ANY
PROCEEDS OF ALL OTHER ADDITIONAL MERCHANDISE (FOR THE AVOIDANCE OF DOUBT, THESE
AMOUNTS ARE ABOVE AND SEPARATE FROM THE GUARANTEED AMOUNT.
ANY EXPENSES
ASSOCIATED WITH THE PURCHASE OR SALE OF ADDITIONAL MERCHANDISE SHALL BE TREATED
AS EXPENSES PAID BY AGENT HEREUNDER.
AT THE REQUEST OF MERCHANT, AGENT SHALL
PROVIDE TO MERCHANT AND PERMIT MERCHANT'S INDEPENDENT ACCOUNTANTS TO REVIEW AND
VERIFY, AN ACCOUNTING OF ALL PURCHASES AND DISPOSITIONS OF ADDITIONAL
MERCHANDISE.
4.4
ADJUSTMENTS TO GUARANTEED AMOUNT.
THE PARTIES HERETO HAVE
AGREED UPON THE GUARANTEED AMOUNT BASED UPON THE ASSUMPTION THAT AS OF THE
CLOSING DATE, COST VALUE (DEFINED IN SECTION 9.1 HEREOF) OF THE MERCHANT'S
INVENTORY (THE "INVENTORY") PHYSICALLY LOCATED AT THE STORES OR THE WAREHOUSE OR
IN TRANSIT TO OR FROM THERE (OTHER THAN RETURNS TO VENDOR OF INVENTORY IN
TRANSIT) THAT IS SALABLE IN THE ORDINARY COURSE SHALL BE NO LESS THAN $60
MILLION.
IN THE EVENT THAT THE COST VALUE OF THE INVENTORY IS LESS THAN $60
MILLION, THEN THE GUARANTEED AMOUNT WILL BE REDUCED BY AN AMOUNT EQUAL TO 64% OF
THE DIFFERENCE BETWEEN THE COST VALUE AND $60 MILLION.
IN THE EVENT THAT THE
COST VALUE OF THE INVENTORY IS GREATER THAN $60 MILLION, THEN THE GUARANTEED
AMOUNT WILL BE INCREASED BY AN AMOUNT EQUAL TO 64% OF THE DIFFERENCE BETWEEN THE
COST VALUE AND $60 MILLION.
ANY ADJUSTMENT TO THE GUARANTEED AMOUNT SHALL BE
PAID IN THE MANNER DESCRIBED IN SECTION 4.2 HEREOF.
For purposes of calculating such adjustments, the Cost Value of the Inventory
will be calculated, pursuant to Section 9 hereof, based upon the final certified
report of the Inventory Taking Service less the amount of Gross Rings from the
completion of Inventory Taking to the Closing Date at each Store plus the amount
of Merchandise (valued in accordance with Section 9.3 of the Agreement) that is
delivered to a Store or the Warehouse subsequent to the Inventory Taking but
prior to the Closing Date, after verification and reconciliation by Merchant and
Agent.
6
SECTION 5.
SALE AND ASSIGNMENT OF PROPERTIES OR
ASSETS.
ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND THE ORDER,
ON THE CLOSING DATE, SUBJECT TO THE TRANSFERS CONTEMPLATED ON THE CLOSING DATE
TO TWEC AS SET FORTH IN SECTION 5.5 BELOW, AGENT SHALL PURCHASE FROM MERCHANT,
AND MERCHANT SHALL SELL, TRANSFER AND DELIVER TO AGENT PURSUANT TO SECTIONS 105,
363, 365 AND 1146(C) OF THE BANKRUPTCY CODE, THE EXCLUSIVE RIGHT, IN THE
EXERCISE OF ITS SOLE AND ABSOLUTE DISCRETION, TO MARKET AND ATTEMPT TO SELL ALL
OF MERCHANT'S RIGHT, TITLE AND INTEREST IN AND TO THE ASSETS, INCLUDING, WITHOUT
LIMITATION, THE LEASES, FREE AND CLEAR OF ALL LIENS OF ANY KIND WHATSOEVER.
AS
USED HEREIN, THE TERMS "PROPERTY" AND "PROPERTIES" SHALL MEAN, INDIVIDUALLY AND
COLLECTIVELY, THE PARCELS OF REAL PROPERTY IN WHICH MERCHANT HAS A LEASEHOLD
INTEREST PURSUANT TO THE LEASES ALONG WITH THE TENANT IMPROVEMENTS LOCATED
THEREON (TO THE EXTENT OWNED OR LEASED BY MERCHANT) AND THE RIGHTS OF MERCHANT
UNDER THE LEASE