OF ANY EMPLOYEE BENEFIT, OF ANY TWEC STORE EMPLOYEE OTHER THAN IN
THE ORDINARY COURSE OF BUSINESS.
(W)
VACATION ACCRUAL.
MERCHANT'S EMPLOYEES AT THE STORES AND THE WAREHOUSE
HAVE ACCRUED VACATION IN THE ORDINARY COURSE OF BUSINESS AND AS OF THE CLOSING
DATE, THE AMOUNT OF ACCRUED VACATION PAY OF MERCHANT'S EMPLOYEES AT THE STORES
AND THE WAREHOUSE IS APPROXIMATELY $680,000.
15.2
REPRESENTATIONS, WARRANTIES AND COVENANTS OF AGENT.
AGENT
HEREBY REPRESENTS, WARRANTS AND COVENANTS IN FAVOR OF THE MERCHANT AS FOLLOWS:
(A)
GOOD STANDING.
EACH MEMBER OF AGENT (I) IS A CORPORATION OR LIMITED
LIABILITY COMPANY DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER
THE LAWS OF THE STATE OF ORGANIZATION; (II) HAS ALL REQUISITE POWER AND
AUTHORITY UNDER ITS CHARTER AND BYLAWS TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED HEREBY; AND (III) IS AND DURING THE SALE TERM 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.
(B)
DUE AUTHORIZATION.
AGENT HAS THE RIGHT, POWER AND AUTHORITY TO EXECUTE AND
DELIVER EACH OF THE AGENCY DOCUMENTS TO WHICH IT IS A PARTY AND TO PERFORM FULLY
ITS OBLIGATIONS THEREUNDER.
AGENT HAS TAKEN ALL NECESSARY ACTIONS REQUIRED
UNDER ITS OPERATING AGREEMENT TO AUTHORIZE THE EXECUTION, DELIVERY, AND
PERFORMANCE OF THE AGENCY DOCUMENTS.
EACH OF THE AGENCY DOCUMENTS HAS BEEN DULY
EXECUTED AND DELIVERED BY AGENT AND CONSTITUTES THE LEGAL, VALID AND BINDING
OBLIGATION OF AGENT ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
NO CONTRACT OR
OTHER AGREEMENT TO WHICH AGENT IS A PARTY OR BY WHICH AGENT IS OTHERWISE BOUND
WILL PREVENT OR IMPAIR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
(C)
LEGAL PROCEEDINGS.
NO ACTION, ARBITRATION, SUIT, NOTICE, OR LEGAL,
ADMINISTRATIVE OR OTHER PROCEEDING BEFORE ANY COURT OR GOVERNMENTAL BODY HAS
BEEN INSTITUTED BY OR AGAINST AGENT, OR HAS BEEN SETTLED OR RESOLVED, OR TO
AGENT'S KNOWLEDGE, HAS BEEN THREATENED AGAINST OR AFFECTS AGENT, WHICH QUESTIONS
THE VALIDITY OF THIS AGREEMENT OR ANY ACTION TAKEN OR TO BE TAKEN BY AGENT IN
CONNECTION WITH THIS AGREEMENT, OR WHICH IF ADVERSELY DETERMINED, WOULD HAVE A
MATERIAL ADVERSE EFFECT UPON AGENT'S ABILITY TO PERFORM ITS OBLIGATIONS UNDER
THIS AGREEMENT.
(D)
RELATIONSHIP WITH MERCHANT.
THE RELATIONSHIP BETWEEN MERCHANT AND AGENT IS
SOLELY THAT OF AGENT AND PRINCIPAL, NOT THAT OF JOINT VENTURERS OR PARTNERS.
(E)
REQUIRED NUMBER OF LEASE ASSUMPTIONS.
ON OR PRIOR TO THE DATE THAT IS SIX
(6) MONTHS FOLLOWING THE CLOSING DATE, NOT LESS THAN SEVENTY (70) OF THE LEASES
SHALL BE ASSUMED AND ASSIGNED TO LEASED PROPERTY DESIGNEES.
(F)
COMPLIANCE WITH LAW.
AGENT SHALL, AND CAUSE OF ALL OF ITS EMPLOYEES,
AGENTS AND CONSULTANTS TO, USE THE ASSETS, PERFORM THE SALE, AND OPERATE THE
TWEC STORES IN ACCORDANCE WITH THE TERMS OF ALL APPLICABLE LAW, THE ORDER, AND
ANY OTHER ORDER OF THE BANKRUPTCY COURT.
27
(G)
USE OF ASSETS LOCATED AT CENTRAL OFFICE.
AGENT AGREES TO PROVIDE MERCHANT
AND ITS EMPLOYEES AND AGENTS AND REPRESENTATIVES REASONABLE