RETAINED EMPLOYEES.
ATTACHED HERETO AS EXHIBIT 14.3 IS A DESCRIPTION OF
MERCHANT'S BASE PAYROLL, RELATED PAYROLL TAXES, WORKER'S COMPENSATION AND
EMPLOYEE BENEFITS, WHICH MERCHANT REPRESENTS IS TRUE AND ACCURATE AS OF THE DATE
HEREOF.
14.4
EMPLOYEE RETENTION BONUSES.
IN AGENT'S SOLE DISCRETION, AGENT
AT ITS SOLE COST MAY PAY RETENTION BONUSES ("RETENTION BONUSES") TO RETAINED
EMPLOYEES WHO DO NOT VOLUNTARILY LEAVE EMPLOYMENT AND ARE NOT TERMINATED "FOR
CAUSE."
SUCH RETENTION BONUSES SHALL BE ADVANCED BY AGENT TO MERCHANT PRIOR TO
THE DATE PAYABLE AND SHALL BE PROCESSED THROUGH MERCHANT'S PAYROLL SYSTEM.
14.5
MERCHANT'S EMPLOYEES AT TWEC STORES.
ON THE CLOSING DATE,
MERCHANT SHALL TERMINATE THOSE EMPLOYEES ("TWEC STORE EMPLOYEES") EMPLOYED AT
THE TWEC STORES AND WAREHOUSE.
TWEC, IN ITS SOLE AND COMPLETE DISCRETION, SHALL
OFFER EMPLOYMENT TO THE TWEC STORE EMPLOYEES ON TERMS AND CONDITIONS
SUBSTANTIALLY SIMILAR TO THOSE THAT EXISTED AS OF THE CLOSING DATE.
SECTION 15.
REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS.
15.1
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF
MERCHANT.
MERCHANT HEREBY REPRESENTS, WARRANTS, COVENANTS AND AGREES IN FAVOR
OF AGENT, UNLESS OTHERWISE SPECIFIED IN THIS SECTION 15, AS OF THE DATE OF THIS
AGREEMENT AND AS OF THE CLOSING DATE, AS FOLLOWS:
(A)
GOOD STANDING.
MERCHANT (I) IS A CORPORATION DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF ITS ORGANIZATION;
(II) HAS ALL REQUISITE POWER AND AUTHORITY TO OWN, LEASE AND OPERATE ITS ASSETS
AND PROPERTIES AND TO CARRY ON ITS BUSINESS AS PRESENTLY CONDUCTED; AND (III) IS
AND UNTIL THE END OF THE MARKETING PERIOD WITH RESPECT TO ALL PROPERTIES WILL
CONTINUE TO BE, DULY AUTHORIZED AND QUALIFIED TO DO BUSINESS AND IN GOOD
STANDING IN EACH JURISDICTION WHERE THE NATURE OF ITS BUSINESS OR PROPERTIES
REQUIRES SUCH QUALIFICATION, INCLUDING ALL JURISDICTIONS IN WHICH THE STORES ARE
LOCATED.
(B)
MOTION.
MERCHANT SHALL USE ITS REASONABLE COMMERCIAL EFFORTS TO OBTAIN THE
ENTRY OF THE ORDER (AS DEFINED BELOW) AND THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
(C)
DUE AUTHORIZATION; BINDING AGREEMENT.
SUBJECT TO ENTRY OF THE ORDER, THE
MERCHANT HAS THE RIGHT, POWER AND AUTHORITY TO EXECUTE AND DELIVER THIS
AGREEMENT AND EACH OTHER DOCUMENT AND AGREEMENT CONTEMPLATED HEREBY
(COLLECTIVELY, TOGETHER WITH THIS AGREEMENT, THE "AGENCY DOCUMENTS") AND TO
PERFORM FULLY ITS OBLIGATIONS THEREUNDER.
SUBJECT TO ENTRY OF THE ORDER AND
COMPLIANCE (IF REQUIRED) WITH THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT
OF
23
1976, as amended, Merchant has taken all necessary actions required to authorize
the execution, delivery and performance of the Agency Documents, and no further
consent or approval is required for Merchant to enter into and deliver the
Agency Documents, to perform its obligations thereunder, and to consummate the
Sale.
Each of the Agency Documents has been duly executed and delivered by
Merchant and constitutes the legal, valid and binding obligation of Merchant
enforceable in accordance with its terms.
Except for the Order, no court order
or decree of any federal, state or local governmental authority or regulatory
body is in effect that would prevent or impair, or is