IN COUNTERPARTS; FACSIMILE SIGNATURES.
THIS
AGREEMENT MAY BE EXECUTED IN TWO (2) OR MORE COUNTERPARTS, EACH OF WHICH SHALL
BE DEEMED AN ORIGINAL AND ALL OF WHICH TOGETHER SHALL CONSTITUTE BUT ONE
AGREEMENT.
THIS AGREEMENT MAY BE EXECUTED BY FACSIMILE, AND EACH SUCH FACSIMILE
SIGNATURE SHALL BE TREATED AS AN ORIGINAL SIGNATURE FOR ALL PURPOSES.
21.8
SECTION HEADINGS.
THE HEADINGS OF SECTIONS OF THIS AGREEMENT
ARE INSERTED FOR CONVENIENCE ONLY AND SHALL NOT BE CONSIDERED FOR THE PURPOSE OF
DETERMINING THE MEANING OR LEGAL EFFECT OF ANY PROVISIONS HEREOF.
21.9
SURVIVAL.
ALL REPRESENTATIONS AND WARRANTIES MADE BY THE
PARTIES HERETO SHALL BE CONTINUING, SHALL BE CONSIDERED TO HAVE BEEN RELIED UPON
BY THE PARTIES AND SHALL SURVIVE THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT FOR A PERIOD NOT TO EXCEED SEVEN (7) MONTHS FOLLOWING THE CLOSING DATE
AT WHICH POINT SUCH REPRESENTATIONS AND WARRANTIES SHALL HAVE NO FURTHER FORCE
AND EFFECT.
21.10
THIRD PARTY BENEFICIARIES.
THIS AGREEMENT IS SOLELY FOR THE BENEFIT
OF THE PARTIES HERETO, AND NOTHING IN THIS AGREEMENT, WHETHER EXPRESS OR
IMPLIED, IS INTENDED TO CONFER ANY RIGHTS OR REMEDIES ON ANY PERSON OR ENTITY
OTHER THAN MERCHANT, AGENT, AND AGENT.
21.11
SECURITY INTEREST.
AS OF THE CLOSING DATE, MERCHANT SHALL GRANT,
PURSUANT TO THE ORDER, AGENT A FIRST PRIORITY SECURITY INTEREST IN THE ASSETS TO
SECURE MERCHANT'S OBLIGATIONS HEREUNDER.
21.12
FURTHER ASSURANCES; POWER OF ATTORNEY.
MERCHANT HEREBY AGREES TO
USE ALL REASONABLE EFFORTS AND TO PROCEED WITH DUE DILIGENCE TO CAUSE THE
CONDITIONS TO THE OBLIGATIONS HEREIN SET FORTH TO BE SATISFIED.
MERCHANT HEREBY
AGREES TO EXECUTE AND DELIVER ANY AND ALL FURTHER AGREEMENTS, DOCUMENTS OR
INSTRUMENTS REASONABLY NECESSARY TO EFFECTUATE THIS AGREEMENT.
IMMEDIATELY UPON
THE FILING OF ANY MOTION OR REQUEST TO DISMISS MERCHANT'S CHAPTER 11 CASE OR ANY
SUBSEQUENT CASE OR ANY REQUEST FOR CONFIRMATION OF A PLAN OF REORGANIZATION OR
LIQUIDATION (A) MERCHANT SHALL PROVIDE NOTICE OF THE HEARING THEREON TO AGENT
AND (B) MERCHANT SHALL BE DEEMED TO HAVE GRANTED TO AGENT A POWER OF ATTORNEY TO
TAKE ALL ACTIONS AND SIGN ALL DOCUMENTS ON MERCHANT'S BEHALF THAT ARE NECESSARY
OR DESIRABLE TO PERFECT AGENT'S SECURITY INTEREST GRANTED HEREIN UNDER
APPLICABLE STATE LAW.
ALL POWERS CONFERRED UPON AGENT PURSUANT TO THE PRECEDING
SENTENCE, BEING COUPLED WITH AN INTEREST, SHALL BE IRREVOCABLE UNTIL THE
TERMINATION OF THE MARKETING PERIOD FOR ALL PROPERTIES.
21.13
JOINT AND SEVERAL LIABILITY OF PARTNERS .
THE UNDERSIGNED MEMBERS
OF THE AGENT, JOINTLY AND SEVERALLY, GUARANTEE THE PROMPT PAYMENT BY AND
PERFORMANCE OF THE OBLIGATIONS OF, THE AGENT SET FORTH IN THIS AGREEMENT.
21.14
AUTHORIZED REPRESENTATIVE OF PARTNERS.
ANTON CARACCIOLO IS HEREBY
DESIGNATED AS AN AUTHORIZED REPRESENTATIVE OF THE AGENT AND THE MERCHANT AND ITS
PERSONNEL ARE HEREBY AUTHORIZED TO RELY ON SUCH AUTHORIZED REPRESENTATIVE OR
SUCH OTHER INDIVIDUALS AS THE AUTHORIZED REPRESENTATIVE MAY INDICATE IN WRITING.
[Signature Page Follows]
36
IN WITNESS WHEREOF, Agent and Merchant hereby execute this Agreement by their
duly authorized representatives as of the day and year first written above.
WHEREHOUSE ENTERTAINMENT,