merchant covenants and agrees to pay to the lessors under the Store Lease(s) when due all amounts payable under the Lease(s), including, without limitation, base rent, taxes and percentage rent, from the Closing Date through the Leased Property Termination Date, which amounts to the extent that they are an “Expense” hereunder shall be reimbursed by Agent; provided that if the Leased Property Termination Date for a Store is (i) a day that is in the first fifteen (15) days of any calendar month, the pro rata payment of the monthly rent through the fifteenth (15th) day of such month shall be an “Expense”; (ii) a day that is after the first fifteen (15) days of a calendar month, any pro rata payment of the monthly rent through such date only shall be an “Expense.” For the avoidance of doubt, Merchant’s sole obligation in respect of the Distribution Centers shall be to pay per diem Distribution Center Occupancy Expenses set forth on Exhibit 7.1(l) in an aggregate amount not to exceed $800,000 (g) At any time prior to the expiration of the Marketing Period for any Leased Property, 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 “Dropout Notice”) of Agent’s election to discontinue its efforts to market and attempt to sell such Leased Property. Upon the seventh (7th) business day following the delivery of a Dropout Notice (or such later date specified in such Dropout Notice) (the “Dropout Date”) by Agent to Merchant with respect to any Leased Property, Agent shall have no further obligation or liability with respect thereto and Merchant shall be solely responsible for all amounts payable or other obligations or liabilities that may be owed in connection with such Leased Property (including, without limitation, any damages resulting from the rejection of the Lease applicable to any such Leased Property under section 365 of the Bankruptcy Code or otherwise). Notwithstanding anything herein to the contrary, the cost and expenses of the rejection at any time of any one or more Leases, including the filing and prosecuting of any motions or other papers with respect to the same, shall be borne solely by Merchant and paid for solely by Merchant and its chapter 11 estate, and such cost and expenses shall not be treated as an “Expense” hereunder. (h) Subject to Section 7.1(l), Merchant shall have the right to use the Distribution Centers to dispose of any FF&E located in the Distribution Centers for up to the first four (4) weeks of the Sale Term (as determined by the Agent in its reasonable discretion).

Leased Properties. If BNY or any of its Affiliates is party to a lease with respect to any real property that is part of the Excluded Banking Premises (awhich lease contains at least one unexercised renewal option), and BNY or its applicable Affiliate does not desire to renew such lease, then at least sixty (60) During the Marketing Period for each Leased Property, Agent may market and attempt to assign the Leases. (b) Subject to the limitations set forth in Section 10.3(c) hereof, at any time days prior to the expiration last date on which such lease may be renewed, and prior to providing any written notice to the landlord under such lease that BNY or its Affiliates does not intend to renew such lease, BNY shall notify JPM in writing of its intent (the "Non-Renewal Notice"), and shall provide JPM with a written copy of the Marketing Period for Leased Propertieslease all amendments and modifications thereto and all material correspondence files, Agent shall have together with all other documents relating to the rightlease as JPM may reasonably request. Within thirty (30) days of its receipt of the Non-Renewal Notice, which right JPM may be exercised at any time and from time notify BNY that it desires to time in Agent’s sole and absolute discretion, to provide occupy such leased premises. If JPM provides such notice to Merchant (each BNY, then BNY or its applicable Affiliate shall renew such noticelease in a timely manner and, a “Lease Assumption Notice”) of Agent’s election to require Merchant, under section 365 as of the Bankruptcy Code, to assume and assign to a third party (including, without limitation, Agent or any member of Agent) designated by the Agent (each a “Leased Property Designee”) any or all commencement date of the Leases at no additional cost renewal term, BNY shall sublet the space covered by such lease on the same economic terms and for the same duration as BNY or expense to its applicable Affiliate is leasing such space from the Agent (excepting Cure Amounts solely related to Agent’s failure to pay rent and other occupancy expenses for periods occurring after landlord; provided, however, that, if such sublet would require consent of the Closing Date (as hereinafter defined)). (c) Within five (5) business days following the date upon which Agent delivers a Lease Assumption Notice to Merchantlandlord, then, then BNY or on such longer term as Agent may designate in its sole and absolute discretion, Merchant applicable Affiliate shall take all requisite actions and direct its professionals to take all requisite actions (including, without limitation, actions be required to obtain approval under section 365 renew the lease and sublet the space to JPM only if it receives such consent of the Bankruptcy Code) to assume landlord; provided, further, that, in such case, BNY and assign to a Leased Property Designee the Lease(s) designated by Agent. (d) Without limiting the generality of the foregoing, upon receipt of a Lease Assumption Notice, Merchant its applicable Affiliates shall use its reasonable best efforts to obtain such consent and to permit JPM to participate in any discussions with the entry of an order of the Bankruptcy Court approving the assumption of the Lease or Leases identified in landlord to obtain such Lease Assumption Notice and the assignment of such Lease or Leases to such Leased Property Designeeconsent. (e) In the event Agent elects to require Merchant to assume and assign any Lease, Merchant shall pay any and all cure amounts (“Cure Amounts”) with respect to such Lease arising under section 365(b)(1) of the Bankruptcy Code (excepting cure costs solely related to Agent’s failure to pay rent and other occupancy expenses for periods occurring after the Closing Date). Any claim Agent has against Merchant resulting from Merchant’s failure to pay Cure Amounts shall constitute an administrative expense claim with superpriority status pursuant to section 364(c) of the Bankruptcy Code and shall rank senior in priority to all secured indebtedness and other expenses of administration, and shall be secured by the Guaranteed Amount paid by the Agent. (f) Notwithstanding anything contained herein to the contrary, Merchant covenants and agrees to pay to the lessors under the Store Lease(s) when due all amounts payable under the Lease(s), including, without limitation, base rent, taxes and percentage rent, from the Closing Date through the Leased Property Termination Date, which amounts to the extent that they are an “Expense” hereunder shall be reimbursed by Agent; provided that if the Leased Property Termination Date for a Store is (i) a day that is in the first fifteen (15) days of any calendar month, the pro rata payment of the monthly rent through the fifteenth (15th) day of such month shall be an “Expense”; (ii) a day that is after the first fifteen (15) days of a calendar month, any pro rata payment of the monthly rent through such date only shall be an “Expense.” For the avoidance of doubt, Merchant’s sole obligation in respect of the Distribution Centers shall be to pay per diem Distribution Center Occupancy Expenses set forth on Exhibit 7.1(l) in an aggregate amount not to exceed $800,000 (g) At any time prior to the expiration of the Marketing Period for any Leased Property, 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 “Dropout Notice”) of Agent’s election to discontinue its efforts to market and attempt to sell such Leased Property. Upon the seventh (7th) business day following the delivery of a Dropout Notice (or such later date specified in such Dropout Notice) (the “Dropout Date”) by Agent to Merchant with respect to any Leased Property, Agent shall have no further obligation or liability with respect thereto and Merchant shall be solely responsible for all amounts payable or other obligations or liabilities that may be owed in connection with such Leased Property (including, without limitation, any damages resulting from the rejection of the Lease applicable to any such Leased Property under section 365 of the Bankruptcy Code or otherwise). Notwithstanding anything herein to the contrary, the cost and expenses of the rejection at any time of any one or more Leases, including the filing and prosecuting of any motions or other papers with respect to the same, shall be borne solely by Merchant and paid for solely by Merchant and its chapter 11 estate, and such cost and expenses shall not be treated as an “Expense” hereunder. (h) Subject to Section 7.1(l), Merchant shall have the right to use the Distribution Centers to dispose of any FF&E located in the Distribution Centers for up to the first four (4) weeks of the Sale Term (as determined by the Agent in its reasonable discretion).

Leased Properties. If BNY or any of its Affiliates is party to a lease with respect to any real property that is part of the Excluded Banking Premises (awhich lease contains at least one unexercised renewal option), and BNY or its applicable Affiliate does not desire to renew such lease, then at least sixty (60) During the Marketing Period for each Leased Property, Agent may market and attempt to assign the Leases. (b) Subject to the limitations set forth in Section 10.3(c) hereof, at any time days prior to the expiration last date on which such lease may be renewed, and prior to providing any written notice to the landlord under such lease that BNY or its Affiliates does not intend to renew such lease, BNY shall notify JPM in writing of its intent (the “Non-Renewal Notice”), and shall provide JPM with a written copy of the Marketing Period for Leased Propertieslease all amendments and modifications thereto and all material correspondence files, Agent shall have together with all other documents relating to the rightlease as JPM may reasonably request. Within thirty (30) days of its receipt of the Non-Renewal Notice, which right JPM may be exercised at any time and from time notify BNY that it desires to time in Agent’s sole and absolute discretion, to provide occupy such leased premises. If JPM provides such notice to Merchant (each BNY, then BNY or its applicable Affiliate shall renew such noticelease in a timely manner and, a “Lease Assumption Notice”) of Agent’s election to require Merchant, under section 365 as of the Bankruptcy Code, to assume and assign to a third party (including, without limitation, Agent or any member of Agent) designated by the Agent (each a “Leased Property Designee”) any or all commencement date of the Leases at no additional cost renewal term, BNY shall sublet the space covered by such lease on the same economic terms and for the same duration as BNY or expense to its applicable Affiliate is leasing such space from the Agent (excepting Cure Amounts solely related to Agent’s failure to pay rent and other occupancy expenses for periods occurring after landlord; provided, however, that, if such sublet would require consent of the Closing Date (as hereinafter defined)). (c) Within five (5) business days following the date upon which Agent delivers a Lease Assumption Notice to Merchantlandlord, then, then BNY or on such longer term as Agent may designate in its sole and absolute discretion, Merchant applicable Affiliate shall take all requisite actions and direct its professionals to take all requisite actions (including, without limitation, actions be required to obtain approval under section 365 renew the lease and sublet the space to JPM only if it receives such consent of the Bankruptcy Code) to assume landlord; provided, further, that, in such case, BNY and assign to a Leased Property Designee the Lease(s) designated by Agent. (d) Without limiting the generality of the foregoing, upon receipt of a Lease Assumption Notice, Merchant its applicable Affiliates shall use its reasonable best efforts to obtain such consent and to permit JPM to participate in any discussions with the entry of an order of the Bankruptcy Court approving the assumption of the Lease or Leases identified in landlord to obtain such Lease Assumption Notice and the assignment of such Lease or Leases to such Leased Property Designeeconsent. (e) In the event Agent elects to require Merchant to assume and assign any Lease, Merchant shall pay any and all cure amounts (“Cure Amounts”) with respect to such Lease arising under section 365(b)(1) of the Bankruptcy Code (excepting cure costs solely related to Agent’s failure to pay rent and other occupancy expenses for periods occurring after the Closing Date). Any claim Agent has against Merchant resulting from Merchant’s failure to pay Cure Amounts shall constitute an administrative expense claim with superpriority status pursuant to section 364(c) of the Bankruptcy Code and shall rank senior in priority to all secured indebtedness and other expenses of administration, and shall be secured by the Guaranteed Amount paid by the Agent. (f) Notwithstanding anything contained herein to the contrary, Merchant covenants and agrees to pay to the lessors under the Store Lease(s) when due all amounts payable under the Lease(s), including, without limitation, base rent, taxes and percentage rent, from the Closing Date through the Leased Property Termination Date, which amounts to the extent that they are an “Expense” hereunder shall be reimbursed by Agent; provided that if the Leased Property Termination Date for a Store is (i) a day that is in the first fifteen (15) days of any calendar month, the pro rata payment of the monthly rent through the fifteenth (15th) day of such month shall be an “Expense”; (ii) a day that is after the first fifteen (15) days of a calendar month, any pro rata payment of the monthly rent through such date only shall be an “Expense.” For the avoidance of doubt, Merchant’s sole obligation in respect of the Distribution Centers shall be to pay per diem Distribution Center Occupancy Expenses set forth on Exhibit 7.1(l) in an aggregate amount not to exceed $800,000 (g) At any time prior to the expiration of the Marketing Period for any Leased Property, 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 “Dropout Notice”) of Agent’s election to discontinue its efforts to market and attempt to sell such Leased Property. Upon the seventh (7th) business day following the delivery of a Dropout Notice (or such later date specified in such Dropout Notice) (the “Dropout Date”) by Agent to Merchant with respect to any Leased Property, Agent shall have no further obligation or liability with respect thereto and Merchant shall be solely responsible for all amounts payable or other obligations or liabilities that may be owed in connection with such Leased Property (including, without limitation, any damages resulting from the rejection of the Lease applicable to any such Leased Property under section 365 of the Bankruptcy Code or otherwise). Notwithstanding anything herein to the contrary, the cost and expenses of the rejection at any time of any one or more Leases, including the filing and prosecuting of any motions or other papers with respect to the same, shall be borne solely by Merchant and paid for solely by Merchant and its chapter 11 estate, and such cost and expenses shall not be treated as an “Expense” hereunder. (h) Subject to Section 7.1(l), Merchant shall have the right to use the Distribution Centers to dispose of any FF&E located in the Distribution Centers for up to the first four (4) weeks of the Sale Term (as determined by the Agent in its reasonable discretion).

Leased Properties. (a) During the Marketing Period for each Leased PropertyLease, unless otherwise mutually agreed by the parties, Agent may 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 Leased PropertiesLeases, 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, under section 365 of Merchant to seek approval from the Bankruptcy Code, Court to assume and assign one or more Leases to a third any such party (includingas Agent shall designate, without limitationincluding Agent, Agent or any member an affiliate of Agent) designated by the Agent , or TWEC (each each, a “Leased Property Designee”) any or all ). Each Lease Assumption Notice shall include such information relating to the proposed designee, its proposed use of the Leases at no additional cost Property and such other information or expense 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 (excepting Cure Amounts solely related shall the next day notify Merchant of its assumption of sufficient leases to Agent’s failure cause such representation to pay rent and other occupancy expenses for periods occurring after be met by the Closing Date (as hereinafter defined))last day of the Marketing Period. (c) Within five (5) business days following the date upon which Agent delivers Merchant receives a Lease Assumption Notice to Merchantfrom Agent, or on such longer term as Agent may designate in its sole and absolute discretion, Merchant shall take all requisite actions file an Approval Motion (as defined below) with the Bankruptcy Court and direct its professionals to take all requisite actions (including, without limitation, actions required Merchant shall thereafter use reasonable commercial efforts to obtain approval under section 365 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 Bankruptcy CodeApproval Motion and to otherwise proceed in accordance with Section 5.2(a) to assume and assign to a Leased Property Designee the Lease(s(b) designated by Agentbelow. (d) Without limiting the generality of the foregoing, upon receipt of a Lease Assumption Notice, Merchant shall use its reasonable best efforts to obtain the entry of an order of the Bankruptcy Court approving the assumption of the Lease or Leases identified in such Lease Assumption Notice and the assignment of such Lease or Leases to such Leased Property Designee. (e) In the event Agent elects to require notifies Merchant to assume and assign any Lease, Merchant Agent shall be solely responsible for and shall pay any and all cure amounts (“Cure Amounts”) with respect to such Lease arising under section 365(b)(1) of the Bankruptcy Code 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 orders necessary to implement the assumption and assignment of any Lease which Agent notifies Merchant to assume and assign. The Leased Property Designee shall be responsible for and shall pay all amounts, liabilities, and obligations under such Lease from and after the Property Closing Date. (excepting cure costs solely related e) Agent shall have the right to direct the Merchant to seek Bankruptcy Court approval to assume and assign any of the Leases to Agent’s failure , any affiliate of Agent, or TWEC subject to the procedures and limitations set forth above as if the Agent, such affiliate, or TWEC was a Leased Property Designee. If a Bankruptcy Court order is entered assuming and assigning any Lease to Agent, any affiliate of Agent, or TWEC, Agent, such affiliate, or TWEC shall be solely responsible for and shall pay rent all amounts, liabilities and other occupancy expenses for periods occurring obligations arising under such Lease from and after the Property Closing Date). Any claim Agent has against Merchant resulting from Merchant’s failure to pay Cure Amounts shall constitute an administrative expense claim with superpriority status pursuant to section 364(c) of the Bankruptcy Code and shall rank senior in priority to all secured indebtedness and other expenses of administration, and shall be secured by the Guaranteed Amount paid by the Agent. (f) Notwithstanding anything contained herein to the contrary, Merchant covenants and agrees to pay to the lessors under the Store Lease(s) when due all amounts payable under the Lease(s), including, without limitation, base rent, taxes and percentage rent, from the Closing Date through the Leased Property Termination Date, which amounts to the extent that they are an “Expense” hereunder shall be reimbursed by Agent; provided that if the Leased Property Termination Date for a Store is (i) a day that is in the first fifteen (15) days of any calendar month, the pro rata payment of the monthly rent through the fifteenth (15th) day of such month shall be an “Expense”; (ii) a day that is after the first fifteen (15) days of a calendar month, any pro rata payment of the monthly rent through such date only shall be an “Expense.” For the avoidance of doubt, Merchant’s sole obligation in respect of the Distribution Centers shall be to pay per diem Distribution Center Occupancy Expenses set forth on Exhibit 7.1(l) in an aggregate amount not to exceed $800,000 (g) At any time prior to the expiration of the Marketing Period for any Leased PropertyLease, 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 “Dropout Notice”) of Agent’s election to discontinue its efforts to market and attempt to sell such Leased Property. Upon the seventh (7th) business day following Lease; provided that the delivery of a such Dropout Notice (shall not make Agent’s performance of the representation of Section 15.2(e) impossible. A Dropout Notice may be delivered with respect to a property for which a Lease Assumption Notice shall have been previously delivered in the event that a condition to the closing of the transfer of the Lease to the proposed designee shall not have been satisfied. The Guaranteed Amount shall not be reduced by such exclusion of properties unless the exclusion was a result of, or based upon, the failure by Merchant to execute and deliver such later date specified in closing documents or otherwise take such Dropout Notice) actions as are required to be delivered and taken under this Agreement (the “Dropout DateProperty Closing Conditions”) to the proposed designee, in which case the Guaranteed Amount shall be reduced by the reasonable value of the applicable Lease, as reasonably determined by the parties (with any disputes to be adjudicated by the Bankruptcy Court). Agent agrees to Merchant deliver any Dropout Notice no later than fifteen (15) days prior to the 1st day of any month. As of the Leased Property Termination Date with respect to any Leased PropertyLease, Agent shall have no further obligation or liability with respect thereto and Merchant shall be solely responsible for all amounts payable or other obligations or liabilities that may be owed in connection with such Leased Property Lease (including, without limitation, any damages resulting from the rejection of the Lease applicable to any such Leased Property Lease under section 365 of the Bankruptcy Code or otherwise). Notwithstanding anything herein to the contrary, regardless of whether Agent directs Merchant to reject any one or more Leases at any time, the cost and expenses of the rejection at any time of any one or more Leases, including the filing and prosecuting of any motions or other papers with respect to the same, shall be borne solely by Merchant and paid for solely by Merchant and its chapter 11 estate, and such cost and expenses shall not be treated as an “Expense” hereunderMerchant. (h) Subject to Section 7.1(l), Merchant shall have the right to use the Distribution Centers to dispose of any FF&E located in the Distribution Centers for up to the first four (4) weeks of the Sale Term (as determined by the Agent in its reasonable discretion).