IMMEDIATELY AVAILABLE FUNDS.
AT AGENT'S
REQUEST, MERCHANT SHALL COOPERATE WITH AGENT TO ESTABLISH MERCHANT
IDENTIFICATION NUMBERS UNDER AGENT'S NAME TO ENABLE AGENT TO PROCESS ALL CREDIT
CARD SALE PROCEEDS FOR AGENT'S ACCOUNT.
MERCHANT SHALL NOT BE RESPONSIBLE FOR
AND AGENT SHALL PAY AS AN EXPENSE HEREUNDER, ALL CREDIT CARD FEES, CHARGES, AND
CHARGEBACKS RELATED TO THE SALE, WHETHER RECEIVED DURING OR AFTER THE SALE TERM.
SECTION 12.
CONDUCT OF THE STORE CLOSING SALE.
12.1
RIGHTS OF AGENT.
FROM AND AFTER THE CLOSING DATE, AGENT SHALL
CONDUCT THE SALE IN THE NAME OF AND ON BEHALF OF MERCHANT IN A COMMERCIALLY
REASONABLE MANNER AND IN COMPLIANCE WITH (I) THE TERMS OF THIS AGREEMENT AND
(II) THE ORDER.
IN CONNECTION THEREWITH AND AS PROVIDED IN THE ORDER, AGENT
SHALL BE PERMITTED TO OPERATE THE STORES ON ANY PROMOTIONAL OR NON-PROMOTIONAL
BASIS AND TO CONDUCT THE STORE CLOSING SALE AS A "STORE CLOSING," "GOING OUT OF
BUSINESS" OR SIMILAR SALE THROUGHOUT THE SALE TERM.
EXCEPT AS IS NOT PERMITTED
BY THE ORDER, FROM AND AFTER THE CLOSING DATE, AGENT, IN THE EXERCISE OF ITS
SOLE DISCRETION, SHALL HAVE THE RIGHT:
(A)
TO ESTABLISH AND IMPLEMENT ADVERTISING, SIGNAGE, AND PROMOTION PROGRAMS
THAT AGENT DEEMS APPROPRIATE, INCLUDING ADVERTISING, SIGNAGE AND PROMOTION
PROGRAMS CONSISTENT WITH A "STORE CLOSING" OR "GOING OUT OF BUSINESS" THEME
(INCLUDING, WITHOUT LIMITATION, BY MEANS OF MEDIA ADVERTISING, BANNERS, A-FRAME,
AND SIMILAR INTERIOR AND EXTERIOR SIGNS);
(B)
TO ESTABLISH MERCHANDISE PRICES AND STORE HOURS;
(C)
UNLESS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, TO USE WITHOUT
CHARGE ALL FF&E, MOTOR VEHICLES, ADVERTISING MATERIALS, BANK ACCOUNTS,
STORE-LEVEL CUSTOMER LISTS AND MAILING LISTS, COMPUTER HARDWARE AND SOFTWARE,
SUPPLIES, INTANGIBLE ASSETS (INCLUDING MERCHANT'S NAME, LOGO AND TAX
IDENTIFICATION NUMBERS), STORE KEYS, CASE KEYS, SECURITY CODES, AND SAFE AND
LOCK COMBINATIONS REQUIRED TO GAIN ACCESS TO AND OPERATE THE STORES, AND ANY
OTHER ASSETS OF MERCHANT LOCATED AT THE STORES (WHETHER OWNED, LEASED, OR
LICENSED);
20
(D)
TO TRANSFER MERCHANDISE BETWEEN STORES AND/OR BETWEEN THE STORES AND THE
WAREHOUSE, PROVIDED, HOWEVER THAT NO TRANSFER OF MERCHANDISE FROM THE WAREHOUSE
SHALL OCCUR PRIOR TO THE DATE OF THE WAREHOUSE INVENTORY TAKING; AND
(E)
TO THE EXTENT PROVIDED IN SECTION 7.2 OF THE AGREEMENT, TO USE (I)
MERCHANT'S CENTRAL OFFICE FACILITIES, POS SYSTEMS, CENTRAL AND ADMINISTRATIVE
SERVICES AND PERSONNEL TO PROCESS PAYROLL, PERFORM MIS SERVICES, SALES AUDIT AND
CASH RECONCILIATION, AND PROVIDE OTHER CENTRAL OFFICE SERVICES, NECESSARY FOR
THE SALE, AND (II) ONE OFFICE LOCATED AT MERCHANT'S CENTRAL OFFICE FACILITY.
12.2
SALES AT TWEC STORES.
NOTHING CONTAINED HEREIN SHALL PROHIBIT
TWEC FROM OPERATING THE TWEC STORES AS A GOING CONCERN FROM AND AFTER THE
CLOSING DATE.
AT ANY TIME PRIOR TO THE EXPIRATION OF THE LEASED PROPERTY
TERMINATION DATE WITH RESPECT TO ANY LEASE COVERING A TWEC STORE, TWEC MAY
DIRECT AGENT TO COMMENCE A STORE CLOSING SALE AT SUCH TWEC STORE AND THE
PROVISIONS OF THE ORDER AND THIS AGREEMENT RELATING TO THE STORE CLOSING SALES
GENERALLY SHALL APPLY TO SUCH STORE CLOSING SALE.
12.3
TERMS