DESCRIPTION OF ALL SUCH POLICIES.
PRIOR
TO THE CLOSING DATE, AGENT SHALL DELIVER TO MERCHANT CERTIFICATES EVIDENCING
SUCH INSURANCE POLICIES SETTING FORTH THE DURATION THEREOF AND NAMING MERCHANT
AS AN ADDITIONAL INSURED, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
MERCHANT.
IN THE EVENT OF A CLAIM UNDER ANY SUCH POLICIES AGENT SHALL BE
RESPONSIBLE FOR THE PAYMENT OF ALL DEDUCTIBLES, RETENTIONS OR SELF-INSURED
AMOUNTS THEREUNDER IF SUCH CLAIMS ARE DIRECTLY ATTRIBUTABLE TO THE NEGLIGENCE OF
AGENT.
18.4
WORKER'S COMPENSATION INSURANCE.
MERCHANT SHALL AT ALL TIMES
MAINTAIN WORKER'S COMPENSATION INSURANCE (INCLUDING EMPLOYER LIABILITY
INSURANCE) COVERING ALL RETAINED EMPLOYEES IN COMPLIANCE WITH ALL STATUTORY
REQUIREMENTS.
PRIOR TO THE CLOSING DATE, MERCHANT SHALL DELIVER TO AGENT A
CERTIFICATE OF MERCHANT'S INSURANCE BROKER OR CARRIER EVIDENCING SUCH INSURANCE.
18.5
RISK OF LOSS.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS
AGREEMENT, MERCHANT ACKNOWLEDGES THAT AGENT IS CONDUCTING THE SALE ON BEHALF OF
MERCHANT SOLELY IN THE CAPACITY OF
30
AN AGENT, AND THAT IN SUCH CAPACITY (I) AGENT SHALL NOT BE DEEMED TO BE IN
POSSESSION OR CONTROL OF THE STORES OR THE ASSETS LOCATED THEREIN OR ASSOCIATED
THEREWITH, OR OF MERCHANT'S EMPLOYEES LOCATED AT THE STORES, AND (II) EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT, AGENT DOES NOT ASSUME ANY OF MERCHANT'S
OBLIGATIONS OR LIABILITIES WITH RESPECT TO ANY OF THE FOREGOING.
MERCHANT AND
AGENT AGREE THAT MERCHANT SHALL BEAR ALL RESPONSIBILITY FOR LIABILITY CLAIMS OF
CUSTOMERS, EMPLOYEES AND OTHER PERSONS ARISING FROM EVENTS OCCURRING AT THE
STORES DURING AND AFTER THE SALE TERM, EXCEPT TO THE EXTENT ANY SUCH CLAIM
ARISES DIRECTLY FROM THE ACTS OR OMISSIONS OF AGENT, OR ITS SUPERVISORS OR
EMPLOYEES LOCATED AT THE STORES (AN "AGENT CLAIM").
IN THE EVENT OF ANY SUCH
LIABILITY CLAIM OTHER THAN AN AGENT CLAIM, MERCHANT SHALL ADMINISTER SUCH CLAIM
AND SHALL PRESENT SUCH CLAIM TO MERCHANT'S LIABILITY INSURANCE CARRIER IN
ACCORDANCE WITH MERCHANT'S HISTORIC POLICIES AND PROCEDURES, AND SHALL PROVIDE A
COPY OF THE INITIAL DOCUMENTATION RELATING TO SUCH CLAIM TO AGENT.
TO THE
EXTENT THAT MERCHANT AND AGENT AGREE THAT A CLAIM CONSTITUTES AN AGENT CLAIM,
AGENT SHALL ADMINISTER SUCH CLAIM AND SHALL PRESENT SUCH CLAIM TO ITS LIABILITY
INSURANCE CARRIER, AND SHALL PROVIDE A COPY OF THE INITIAL DOCUMENTATION
RELATING TO SUCH CLAIM TO MERCHANT.
IN THE EVENT THAT MERCHANT AND AGENT CANNOT
AGREE WHETHER A CLAIM CONSTITUTES AN AGENT CLAIM, EACH PARTY SHALL PRESENT THE
CLAIM TO ITS OWN LIABILITY INSURANCE CARRIER, AND A COPY OF THE INITIAL CLAIM
DOCUMENTATION SHALL BE DELIVERED TO THE OTHER PARTY.
18.6
FORCE MAJEURE.
IF ANY CASUALTY OR ACT OF GOD OR ACT OF
TERRORISM PREVENTS OR SUBSTANTIALLY INHIBITS THE CONDUCT OF BUSINESS IN THE
ORDINARY COURSE AT ANY STORE, SUCH STORE AND THE MERCHANDISE LOCATED AT SUCH
STORE SHALL, IN AGENT'S DISCRETION, BE ELIMINATED FROM THE TRANSFER TO TWEC OR
THE SALE AND CONSIDERED TO BE DELETED FROM THIS AGREEMENT AS OF THE DATE OF SUCH
EVENT, AND AGENT AND MERCHANT SHALL HAVE NO FURTHER RIGHTS OR OBLIGATIONS
HEREUNDER WITH RESPECT THERETO;