AND DATA FILES, INTER-STORE TRANSFER LOGS, MARKDOWN SCHEDULES,
INVOICES, STYLE RUNS AND ALL OTHER DOCUMENTS RELATIVE TO THE PRICE, MIX AND
QUANTITIES OF INVENTORY LOCATED AT THE STORES.
(B)
AGENT INSPECTION.
PRIOR TO THE CLOSING DATE, MERCHANT SHALL HAVE PROVIDED
AGENT REASONABLE ACCESS TO THE STORES, THE WAREHOUSE AND THE INVENTORY ON THE
DATE IMMEDIATELY PRECEDING THE INVENTORY DATE.
(C)
NO BREACH OR DEFAULT.
ALL REPRESENTATIONS AND WARRANTIES OF MERCHANT
HEREUNDER SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AND NO EVENT OF
DEFAULT BY MERCHANT
29
SHALL HAVE OCCURRED AT AND AS OF THE DATE, UNLESS SUCH BREACH OR EVENT OF
DEFAULT WOULD NOT HAVE A MATERIAL ADVERSE EFFECT ON THE TRANSACTION.
SECTION 18.
INSURANCE; RISK OF LOSS.
18.1
MERCHANT'S LIABILITY INSURANCE.
AS OF THE CLOSING DATE, TWEC
SHALL PROVIDE (AND MERCHANT SHALL HAVE NO OBLIGATION TO PROVIDE) LIABILITY
INSURANCE POLICIES INCLUDING, BUT NOT LIMITED TO, PRODUCTS LIABILITY,
COMPREHENSIVE PUBLIC LIABILITY, AUTO LIABILITY AND UMBRELLA LIABILITY INSURANCE,
COVERING INJURIES TO PERSONS AND PROPERTY IN, OR IN CONNECTION WITH, THE
OPERATION OF THE STORES OR WAREHOUSE, AND SHALL CAUSE AGENT AND MERCHANT TO BE
NAMED AN ADDITIONAL NAMED INSURED WITH RESPECT TO ALL SUCH POLICIES.
18.2
MERCHANT'S PROPERTY CASUALTY INSURANCE.
MERCHANT WILL PROVIDE
UNTIL THE END OF THE SALE, FIRE, FLOOD, THEFT AND EXTENDED COVERAGE CASUALTY
INSURANCE COVERING THE UNSOLD ASSETS (OTHER THAN ASSETS CONVEYED TO TWEC) IN A
TOTAL AMOUNT EQUAL TO NO LESS THAN THE APPRAISED VALUE THEROF.
FROM AND AFTER
THE CLOSING DATE UNTIL THE END OF THE SALE, ALL SUCH POLICIES WILL NAME AGENT AS
LOSS PAYEE.
IN THE EVENT OF A LOSS TO THE ASSETS ON OR AFTER THE DATE OF THIS
AGREEMENT, THE PROCEEDS OF SUCH INSURANCE ATTRIBUTABLE TO THE ASSETS PLUS ANY
SELF INSURANCE AMOUNTS AND THE AMOUNT OF ANY DEDUCTIBLE (WHICH AMOUNTS SHALL BE
PAID BY MERCHANT), SHALL CONSTITUTE SALE PROCEEDS HEREUNDER.
IN THE EVENT OF
SUCH A LOSS AGENT SHALL HAVE THE SOLE RIGHT TO ADJUST THE LOSS WITH THE
INSURER.
WITHIN TWO (2) DAYS AFTER THE CLOSING DATE, MERCHANT SHALL DELIVER TO
AGENT CERTIFICATES EVIDENCING SUCH INSURANCE SETTING FORTH THE DURATION THEREOF
AND NAMING THE AGENT AS LOSS PAYEE, IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO AGENT.
ALL SUCH POLICIES SHALL REQUIRE AT LEAST THIRTY (30)
DAYS PRIOR NOTICE TO THE AGENT OF CANCELLATION, NON-RENEWAL OR MATERIAL CHANGE.
MERCHANT SHALL NOT MAKE ANY CHANGE IN THE AMOUNT OF ANY DEDUCTIBLES OR SELF
INSURANCE AMOUNTS PRIOR TO THE END OF THE SALE FOR ALL OF THE PROPERTIES WITHOUT
AGENT'S PRIOR WRITTEN CONSENT.
18.3
AGENT'S INSURANCE.
AGENT SHALL MAINTAIN AT AGENT'S COST AND
EXPENSE, UNTIL THE END OF THE MARKETING PERIOD FOR ALL OF THE PROPERTIES, IN
SUCH AMOUNTS AS IT CURRENTLY HAS IN EFFECT, COMPREHENSIVE PUBLIC LIABILITY AND
AUTOMOBILE LIABILITY INSURANCE POLICIES COVERING INJURIES TO PERSONS AND
PROPERTY IN OR IN CONNECTION WITH AGENT'S AGENCY AT THE STORES, AND SHALL CAUSE
MERCHANT TO BE NAMED AN ADDITIONAL INSURED WITH RESPECT TO SUCH POLICIES.
EXHIBIT 17.3 ATTACHED HERETO CONTAINS A