PEACEFUL AND QUIET POSSESSION OF, EACH OF THE STORES, THE ASSETS
CURRENTLY LOCATED AT THE STORES AND THE UTILITIES AND OTHER SERVICES PROVIDED AT
THE STORES.
(L)
PHYSICAL PLANT.
TO THE BEST OF MERCHANT'S KNOWLEDGE AND BELIEF, MERCHANT
HAS MAINTAINED ALL CASH REGISTERS, HEATING SYSTEMS, AIR CONDITIONING SYSTEMS,
ELEVATORS, ESCALATORS, STORE ALARM SYSTEMS, AND ALL OTHER MECHANICAL DEVICES
USED IN THE ORDINARY COURSE OF OPERATION OF THE STORES.
(M)
REQUIRED MERCHANT PAYMENTS.
SINCE THE FILING DATE, MERCHANT HAS PAID AND
IS CURRENT IN THE PAYMENT OF (I) ALL POST-PETITION SELF-INSURED OR MERCHANT
FUNDED EMPLOYEE BENEFIT PROGRAMS FOR EMPLOYEES, INCLUDING HEALTH AND MEDICAL
BENEFITS, WORKER'S COMPENSATION AND INSURANCE AND ALL PROPER CLAIMS MADE OR TO
BE MADE IN ACCORDANCE WITH SUCH PROGRAMS, (II) ALL POST-PETITION CASUALTY,
LIABILITY AND OTHER INSURANCE PREMIUMS, (III) ALL POST-PETITION UTILITIES
PROVIDED TO THE STORES, AND (IV) ALL POST-PETITION APPLICABLE TAXES, WHICH ARE
NOT SUBJECT TO A CURRENT OR PENDING BONA FIDE DISPUTE.
(N)
INCREASED COSTS.
SINCE JULY 25, 2003 THROUGH THE CLOSING DATE, MERCHANT
HAS NOT AND SHALL NOT TAKE ANY ACTIONS OUTSIDE THE ORDINARY COURSE OF BUSINESS
THE RESULT OF WHICH IS TO MATERIALLY INCREASE THE COST OF OPERATING THE SALE,
INCLUDING, WITHOUT LIMITATION, INCREASING SALARIES OR OTHER AMOUNTS PAYABLE TO
EMPLOYEES
(O)
LABOR MATTERS.
AS OF THE CLOSING DATE, (I) MERCHANT IS NOT A PARTY TO ANY
COLLECTIVE BARGAINING AGREEMENTS WITH ITS EMPLOYEES, (II) NO LABOR UNIONS
REPRESENT MERCHANT'S EMPLOYEES AT THE STORES, AND (III) THERE ARE CURRENTLY NO
STRIKES, WORK STOPPAGES OR OTHER MATERIAL LABOR DISTURBANCES AFFECTING THE
STORES OR THE WAREHOUSE.
(P)
ADVERTISING.
AS OF THE DATE OF THIS AGREEMENT, MERCHANT IS CURRENT IN THE
PAYMENT OF ALL UNDISPUTED ADVERTISING LIABILITIES INCURRED SUBSEQUENT TO THE
FILING DATE.
MERCHANT AGREES THAT IN THE EVENT THAT AGENT RECEIVES NOTICE THAT
ANY SUCH LIABILITY IS OVERDUE OR UNPAID, OR AGENT IS UNABLE TO ADVERTISE THE
SALE WITH ANY NEWSPAPERS, MAGAZINES, RADIO OR TELEVISION STATIONS OR OTHER MEDIA
PROVIDERS WHICH TARGET OR SERVE THE MARKET AREAS OF THE STORES OR IS UNABLE TO
OBTAIN MERCHANT'S CONTRACT RATE WITH ANY SUCH PROVIDER AS A RESULT OF THE
MERCHANT'S FAILURE TO PAY ITS POSTPETITION UNDISPUTED OUTSTANDING BALANCES WITH
SUCH PROVIDERS, MERCHANT SHALL IMMEDIATELY PAY SUCH APPLICABLE BALANCES IN FULL.
(Q)
TITLE.
(I)
MERCHANT OWNS AND WILL OWN AT ALL TIMES UNTIL SOLD PURSUANT TO
THE TERMS OF THIS AGREEMENT, GOOD AND MARKETABLE TITLE TO ALL OF THE ASSETS AND
MERCHANT SHALL CONVEY THE ASSETS TO AGENT OR ITS DESIGNEE IN ACCORDANCE WITH THE
TERMS OF THIS AGREEMENT FREE AND CLEAR OF ALL LIENS, CLAIMS AND ENCUMBRANCES.
FROM THE DATE HEREOF, MERCHANT SHALL NOT CREATE, INCUR, ASSUME OR SUFFER TO
EXIST ANY SECURITY INTEREST, LIEN OR OTHER CHARGE OR
25
ENCUMBRANCE UPON OR WITH RESPECT TO ANY OF THE ASSETS OR THE SALE PROCEEDS.
(II)
AFTER ENTRY OF THE ORDER, THERE SHALL BE NO LIENS, CLAIMS, OR
ENCUMBRANCES RELATING TO BORROWED MONEY INDEBTEDNESS ON ANY ASSETS.
TO THE BEST
OF MERCHANT'S KNOWLEDGE AND BELIEF, THERE ARE NO PENDING