DAY CURE PERIOD AFTER RECEIPT BY AGENT OF
NOTICE OF SUCH FAILURE TO REIMBURSE OR ADVANCE, PROVIDED THAT THE BASIS FOR
NON-PAYMENT IS NOT SUBJECT TO A BONA FIDE DISPUTE, IN ADDITION TO ALL OF ITS
OTHER RIGHTS AT LAW AND EQUITY, MERCHANT SHALL BE ENTITLED TO REVOKE AGENT'S
RIGHT TO USE, TO OCCUPY AND TO MARKET AND ATTEMPT TO SELL MERCHANT'S RIGHT,
TITLE AND INTEREST IN AND TO SUCH LEASES AND MAY REJECT THE LEASES.
SUCH
REVOCATION SHALL BE EFFECTIVE UPON AGENT'S RECEIPT OF WRITTEN NOTIFICATION FROM
MERCHANT (EACH, A "REVOCATION NOTICE").
8.2
LIMITATION ON MARKETING PERIOD COSTS.
DURING THE
MARKETING PERIOD, MERCHANT SHALL NOT MAKE ANY EXTRAORDINARY OR STRUCTURAL
MAINTENANCE REPAIRS WITHOUT THE PRIOR WRITTEN CONSENT OF AGENT, WHICH CONSENT
SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED.
16
8.3
OCCUPANCY EXPENSE LETTER OF CREDIT.
WITHIN TWO (2)
BUSINESS DAYS FROM THE ENTRY OF THE ORDER, AGENT WILL PROVIDE MERCHANT AN
IRREVOCABLE STANDBY LETTER OF CREDIT IN FORM AND SUBSTANCE SATISFACTORY TO
MERCHANT IN THE FACE AMOUNT OF ONE AND A HALF MONTHS OF OCCUPANCY EXPENSES FOR
LEASES AND UPON WHICH MERCHANT MAY DRAW UPON FOR ANY UNDISPUTED OCCUPANCY
EXPENSES NOT TIMELY PAID BY AGENT.
THE LETTER OF CREDIT WILL ALLOW FOR PARTIAL
DRAWS.
UPON TERMINATION OF THE MARKETING PERIOD FOR THE LEASES, AND PROVIDED
THAT AGENT HAS PAID ALL AMOUNTS DUE UNDER THIS AGREEMENT WITH RESPECT TO THE
LEASES, MERCHANT SHALL COOPERATE WITH AGENT TO TERMINATE THE LETTER OF CREDIT
DESCRIBED IN THIS SECTION 8.3.
SECTION 9.
INVENTORY TAKING AND VALUATION.
9.1
INVENTORY TAKING
(A)
INVENTORY TAKING.
MERCHANT AND AGENT SHALL CAUSE TO BE TAKEN A COST VALUE
PHYSICAL INVENTORY OF THE MERCHANDISE (THE "INVENTORY TAKING") AT THE STORES AND
THE WAREHOUSE, COMMENCING ON THE DAY THAT THE ORDER IS ENTERED.
THE INVENTORY
TAKING SHALL BE COMPLETED PRIOR TO THE CLOSING DATE.
THE DATE OF THE INVENTORY
TAKING AT EACH STORE AND THE WAREHOUSE SHALL BE THE "INVENTORY DATE" FOR SUCH
STORE OR THE WAREHOUSE (AS THE CASE MAY BE).
(B)
COST AND PROCEDURES.
PRIOR TO THE INVENTORY TAKING, MERCHANT AND AGENT
SHALL JOINTLY EMPLOY A MUTUALLY ACCEPTABLE INVENTORY TAKING SERVICE TO CONDUCT
THE INVENTORY TAKING AND MUTUALLY AGREE ON THE WRITTEN DIRECTIONS TO BE GIVEN TO
SUCH SERVICE REGARDING THE CONDUCT OF THE INVENTORY TAKING.
THE AGENT AND
MERCHANT SHALL EACH BE RESPONSIBLE FOR 50% OF THE COSTS AND FEES OF THE
INVENTORY TAKING SERVICE.
EXCEPT AS PROVIDED IN THE IMMEDIATELY PRECEDING
SENTENCE, MERCHANT AND AGENT SHALL BEAR THEIR RESPECTIVE COSTS AND EXPENSES
RELATIVE TO THE INVENTORY TAKING.
MERCHANT AND AGENT SHALL EACH HAVE
REPRESENTATIVES PRESENT DURING THE INVENTORY TAKING, AND SHALL EACH HAVE THE
RIGHT TO REVIEW AND VERIFY THE LISTING AND TABULATION OF THE INVENTORY TAKING
SERVICE.
MERCHANT AGREES THAT DURING THE CONDUCT OF THE INVENTORY TAKING AT
EACH STORE SUCH STORE SHALL BE CLOSED TO THE PUBLIC AND NO SALES OR OTHER
TRANSACTIONS SHALL BE CONDUCTED.
THE PROCEDURES TO BE USED IN THE CONDUCT OF
THE INVENTORY TAKING AND ITS VERIFICATIONS ARE SET