required for the
Merchant's consummation of, the transactions contemplated by this Agreement, and
no consent of any third party which will not be obtained prior to the Closing
Date is required therefor.
No contract or other agreement to which the Merchant
is a party or by which the Merchant is otherwise bound will prevent or impair
the consummation of the Sale and the transactions contemplated by this
Agreement.
(D)
COST AND RETAIL PRICE FILES.
MERCHANT HAS MAINTAINED ITS COST AND RETAIL
PRICE FILES IN THE ORDINARY COURSE OF BUSINESS.
ALL COST AND RETAIL PRICE FILES
AND RECORDS SINCE JULY 25, 2003 RELATIVE TO THE MERCHANDISE HAVE BEEN MADE
AVAILABLE TO AGENT.
ALL COST AND RETAIL PRICE FILES AND RECORDS ARE TRUE AND
ACCURATE IN ALL MATERIAL RESPECTS AS TO MERCHANT'S ACTUAL LANDED COST.
(E)
MARKDOWNS.
EXCEPT AS SET FORTH ON THE PROMOTIONS SCHEDULE (AS DEFINED
HEREAFTER), AS OF THE CLOSING DATE, ALL NORMAL COURSE PERMANENT MARKDOWNS ON
INVENTORY WILL HAVE BEEN TAKEN ON A BASIS CONSISTENT WITH MERCHANT'S HISTORICAL
PRACTICES AND POLICIES.
(F)
PRICE INCREASES.
EXCEPT AS SET FORTH ON THE PROMOTIONS SCHEDULE, SINCE
JULY 25, 2003 THROUGH THE CLOSING DATE, OTHER THAN IN THE ORDINARY COURSE OF
BUSINESS, MERCHANT HAS NOT INCREASED, MARKED UP OR RAISED THE PRICE OF ANY ITEMS
OF INVENTORY, OR REMOVED OR ALTERED ANY TICKETS OR ANY INDICIA OF CLEARANCE
MERCHANDISE, INCLUDING THE ELIMINATION OF POINT OF SALE DISCOUNTS.
(G)
SHELF PRICING.
EXCEPT AS SET FORTH ON THE PROMOTIONS SCHEDULE, TO THE BEST
OF MERCHANT'S KNOWLEDGE AND BELIEF, MERCHANT HAS SHELF PRICED OR OTHERWISE
MARKED ALL ITEMS OF INVENTORY RECEIVED AT THE STORES PRIOR TO THE CLOSING DATE,
IN A MANNER CONSISTENT WITH SIMILAR INVENTORY LOCATED AT THE STORES AND IN
ACCORDANCE WITH MERCHANT'S HISTORIC PRACTICES AND POLICIES RELATIVE TO THE
PRICING AND MARKING OF INVENTORY.
(H)
TRANSFERS OF INVENTORY.
MERCHANT HAS NOT PURCHASED OR TRANSFERRED ANY
INVENTORY OUTSIDE THE ORDINARY COURSE OF BUSINESS.
(I)
HISTORIC SALES AND INVENTORY.
EXHIBIT 15.1(I) ATTACHED HERETO SETS FORTH
HISTORIC SALES AT THE STORES FOR THE 4 MONTHS ENDING AUGUST 31, 2003.
(J)
INVENTORY REPLENISHMENT AND MIX AS OF CLOSING DATE.
MERCHANT HAS
REPLENISHED ITS INVENTORY IN A MANNER SUFFICIENT TO MAINTAIN AN INVENTORY MIX
THAT IS SUBSTANTIALLY SIMILAR TO THE INVENTORY MIX AS REPRESENTED BY THE
INVENTORY REPORT DATED AS OF AUGUST 31, 2003, WHICH IS ATTACHED HERETO AS
EXHIBIT 15.1(J).
(K)
USE AND OCCUPANCY.
AS OF THE CLOSING DATE, NO EVENT OF DEFAULT OR EVENT
WHICH WITH THE GIVING OF NOTICE, THE PASSAGE OF TIME, OR BOTH HAS OCCURRED ON
THE PART OF THE MERCHANT UNDER ANY LEASE, RECIPROCAL EASEMENT AGREEMENT OR OTHER
OCCUPANCY AGREEMENT WHICH
24
WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE SALE OTHER THAN DEFAULTS THAT MAY BE
CURED IN ACCORDANCE WITH § 365 OF THE BANKRUPTCY CODE.
FROM AND AFTER THE
CLOSING DATE, SO LONG AS THE REQUIREMENTS OF § 365 OF THE BANKRUPTCY CODE ARE
SATISFIED, THE AGENT SHALL HAVE THE RIGHT TO THE UNENCUMBERED USE AND OCCUPANCY
OF, AND