EXHIBIT 10(f)
AGENCY AGREEMENT
This Agency Agreement (the "Agreement") is made as of this __th day of
January, 2002, by and between The Ozer Group LLC, with a principal place of
business at 00 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000-0000 (the "Agent")
and XXXXXXXX STORES, INC., a debtor and debtor in possession, with a principal
place of business at 0000 Xxxxxxx Xxxx, Xxxxxxx, XX 00000 (the "Merchant").
RECITALS
WHEREAS, Merchant is a debtor and debtor in possession under Chapter 11
of the United States Bankruptcy Code, in Chapter 11 Case No. 02-40957 (the (the
"Case") in the United States Bankruptcy Court for the Eastern District of
Michigan Southern Division (the "Bankruptcy Court");
WHEREAS, Merchant desires that Agents act as Merchant's exclusive agent
for the limited purpose of selling all of the Merchandise (as hereinafter
defined) located or to be located in five (5) of Merchant's retail store
locations as identified in Exhibit "1" attached hereto (each a "Store" and
collectively, the "Stores"), by conducting a "store closing", or similar theme
sales (the "Sale") at the Stores, subject to the terms and conditions set forth
herein;
WHEREAS, Agent is willing to serve as Merchant's exclusive agent to
conduct the Sale in accordance with the terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Agent and Merchant hereby agree as
follows:
Section 1.
1.1 Defined Terms. The terms set forth below are defined in the
Sections referenced of this Agreement:
Defined Term Section Reference
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Additional Goods Section 5.4
Additional Recovery Amount Section 8.9
Adjustment Amount Section 3.3(a)
Agency Accounts Section 3.3(d)
Agency Documents Section 11.1(b)
Agent Preamble
Agent Claim Section 12.5
Agent Indemnified Parties Section 13.1
Agent's Fee Section 3.1(b)
Agent's Security Interest Section 16.13
Agreement Preamble
Approval Order Section 10(b)
Augmented Goods Section 8.9
Benefits Cap Section 4.1(c)
Central Service Expenses Section 4.1
Defective Merchandise Section 5.2(b)
Event of Default Section 14
Estimated Guaranteed Amount Section 3.3(a)
Excluded Benefits Section 4.1
Expenses Section 4.1
Expense L/C Section 4.2(a)
Final Inventory Report Section 3.3(a)
Final Reconciliation Section 3.4
FF&E Section 15
FF&E Election Section 15
Guaranty Percentage Section 3.1(a)
Guaranteed Amount Section 3.1(a)
Guaranty L/C Section 3.3(b)
Gross Rings Section 6.3
Indemnified Parties Section 13.1
Initial Guaranty Payment Section 3.3(a)
Inventory Completion Date Section 5.1
Inventory Date Section 5.1
Inventory Taking Section 5.1
Inventory Taking Instructions Section 5.1
Inventory Taking Service Section 5.1
Merchandise Section 5.2(a)
Merchant Preamble
Occupancy Expenses Section 4.1
Proceeds Section 7.1
Recovery Amount Section 3.1(b)
Remaining Merchandise Section 3.2
Retail Price Section 5.3
Retained Employee Section 9.1
Retention Bonus Section 9.4
Sale Recitals
Sale Commencement Date Section 6.1
Sale Guidelines Section 8.1
Sale Term Section 6.1
Sale Termination Date Section 6.1
Sales Taxes Section 8.3
Sharing Threshold Section 3.1(b)
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Store(s) Recitals
Third Party Section 4.1
WARN Act Section 9.1
1.2 Exhibits. The Exhibits and Schedules annexed to this Agreement, as
listed below, are an integral part of this Agreement:
Exhibit Section Reference Description
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Exhibit 1 Recitals List of Stores
Exhibit 3.3(b) Section 3.1(c) Form of Guaranty L/C
Exhibit 4.1(a) Section 4.1(a) Occupancy Expense Schedule
Exhibit 4.2(b) Section 4.2(b) Form of Expense L/C
Exhibit 5.1 Section 5.1 Inventory Taking Instructions
Exhibit 5.4 Section 5.4 Additional Goods
Exhibit 5.5 Section 5.5 Removed Goods
Exhibit 8.1 Section 8.1 Sale Guidelines
Exhibit 10 Section 10(b) Form of Approval Order Exhibit 11.1(i)
Section 11.1(i) Guaranty Percentage Adjustment Schedule
Exhibit 12.4 Section 12.4 Agent Insurance Policies
1.3 Currency. Unless otherwise specified, all references to monetary
amounts refer to United States dollars.
Section 2. Appointment of Agent. Merchant hereby appoints Agent, and Agent
hereby agrees to serve, as Merchant's exclusive agent for the limited purpose of
conducting the Sale in accordance with the terms and conditions of this
Agreement. Merchant's obligations hereunder are expressly subject to the
issuance of the Approval Order.
Section 3. Guaranteed Amount and Other Payments
3.1 Payments to Merchant and Agent.
(a) As a guaranty of Agent's performance hereunder, Agent guarantees
that Merchant shall receive the sum of forty-one and two-tenths of one percent
(41.2%) (the "Guaranty Percentage") of the aggregate Retail Price of the
Merchandise included in the Sale (the "Guaranteed Amount").
(b) To the extent that Proceeds exceed the sum of (x) the Guaranteed
Amount, (y) Expenses of the Sale and (z) two percent (2%) of the aggregate
Retail Price of the Merchandise (the "Agent's Fee") (the sum of (x), (y) and
(z), the "Sharing Threshold"), then all remaining Proceeds of the Sale above the
Sharing Threshold shall be shared fifty percent (50%)
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to Merchant and fifty percent (50%) to Agent. All amounts, if any, to be
received by Merchant from Agent in excess of the Sharing Threshold shall be
referred to as the "Recovery Amount". Agent shall pay to Merchant the Guaranteed
Amount and the Recovery Amount, if any, in the manner and at the times specified
in Section 3.3 below. The Guaranteed Amount and the Recovery Amount will be
calculated based upon the aggregate Retail Price of the Merchandise as
determined by (A) the final certified report of the Inventory Taking Service
after verification and reconciliation thereof by Agent and Merchant, and (B) the
aggregate amount of Gross Rings (as adjusted for shrinkage per this Agreement),
if applicable.
3.2 Payments to Agent. Agent shall receive as its compensation for
services rendered to Merchant, all remaining Proceeds of the Sale after payment
of the Guaranteed Amount, the Recovery Amount, if any, and all Expenses. All
unsold Merchandise remaining, if any, in the Stores at the Sale Termination Date
("Remaining Merchandise") shall become the property of Agent, free and clear of
all liens, claims and encumbrances; provided, however, that Agent shall use its
reasonable best efforts to sell all of the Merchandise during the Sale;
provided, further, any proceeds received by Agent from the disposition of such
Remaining Merchandise shall constitute Proceeds hereunder.
3.3 Time of Payments and Control of Proceeds
(a) On the first business day following issuance of the Approval Order,
Agent shall pay Merchant (or its designee) eighty percent (80%) of the estimated
Guaranteed Amount (the "Initial Guaranty Payment"), calculated based upon the
estimated aggregate Retail Price of the Merchandise to be included in the Sale
(the "Estimated Guaranteed Amount") by wire transfer to an account as shall
designated by Merchant. The unpaid portion of the Guaranteed Amount, if any, or
of the Estimated Guaranteed Amount shall be paid by Agent to Merchant on the
earlier of (i) the date thirty (30) days after the Sale Commencement Date (in
which case payment shall be of the balance of the Estimated Guaranteed Amount)
and (ii) the first business day following the issuance of the final audited
report of the aggregate Retail Price of the Merchandise by the Inventory Taking
Service, after verification thereof by Agent and Merchant (the "Final Inventory
Report"), and Agent's failure to pay such balance shall entitle Merchant to draw
upon the Guaranty L/C to the extent of such balance; provided, however, that the
Inventory Taking shall be reconciled within seven (7) days after its completion
(and the Agent and Merchant shall use their reasonable best efforts to
accomplish such reconciliation within such seven (7) day period). In the event
that the Final Inventory Report is issued after payment by Agent of unpaid
portion of the Estimated Guaranteed Amount in accordance with (i) hereof, the
Agent or Merchant, as the case may be, shall, within two (2) business days after
the Final Inventory Report has been issued, pay to the Merchant or Agent, as the
case may be, the amount (the "Adjustment Amount") by which the actual Guaranteed
Amount exceeds or is less than the Estimated Guaranteed Amount actually paid as
set forth above. In the event there is any dispute with respect to the
reconciliation of the aggregate Retail Price of the Merchandise following the
Inventory Taking, then any such dispute shall be resolved in the manner and at
the times set forth in Section 3.4(b) hereof.
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(b) To secure payment of the balance of any unpaid portion of the
Guaranteed Amount, the Recovery Amount, and any other amounts due from Agent to
Merchant hereunder, Agent shall deliver to Lenders an irrevocable and
unconditional standby letter of credit, naming the Lenders as beneficiary, in
the original face amount equal to the unpaid portion of the Estimated Guaranteed
Amount as provided for in Section 3.3(a) below, substantially in the form of
Exhibit 3.3(b) attached hereto (the "Guaranty L/C"). The Guaranty L/C shall be
delivered to Lenders no later than one (1) business day following the Sale
Commencement Date, shall be issued by a bank selected by Agent and reasonably
acceptable to Merchant and the Lenders, and shall contain terms, provisions and
conditions mutually acceptable to Merchant, the Lenders, and Agent. The Guaranty
L/C shall expire no earlier than sixty (60) days after the Sale Termination
Date. Unless the parties shall have mutually agreed that they have completed the
final reconciliation under this Agreement, then, at least thirty (30) days prior
to the initial or any subsequent expiry date, the Lenders shall receive an
amendment to the Guaranty L/C solely extending (or further extending, as the
case may be) the expiry date by at least sixty (60) days. If the Lenders fail to
receive such amendment to the Guaranty L/C no later than thirty (30) days before
the expiry date, then all amounts hereunder shall become immediately due and
payable and the Lenders shall be permitted to draw under the Guaranty L/C in
payment of amounts owed and the Lenders shall hold the balance of the amount
drawn under the Guaranty L/C as security for amounts that may become due and
payable to Merchant hereunder. In the event that Agent, after receipt of five
(5) days notice (which notice shall not be required if Agent or any member of
Agent shall be a debtor under title 11, United States Code), fails to pay the
Guaranteed Amount, or portion thereof, or other obligations hereunder when due,
the Lenders may draw on the on the Guaranty L/C in an amount equal to the
unpaid, past due, amount of the Guaranteed Amount or other obligations
hereunder. Merchant, the Lenders, and Agent agree that after payment of the
unpaid portion of the Guaranteed Amount (whether the Estimated Guaranteed Amount
or the Guaranteed Amount calculated pursuant to the Final Inventory Report)
pursuant to Section 3.3 below, the face amount of the Guaranty L/C shall be
reduced in an amount(s) to be agreed upon by Merchant, the Lenders, and Agent.
(c) If and to the extent that Agent over-funds any amounts due
hereunder, then Merchant and the Lenders agree to promptly reimburse such
undisputed over payment amounts to Agent.
(d) Control of Proceeds. (i) Within ten (10) business days after the
Sale Commencement Date, Agent shall establish its own accounts, dedicated solely
for the deposit of the Proceeds and the disbursement of amounts payable to Agent
hereunder (the "Agency Accounts") and Merchant shall promptly upon Agent's
request execute and deliver all necessary documents to open and maintain the
Agency Accounts. Agent shall exercise sole signatory authority and control with
respect to the Agency Accounts; provided however, upon request, Agent shall
deliver to Merchant copies of all bank statements and other information relating
to such accounts. Merchant shall not be responsible for and Agent shall pay as
an Expense hereunder, all bank fee and charges, including wire transfer charges,
related to the Agency
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Accounts, whether received during or after the Sale Term. Upon Agent's
designation of the Agency Accounts, all Proceeds of the Sale (including credit
card proceeds) shall be deposited into the Agency Accounts.
(ii) During the period between the Sale Commencement Date and the date
Agent establishes the Agency Accounts, all Proceeds of the Sale (including
credit card proceeds), shall be collected by Agent and deposited on a daily
basis into Merchant's existing accounts designated for the Stores, and are
designated solely for the deposit of Proceeds of the Sale (including credit card
proceeds), and the disbursement of amounts payable by Agent hereunder (the
"Designated Merchant Accounts"). Commencing on the first business day following
the payment of the Initial Guaranty Payment and the posting of the Guaranty L/C
and the Expense L/C, and on each business day thereafter (or as soon thereafter
as is practicable), Merchant shall promptly pay to Agent by wire funds transfer
all collected funds constituting Proceeds deposited in such accounts (but not
any other funds, including, without limitation, any proceeds of Merchant's
inventory sold prior to the Sale Commencement Date). During this interim period,
Agent shall control the Proceeds of the Sale, and Fleet Retail Finance Inc., on
behalf of itself and as agent for Merchant's secured lenders (collectively, the
"Lenders") shall not take any action with respect to such Proceeds deposited
into the Designated Merchant Accounts, which shall inure solely for the benefit
of Agent, subject only to Agent's payment obligations hereunder.
(e) Agent shall be permitted to satisfy a portion of its payment
obligations under this Section 3.3 hereunder by offsetting undisputed Proceeds
held by Merchant against such payment obligations; provided however, nothing
contained in this Section 3.3(e) shall be deemed to amend, modify or otherwise
affect the timing of Agent's obligations to pay the Guaranteed Amount or the
estimated balance of the Guaranteed Amount pursuant to Section 3.3(a).
3.4 Final Reconciliation. (a) Within thirty (30) days after the Sale
Termination Date, Agent and Merchant, in consultation with the Lenders, shall
jointly prepare a final reconciliation of the Sale including, without
limitation, a summary of Proceeds, taxes, Expenses, and any other accountings
required hereunder (the "Final Reconciliation"). Within five (5) days of
completion of the Final Reconciliation, any undisputed and unpaid Expenses shall
be paid from Proceeds or, if there are insufficient Proceeds deposited by Agent
with Merchant, by Agent. In the absence of an order of the Bankruptcy Court, no
such disputed amount(s) shall be paid until the dispute has been resolved by
agreement of the parties or as determined in the manner prescribed in Section
3.4(b) hereof. During the Sale Term, and until all of Agent's obligations under
this Agreement have been satisfied, Merchant and Agent shall have reasonable
access to Merchant's and Agent's records with respect to Proceeds, taxes and
Expenses to review and audit such records. Merchant and Agent hereby agree to
submit to the jurisdiction of the Bankruptcy Court for such determination.
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(b) In the event that there is any dispute with respect to the Final
Reconciliation, such dispute shall be promptly (and in no event later than the
third business day following the request by either Merchant or Agent) submitted
to the Bankruptcy Court for a determination.
Section 4. Expenses of the Sale.
4.1 Expenses. Agent shall be unconditionally responsible for all
Expenses incurred in conducting the Sale during the Sale Term, which expenses
may be funded and paid from the Proceeds of the Sale, to the extent available
and in accordance with Section 4.2 below. No later than two (2) business days
after the Sale Commencement Date, Agent shall furnish to Merchant an Expense
budget for the Sale Term, which budget shall be subject to Merchant's reasonable
approval. As used herein, "Expenses" shall mean all Store operating expenses of
the Sale which arise during the Sale Term at the Stores, limited to the
following (unless otherwise specified herein):
(a) Occupancy Expenses, on a per Store, per diem basis in an
aggregate amount equal to the per diem amounts set forth on
Exhibit 4.1(a) annexed hereto;
(b) Payroll for all Store-level Retained Employees used in
conducting the Sale for the actual days worked (or in the case
of hourly employees, the hours worked) in connection with the
Sale;
(c) Any amounts payable or accrued by Company for benefits for
Retained Employees (including, but not limited to, FICA,
unemployment taxes, workers' compensation and health care
insurance benefits, pension and 401-K benefits, but excluding
Excluded Benefits, for Retained Employees used in the Sale, in
an amount equal to 21% of base payroll for each Retained
Employee ("Benefits Cap");
(d) Actual costs of Agent's on-site supervision, supervisor travel
and supervisor bonuses;
(e) In-Store signs and banners which are produced for the Sale;
(f) Promotional costs including, without limitation, advertising,
and direct mail;
(g) The costs and expenses of obtaining additional supplies as may
be required by Agent to conduct the Sale;
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(h) Telephone, postage/overnight or delivery/courier charges,
water, heating electricity and other utility charges;
(i) Credit card and bank card fees (including processing fees),
chargebacks and discounts, and bad check write-offs and fees;
(j) Costs of moving, transferring or consolidating merchandise
between Stores;
(k) A pro rata share of Merchant's casualty, property, general
liability and workers' compensation insurance premiums
attributable to the Stores;
(l) Trash removal and ordinary course third party cleanings;
(m) Store security and building alarm services, to the extent not
included as an Occupancy Expense;
(n) Fifty percent (50%) of cost of the physical inventory taking
(Agent's portion) by the Inventory Taking Service and 50% of
the actual payroll and related costs for the Retained
Employees who work at any Store during the Inventory Taking at
such Store;
(o) Agent's actual cost of capital and letter of credit fees;
(p) Armored car fees;
(q) Central Service Expenses in an amount equal to $10,000 per
Store, per week during the Sale Term;
(r) Retention Bonuses for Retained Employees as provided for in
Section 9.4 hereof; and
(s) Subject to Merchant's prior consent, which consent shall not
be unreasonably withheld, such additional expenses that Agent
determines to be reasonably necessary and/or prudent for the
conduct of the Sale.
"Expenses" shall not include: (i) Central Service Expenses, except as
provided for in Section 4.1(q) hereof; (ii) Excluded Benefits; (iii) any rent or
other occupancy expenses other than Occupancy Expenses in accordance with
Section 4.1(a) hereof; and (i) any costs, expenses or liabilities arising during
the Sale Term, other than the Expenses listed above, all of which shall be paid
by Merchant promptly when due during the Sale Term.
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As used herein, the following terms have the following respective
meanings:
"Central Services Expenses" means costs and expenses for Merchant's
central administrative services necessary for the Sale, including, but not
limited to, MIS services, inventory processing and handling and data processing
and reporting to the extent such services are normally provided by Merchant, in
house.
"Excluded Benefits" means vacation days or vacation pay, sick days or
sick leave, maternity leave or other leaves of absence, termination or severance
pay, ERISA coverage and similar contributions (other then pension and 401(k)
contributions), that accrued prior to or after the Sale Commencement Date, and
benefits in excess of the Benefits Cap percentage limitation provided in Section
4.1(c) above.
"Occupancy Expenses" means rent (including, base rent and any portion
of percentage rent specifically allocable to the period of the Sale Term on an
annualized basis), CAM (including, but not limited to, snow removal, sprinkler
expense and landscaping), real estate and use taxes, HVAC, utilities, telephone
charges (including base telephone, leased line charges and data circuit
charges), personal property leases (including, point of sale equipment),
personal property taxes, equipment repair and maintenance (including cash
register maintenance), systems repair and maintenance (including POS systems,
store servers, signature pads, routers), building maintenance, building
insurance relating to the Stores (exclusive of any deductible, which shall be
paid by Merchant) and Merchant's liability and casualty insurance (exclusive of
any deductible, which shall be paid by the Merchant) and security and
housekeeping costs.
"Third party" means, with reference to any Expenses to be paid to a
"third party", a party that is not affiliated with or related to Merchant.
(a) 4.2 Payment of Expenses; Security. All Expenses incurred during
each week of the Sale (i.e. Sunday through Saturday) shall be paid by Agent to
or on behalf of Merchant, or offset from Proceeds held by Merchant, immediately
following the weekly Sale reconciliation by Merchant and Agent pursuant to
Section 8.7 below, based upon invoices and other documentation reasonably
satisfactory to Agent. To secure Agent's obligations to pay Expenses, Agent
shall deliver to Merchant an irrevocable and unconditional standby letter of
credit (substantially in the form of Exhibit 4.2(b)) ("Expense L/C") in an
original face amount equal to three (3) weeks' estimated Expenses), naming the
Lenders as beneficiary. The Expense L/C shall be delivered to The Lenders no
later than one (1) business day after the Sale Commencement Date, and shall be
issued by a U.S. national bank selected by Agent and reasonably acceptable to
the Merchant and the Lenders.
(b) In the event that Agent fails to pay any Expense(s) when due, or
within three (3) business days after Merchant notifies Agent that any Expense(s)
is/are unpaid and past due, or in the event the Expense L/C will expire within 5
business days and certain Expenses are
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unpaid, the Lenders shall be entitled to draw on the Expense L/C to fund such
unpaid amount. The Expense L/C shall expire not earlier than the date that is
sixty (60) days after the Sale Termination Date.
Section 5. Inventory Valuation; Merchandise.
5.1 Inventory Taking. Commencing on the Sale Commencement Date,
Merchant and Agent shall cause to be taken a SKU and retail physical inventory
of the Merchandise located in the Stores (the "Inventory Taking"), which
Inventory Taking shall be completed in all of the Stores no later than five (5)
days after the Sale Commencement Date (the "Inventory Completion Date", and the
date of the Inventory Taking at each Store being the "Inventory Date" for each
such Store). Merchant and Agent shall jointly employ RGIS or another mutually
acceptable independent inventory taking service (the "Inventory Taking Service")
to conduct the Inventory Taking. The Inventory Taking shall be conducted in
accordance with the procedures and instructions attached hereto as Exhibit 5.1
(the "Inventory Taking Instructions"). As an Expense, Agent shall be responsible
for 50% of the fees and expenses of the Inventory Taking Service. The balance of
such fees and expenses shall be paid by Merchant. Except as provided Section
4.1(n) and the immediately preceding sentence, Merchant and Agent shall each
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 in each of the Stores, the applicable Stores
shall be closed to the public and no sales or other transactions shall be
conducted. Agent shall provide Merchant with a budget concerning the cost of the
Inventory Taking prior to the Sale Commencement Date.
5.2 Merchandise Subject to this Agreement. (a) For purposes of this
Agreement, including, without limitation, the calculation of the Guaranteed
Amount and the Recovery Amount, if any, "Merchandise" shall mean (i) all
finished goods inventory that is owned by Merchant located in the Stores on the
Sale Commencement Date (including, but not limited to, (A) Defective
Merchandise, (B) Merchandise subject to Gross Rings, and (ii) Additional Goods,
if any. Notwithstanding the foregoing, "Merchandise" shall not include: (1)
goods which belong to sublessees, licensees or concessionaires of Merchant,
unless Merchant, Agent and the respective sublessess, licensees or
concessionaires otherwise agree; (2) goods held by Merchant on memo, on
consignment, or as bailee; (3) customer owned goods that have been places in
Merchant's care for purposes of repair or storage, (4) goods and products in the
salons operated by Merchant in the Stores, (5) Removed Goods, if Merchant
exercises its Removed Goods Option pursuant to Section 5.5 hereof , (6)
Defective Goods for which Merchant and Agent cannot agree upon the appropriate
Retail Price, (7) special order merchandise ordered by customers prior to the
Sale Commencement Date, and (8) furnishings, trade fixtures furniture and
equipment and improvements to real property which are located in the Stores.
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(b) As used herein, the following terms shall have the respective
meanings set forth below:
"Defective Merchandise" means any item of Merchandise identified and
agreed upon by Merchant and Agent during the Inventory Taking as defective or
otherwise not saleable in the ordinary course because it is worn, scratched,
broken, faded, torn, mismatched, tailored or affected by other similar defenses
rendering it not first quality. Sample Merchandise and Merchandise on display
shall not per se be deemed to be Defective Merchandise.
5.3 Valuation. (a) For purposes of this Agreement, "Retail Price" shall
mean with respect to each item of Merchandise, other than Defective Merchandise,
the lowest price offered to the public since January 15, 2002 as determined by
the lowest ticketed price, SKU price, or Merchant's PLU file for such period.
With respect to Defective Merchandise, "Retail Price shall mean such price as
Merchant and Agent shall mutually agree. The Retail Price of any item of
Merchandise shall be determined as provided for by this Agreement and in
accordance with the Inventory Taking Instructions set forth in Exhibit 5.1.
(b) In the event of a conflict between this Agreement and the Inventory
Taking Instructions, the terms of this Agreement shall control. The Retail Price
of any item of Merchandise shall exclude all Sales Taxes, and Merchant
represents that the ticketed prices of items of Merchandise at the Stores do not
and shall not include any Sales Taxes. If an item of Merchandise has more than
one ticketed price, or if multiple items of the same SKU are marked at different
prices, the lowest ticketed price on any such item shall prevail for such item
or for all such items within the same SKU, as the case may be, unless it is
reasonably determined by Merchant and Agent that the lowest ticketed price was
mismarked, in which case the higher ticketed price shall control; provided
however, in determining the lowest ticketed, SKU price with respect to any item
of Merchandise at the Stores, the ticketed price, or SKU price to be used shall
be based upon the lowest ticketed or SKU price for such item at the Stores in
the geographic Midwest Region or Florida Region, as the case may be, in which
the Store containing such items of Merchandise is located (the "Region(s)"). No
adjustment to Retail Price shall be made with respect to different SKU or PLU
prices for items located in different Regions.
5.4 Additional Goods From the date hereof through 5:00 p.m. (EST) on
the date that is fourteen (14) days after the Sale Commencement Date, (the
"Additional Goods Option Deadline"), Merchant shall have the absolute right, in
its discretion, to elect to include additional goods, in categories and amounts
not to exceed the categories and amounts set forth on Exhibit 5.4 annexed hereto
(the "Additional Goods"), in the Sale (the "("Additional Goods Option").
Merchant shall exercise the Additional Goods Option by delivering written notice
to Agent on or before the Additional Goods Option Deadline notifying Agent of
Merchant's intent to exercise the Additional Goods Option and identifying, by
category and aggregate Retail Price, the Additional Goods that are the subject
of such exercise (the "Additional Goods Election Notice"). In the event that
Merchant exercises such option prior to Additional Goods Option Deadline, the
Additional Goods shall constitute Merchandise to be included in the Sale and the
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Guaranteed Amount shall be adjusted accordingly, as part of the weekly sale
reconciliation pursuant to Section 8.7 hereof, during the week following the
receipt of such Additional Goods at the Stores, provided however, in the event
that any of the Additional Goods are received at the Stores on a date that is
more than twenty-one (21) days after the Sale Commencement Date (the "Late
Arriving Additional Goods"), then for purposes of determining the portion of the
Guaranteed Amount attributable to such Late Arriving Additional Goods, the
"Retail Price" of such Late Arriving Additional Goods shall be multiplied by the
inverse of the prevailing discount in place on the date that such Late Arriving
Additional Goods are received in the Stores. Within two business days of Agent's
receipt of the Additional Goods Election Notice, Agent shall designate in
writing and with specificity, what Stores the Additional Goods are to be
delivered; provided however, such designation shall be limited to directing the
Additional Goods be delivered to Stores within the same region as such
Additional Goods are presently located. Merchant shall be responsible for all
costs and expenses associated with transferring such Additional Goods to the
Stores, as designated by Agent. If Agent fails to timely designate where the
Additional Goods are to be delivered in accordance with this Section 5.4,
Merchant shall deliver such Additional Goods to the Stores where Merchant, in
the exercise of its business judgment, determines is appropriate. Other than the
costs and expenses associated with the transfer of such Additional Goods to the
Stores (which shall be borne by Merchant), Agent shall pay all Expenses incurred
during the Sale Term in connection with the Sale of the Additional Goods.
5.5 Option to Remove Goods. From the date hereof through 5:00 p.m. on
the date that is thirty (30) days after the Sale Commencement Date, except with
respect to department 007 cosmetics (the "Cosmetics"), in which case, from the
date hereof through the Sale Commencement Date (the "Removed Goods Option
Deadline"), Merchant shall have the absolute right, in its discretion, to elect
to remove items of Merchandise, in categories and amounts not to exceed the
categories and amounts set forth on Exhibit 5.5 annexed hereto (the "Removed
Goods", from the Sale (the "Removed Goods Option"). Merchant shall exercise the
Removed Goods Option by delivering written notice to Agent on or before the
Removed Goods Option Deadline notifying Agent of Merchant's intent to exercise
the Removed Goods Option and identifying, by category and aggregate Retail
Price, the Removed Goods that are the subject of such exercise (the "Removed
Goods Election Notice"). The Removed Goods Election Notice shall state whether
Merchant will remove the Removed Goods from the Stores or whether Merchant has
elected to have such Removed Goods treated as Merchant Consignment Goods
pursuant to Section 5.6 hereof. In the event that Merchant elects to remove the
Removed Goods from the Stores, then, as soon as practicable after delivery of
the Removed Goods Election Notice, Merchant shall remove such Removed Goods from
the Stores, at Merchant's sole cost and expense. As and to the extent Merchant
delivers the Removed Goods Election Notice after the Sale Commencement Date,
Merchant and Agent shall jointly prepare a reconciliation of the remaining items
constituting Removed Goods located in the Stores that are the subject of the
Removed Goods Election Notice so as to calculate the appropriate adjustment to
the Guaranteed Amount required to account for removal thereof from the Sale.
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5.6 Excluded Goods. Merchant shall retain all rights and responsibility
for any goods not included as "Merchandise" hereunder. At Merchant's election,
to be exercised on or before the later of the Sale Commencement Date or the
expiration of the Removed Goods Option Deadline, Agent shall accept goods,
including Removed Goods (if Merchant so elects ), not included as "Merchandise"
hereunder for sale as "Merchant Consignment Goods" at prices established by the
Agent. The Agent shall retain thirty percent (30%) of the sale price for all
sales of Merchant Consignment Goods, and Merchant shall receive seventy percent
(70%) of the receipts in respect of such sales; provided however, Merchant shall
have the exclusive right to determine the sale prices for any Removed Goods that
Merchant has elected be treated as Merchant Consignment Goods; provided further
however, to the extent that Merchant elects to designate, all or a portion of
Cosmetics that constitute Removed Goods as Merchant Consignment Goods (the
"Cosmetics Consignment Goods"), then (a) such Cosmetic Consignment Goods shall
be sold by Agent at a discount of no greater than ten percent (10%) off the
original ticketed price of such Cosmetics Consignment Goods, and (b) unless
otherwise agreed by Merchant in writing, all unsold Cosmetics Consignment Goods
shall be removed from the Sale on the date that is thirty (30) days after the
Sale Commencement Date. Merchant shall receive its share of the receipts of
sales of Merchant Consignment Goods on a weekly basis, immediately following the
weekly Sale reconciliation by Merchant and Agent pursuant to Section 8.6 below.
If Merchant does not elect to have Agent sell Defective Merchandise or other
merchandise not included as Merchandise, then all such items will be removed by
Merchant from the Stores at its expense as soon as practicable after the Sale
Commencement Date. Except as expressly provided in this Section 5.6, Agent shall
have no cost, expense or responsibility in connection with any goods not
included in Merchandise.
5.7 Merchant's Right To Operate Salons and Alteration Departments.
During the Sale Term, Merchant shall have the right, in its sole discretion, to
continue to operate the salons and alteration departments currently being
operated by Merchant at the Stores; provided, however, Merchant shall provide
Agent with five (5) days written notice of its intention to cease operating a
salon or alteration department in each of the Stores. All proceeds generated
from the operation of the salons and the alterations departments shall be for
the sole benefit of Merchant, and all costs and expenses incurred in connection
with Merchant's operation of the salons and alteration departments shall be the
obligation of Merchant.
Section 6. Sale Term.
6.1 Term. Subject to the prior issuance of the Approval Order, the Sale
shall commence at the Stores on the first day after entry of the Approval Order
(the "Sale Commencement Date"). Subject to any restrictions that may exist by
virtue of applicable law or regulation (except as may otherwise be provided in
the Approval Order), the Agent shall complete the Sale at each Store, and shall
vacate each Store's premises in favor of Merchant or its representative or
assignee on or before April 28, 2002 (the "Sale Termination Date"). The period
from the Sale Commencement Date to the Sale Termination Date shall be referred
to herein as the "Sale Term." Subject to applicable law or regulation (except as
may otherwise be
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provided in the Approval Order), the Sale Termination Date may be (a) extended
by mutual written agreement of Agent and Merchant; or (b) accelerated by Agent,
in which case Agent shall provide Merchant with not less than seven (7) days
advance written notice of any such planned accelerated Sale Termination Date.
6.2 Vacating the Stores. Subject to the terms of Section 6.1 hereof,
Agent shall provide Merchant with not less than seven (7) days' advance written
notice of its intention to vacate any Store (as to each Store, the "Vacate
Date"). On the Vacate Date, Agent shall vacate in favor of Merchant or its
representatives or assignee, remove all Remaining Merchandise and leave the
Stores in "broom clean" condition (ordinary wear and tear excepted). Agent's
obligation to pay all Expenses, including Occupancy Expenses, for each Store
shall continue until the later of (a) the applicable Vacate Date for such Store
or (b) the fifteenth (15) day of the calendar month in which the Vacate Date for
such Store occurs to the extent that the Court does not approve under the
Approval Order Merchant's request to limit the Merchant's obligations to pay
rent under such Store leases on a per diem basis through the effective rejection
date only, then with respect to the leased Store locations; provided however, to
the extent applicable, during the period between the Vacate Date and the
fifteenth (15th) day of the calendar month during which the Vacate Date occurs,
Agent's obligation to pay Expenses shall be limited to payment of Occupancy
Expenses. All assets of Merchant used by Agent in the conduct of the Sale (e.g.
FF&E, supplies, etc.) shall be returned by Agent to Merchant or left at the
Stores' premises at the end of the Sale Term to the extent the same have not
been used in the conduct of the Sale or have not been otherwise disposed of
through no fault of Agent. Where reference is made in this Section 6 to vacating
the Stores, such shall mean vacating the Stores in favor of Merchant, its
representatives or assignee and shall not mean vacating possession or disclaimer
of lease in favor of the landlord or owner of the Store premises.
6.3 Gross Rings. In the event that the Sale commences prior to the
completion of the Inventory Taking at any Store, then for the period from the
Sale Commencement Date until the Inventory Date for such Store, Agent and
Merchant shall jointly keep (i) a strict count of gross register receipts less
applicable Sales Taxes ("Gross Rings"), and (ii) cash reports of sales within
such Stores. Register receipts shall show for each item sold the Retail Price
for such item and the markdown or discount, if any, specifically granted by
Agent in connection with such Sale. All such records and reports shall be made
available to Agent and Merchant during regular business hours upon reasonable
notice. Agent shall pay that portion of the Guaranteed Amount calculated on the
Gross Rings basis, to account for shrinkage, on the basis of 102% of sales of
Merchandise (without taking into account any point of sale discounts or point of
sale markdowns) during the Gross Rings period.
Section 7. Sale Proceeds.
7.1 Proceeds. For purposes of this Agreement, "Proceeds" shall mean the
aggregate of (a) the total amount (in dollars) of all sales of Merchandise made
under this Agreement, exclusive of Sales Taxes; and (b) all proceeds of
Merchant's insurance for loss or
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damage to Merchandise or loss of cash arising from events occurring during the
Sale Term; provided however, to the extent that such insurance proceeds exceeds
the sum of the portion of the Guaranteed Amount, Expenses incurred to date and
directly attributable to the Sale of such lost or damaged Merchandise, and
Agent's Fee attributable or that would have been attributable to such lost or
damaged Merchandise (the "Insurance Proceeds Threshold'), then the excess
insurance proceeds above the Insurance Proceeds Threshold shall be shared
equally between Merchant and Agent. Proceeds shall also include any and all
proceeds received by Agent from the disposition, in a commercially reasonable
manner, of Remaining Merchandise at the end of the Sale whether through salvage,
bulk sale or otherwise.
7.2 Credit Card Proceeds. To the extent available Agent shall use
Merchant's credit card facilities (including Merchant's credit card terminals
and processor(s), credit card processor coding, merchant identification
number(s) and existing bank accounts) for credit card sales; provided however
Agent shall not accept Merchant's proprietary credit card. Merchant shall
process credit card transactions, applying customary practices and procedures.
Merchant shall cooperate with Agent to down-load data from all credit card
terminals each day during the Sale Term and to effect settlement with Merchant's
credit card terminals each day during the Sale Term and to effect settlement
with Merchant's credit card transactions under Merchant's merchant
identification number(s). At Agent's request, Merchant shall cooperate with
Agent to establish merchant identification numbers under Agent's name to enable
Agent to process all credit card sales for Agent's account. Merchant shall
deposit the net settlement received from any credit card sales receipts into
Merchant's customary accounts. Merchant shall prepare a weekly reconciliation of
the amounts deposited to the designated account in respect of the sales of
Merchandise by credit plus Sales Taxes less credit card and bank card fees,
chargebacks and service charge adjustments, returns allowances and customer
credits. Merchant shall not be responsible for paying and Agent shall pay as an
Expense hereunder, all credit card fees charges, and chargebacks related to the
Sale, whether received during or after the Sale Term.
7.3 Xxxxx Cash. In addition to the Guaranteed Amount, Agent shall
reimburse Merchant on and as of the start of business on the Sale Commencement
Date for all cash in the Stores.
Section 8. Conduct of the Sale.
8.1 Rights of Agent. Subject to applicable federal, state, local and
provincial law and the terms of the applicable Store leases, mortgages, or other
occupancy agreements, and subject to Agent's satisfaction of any applicable
licensing or registration requirements, except as may otherwise be provided in
the Approval Order, Agent shall be permitted to conduct the Sale as a "store
closing," or similar theme sale in the Stores throughout the Sale Term in a
manner consistent with the Sale guidelines annexed hereto as Exhibit 8.1 (the
"Sale Guidelines"). In addition to any other rights granted to Agent hereunder,
in conducting the Sale, Agent, in the exercise of its sole discretion, shall
have the right:
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(a) to establish Sale prices and Stores hours which are consistent with
the terms of applicable leases, mortgages or other occupancy agreements, and
local laws or regulations, including, without limitation, Sunday closing laws;
(b) to use without charge during the Sale Term all FF&E, bank accounts
(subject to Section 3.3(d) (other than Agent's obligation to pay bank fees
pursuant to Section 4.1 hereof), Store-level customer lists and mailing lists,
computer hardware and software, existing supplies located at the Stores,
intangible assets (including Merchant's name, logo and tax identification
numbers), Stores keys, case keys, security codes, and safe and lock combinations
required to gain access to and operate the Stores, and any other assets of
Merchant located at the Stores (whether owned, leased, or licensed) consistent
with applicable terms of leases or licenses. Agent shall exercise due care and
return to the Merchant immediately at the end of the Sale all materials and
supplies except materials or supplies expended;
(c) to use Merchant's central office facilities, central administrative
services and personnel to process payroll, perform MIS and provide other central
office services necessary for the Sale to the extent that such services are
normally provided by Merchant in house, at no cost to Agent, subject tot Agent's
payment of Central Service Expenses in accordance with Section 4.1(q) hereof;
provided, however, that in the event Agent expressly requests Merchant to
provide services other than those normally provided to the Stores and relating
to the sale of merchandise by Merchant in the ordinary course of business and as
expressly contemplated by this Agreement, Agent shall be responsible to
reimburse Merchant for the actual incremental cost of such services incurred by
Merchant as an Expense of the Sale hereunder;
(d) to establish and implement advertising, signage (including interior
and exterior banners), and promotion programs consistent with a "store closing,"
or similar theme sale, and as otherwise provided in the Approval Order and the
Sale Guidelines (including, without limitation, by means of media advertising,
A-frame, and similar signage and interior and exterior signs and banners));
provided, however, that prior to the use and placement of any such advertising
and signage in connection with the Sale, the content of all such advertising and
signage shall be approved by Merchant, upon two (2) business days prior notice
of such advertising, which approval shall not be unreasonably withheld or
delayed, and which approval shall be deemed to be granted unless otherwise
stated by Merchant in writing prior to the expiration of such time period. A
copy of any proposed advertisement or signage shall be sent by telecopy to
Merchant, Attention: Ms. Kit Spoelstra, Fax No: 517/000-0000;
(e) to transfer Merchandise between Stores; and
(f) subject to Section 8.9 hereof, to the extent permitted by
applicable state or local laws or regulations, except as may be modified by the
Approval Order, Agent may supplement the Merchandise in the Stores with
Additional Goods of like kind, quality and mix;
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provided however, that the costs and expenses incurred in connection therewith
shall be at Agent's expense.
8.2 Terms of Sales to Customers, Law Compliance.
(a) Subject to Agent's compliance with applicable law, all sales of
Merchandise will be "final sales" and "as is" and all advertisements and sales
receipts will reflect the same. Agent shall clearly xxxx all Merchandise sold at
the Stores during the Sale Term so as to distinguish such Merchandise from the
Merchandise sold at Merchant's ongoing retail store locations. Agent shall not
warrant the Merchandise in any manner, but will, to the extent legally
permissible, pass on all manufacturers' warranties to customers. All sales will
be made only for cash, nationally recognized bank credit cards and, in Agent's
discretion, personal checks, provided, however, if Agent determines to accept
personal checks, Agent shall bear the risk of loss therefore; provided further
however, during the first fourteen (14) days of the Sale Term, Agent shall
accept gift certificates, gift cards, etc, as provided for in Section 8.2(b)
hereof.
(b) For the first fourteen (14) days of the Sale Term, Agent shall
accept Merchant's gift certificates, gift cards, Merchandise credits, and
Merchandise certificates issued by Merchant prior to the Sale Commencement Date.
Merchant shall reimburse Agent in cash for such amounts during the weekly sale
reconciliation provided for in Section 8.7 hereof.
(c) Except as may otherwise be provided in the Approval Order, Agent
shall comply with all applicable laws and regulations in its conduct of the
Sale, including laws and regulations governing the advertising of the Sale,
Merchandise pricing and employment. If Agent fails to perform its
responsibilities in accordance with this Section 8.2, Agent shall indemnify and
hold harmless Merchant from and against any and all costs including, but not
limited to, reasonable attorneys' fees, assessments, fines or penalties which
Merchant sustains or incurs as a result or consequence of the failure by Agent
to comply with applicable laws and regulations.
8.3 Sales Taxes. During the Sale Term, all sales, excise, gross
receipts and other taxes attributable to sales of Merchandise as indicated on
Merchant's point of sale equipment (other than taxes on income) payable to any
taxing authority having jurisdiction (collectively, "Sales Taxes") shall be
added to the sales price of Merchandise and collected by Agent, on Merchant's
behalf, and on deposit at Merchant's existing accounts, trust accounts or other
accounts, as designated by Merchant. Provided that Agent has collected all Sales
Taxes during the Sale and remitted the proceeds thereof to Merchant, Merchant
shall promptly pay all Sales Taxes and file all applicable reports and documents
required by the applicable taxing authorities. Merchant will be given access to
the computation of gross receipts for verification of all such Sales Tax
collections. Provided Agent performs its responsibilities in accordance with
this Section 8.3, Merchant shall indemnify and hold harmless Agent from and
against any and all costs, including, but not limited to, reasonable attorneys'
fees, assessments, fines or penalties which Agent sustains or incurs as a result
or consequence of the failure by Merchant to promptly
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pay such taxes to the proper taxing authorities and/or the failure by Merchant
to promptly file with such taxing authorities all reports and other documents
required, by applicable law, to be filed with or delivered to such taxing
authorities. If Agent fails to perform its responsibilities in accordance with
this Section 8.3, and provided Merchant complies with its obligations in
accordance with this Section 8.3, Agent shall indemnify and hold harmless
Merchant from and against any and all costs including, but not limited to,
reasonable attorneys' fees, assessments, fines or penalties which Merchant
sustains or incurs as a result or consequence of the failure by Agent to collect
Sales Taxes and/or, to the extent Agent is required hereunder to prepare reports
and other documents, the failure by Agent to promptly deliver any and all
reports and other documents required to enable Merchant to file any requisite
returns with such taxing authorities.
8.4 Supplies. Agent shall have the right to use all existing supplies
necessary to conduct the Sale (e.g., bags, twine, but not gift certificates,
rain checks, merchandise credits or the like, but specifically excluding boxes
and grograin ribbon) located at the Stores at no charge to Agent. In the event
that additional supplies are required in any of the Stores during the Sale, the
acquisition of such additional supplies shall be the responsibility of Agent as
an Expense; provided, however, that Merchant shall assist Agent in obtaining
supplies from Merchant's vendors at Merchant's cost.
8.5 Returns of Merchandise. Unless requested by Merchant, Agent shall
not accept returns of Merchandise sold by Merchant prior to the Sale
Commencement Date. In the event that Merchant requests that Agent accept returns
of Merchandise, such returned Merchandise shall be included in Merchandise and
valued at the Retail Price applicable to such item less the prevailing Sale
discount at the time of the return. The aggregate Retail Price of the
Merchandise shall be increased by the Retail Price of any returned Merchandise
included in Merchandise (determined in accordance with this Section 8.5), and
the Guaranteed Amount shall be adjusted accordingly. Merchant shall promptly
reimburse Agent in cash for any refunds Agent is required to issue to customers
in respect of any returned Merchandise. Returned Merchandise not included in
Merchandise shall be disposed of by Agent in accordance with instructions
received from Merchant or, in the absence of such instructions, returned to
Merchant at the end of the Sale Term. Any increases in the Guaranteed Amount or
reimbursements to Agent in connection with returned Merchandise shall be
accounted for on a weekly basis, in connection with the weekly reconciliation
process.
8.6 [INTENTIONALLY LEFT BLANK]
8.7 Sale Reconciliation. On each Wednesday during the Sale Term,
commencing on the second Wednesday after the Sale Commencement Date, Agent and
Merchant shall cooperate to reconcile Expenses, Gross Rings, and such other
Sale-related items as either party shall reasonably request, in each case for
the prior week or partial week (ie. Sunday through Saturday), all pursuant to
procedures agreed upon by Merchant and Agent. Within thirty (30) days after the
end of the Sale Term, Agent and Merchant shall complete a final
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reconciliation of the Sale, the written results of which shall be certified by
representations of each of Merchant and Agent as a final settlement of accounts
between Merchant and Agent.
8.8 Force Majeure. If any casualty, act of terrorism, or act of God
prevents or substantially inhibits the conduct of business in the ordinary
course at any Store, such Store and the Merchandise located at such Store shall,
in Agent's discretion, be eliminated from the Sale and considered to be deleted
from this Agreement as of the date of such event, and Agent and Merchant shall
have no further rights or obligations hereunder with respect thereto; provided,
however, that (i) subject to the terms of Section 7.1 above, the proceeds of any
insurance attributable to such Merchandise shall constitute Proceeds hereunder,
and (ii) the Guaranteed Amount shall be reduced to account for any Merchandise
eliminated from the Sale which is not the subject of insurance proceeds.
8.9 Augmentation. Subject to obtaining authorization in the Approval
Order, Agent may, at Agent's expense, supplement the Merchandise in the Stores
with augmented goods, of like kind and quality, as presently in the Stores (the
"Augmented Goods"); provided however Agent guarantees a minimum Additional
Recovery Amount ("Minimum Additional Recovery Amount") to Merchant in the amount
of $100,000, irrespective of whether Agent exercises its election to supplement
the Merchandise with Augmented Goods, which Minimum Additional Recovery Amount
shall be paid by Agent at the same time as the Initial Guaranty Payment is paid
to Merchant; provided further however, the aggregate retail price of the
Augmented Goods to be included in the Sale shall not exceed $7,000,000. In
consideration for the right to include the Augmented Goods in the Sale, Agent
shall pay to Merchant ten percent (10%) of the gross proceeds of the sale of the
Augmented Goods less sales taxes (the "Additional Recovery Amount"). Sales of
Augmented Goods shall be run through Merchant's cash register systems, provided
however, Agent shall xxxx the Augmented Goods using either a "dummy" SKU or
department number, so as to distinguish the sale of Augmented Goods from the
sale of Merchandise. The Merchant and Agent intend that the transactions
relating to the Augmented Goods are, and shall be construed as, a true
consignment from Agent to the Merchant in all respects and not a consignment for
security purposes. At all times and for all purposes the Augmented Goods and
their proceeds shall be the exclusive property of Agent, and, other than
Merchant's claim with respect to the Additional Recovery Amount, no other person
or entity shall have any claim against any of the Augmented Goods or their
proceeds. The Augmented Goods shall at all times remain subject to the exclusive
control of Agent. Merchant shall, at Agent's expense, insure the Augmented Goods
and, if required, promptly file any proofs of loss with regard to same with
Merchant's insurers. Subject to Section 3.3 hereof, any Additional Recovery
Amount shall be paid by Agent to Merchant weekly as part of the Sale
reconciliation provided for under Section 8.6 hereof.
Section 9. Employee Matters.
9.1 Merchant's Employees. Subject to the terms of any collective
bargaining agreement or employment contract, and with due regard to Merchant's
past practices, policies
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and procedures relating to the employment of its employees, Agent may use
Merchant's Store-level employees in the conduct of the Sale to the extent Agent,
in consultation with Merchant, deems expedient, and Agent consultation with
Merchant, may select and schedule the number and type of Merchant's employees
required for the Sale. Agent shall identify any such employees to be used in
connection with the Sale (each such employee, a "Retained Employee") prior to
the Sale Commencement Date. In consultation with Merchant, Agent shall identify
any employees who will not be used in connection with the Sale prior to the Sale
Commencement Date. Employees will be selected by seniority and status where
possible or where required by the terms of any collective bargaining agreement.
Agent acknowledges that the selection and scheduling of Retained Employees and
the decision to cease using Retained Employees in connection with the Sale shall
be made with due regard to, but Agent shall not be obligated to comply with,
Merchant's desire to minimize severance and termination costs to Merchant and to
the extent reasonably possible shall be made so as not to interrupt any
statutory working notice, provided that Agent's ability to terminate the Sale at
any Sale Store under the terms of this Agreement shall not be impaired thereby.
Retained Employees shall at all times remain employees of Merchant, and shall
not be considered or deemed to be employees of Agent. Merchant and Agent agree
that, except to the extent that wages, vacation pay and benefits of Retained
Employees constitute Expenses hereunder, nothing contained in this Agreement and
none of Agent's actions taken in respect of the Sale shall be deemed to
constitute an assumption by Agent of any of Merchant's obligations relating to
any of Merchant's employees including, without limitation, Excluded Benefits,
termination type claims and obligations, or any other amounts required to be
paid by statute or law; nor shall Agent become liable under any collective
bargaining or employment agreement or be deemed a joint or successor employer
with respect to such employees. Merchant shall not, without Agent's prior
written consent, raise the salary or wages or increase the benefits for, or pay
any bonuses or make any other extraordinary payments to, any of its employees in
anticipation of the Sale or prior to the Sale Termination Date. Merchant has not
terminated and shall not during the Sale Term terminate any employee benefits or
benefit programs. It is understood and agreed that Agent's on-site supervisors
shall not be employees of Merchant under any circumstances.
9.2 Termination of Employees. Agent may in its discretion stop using
any Retained Employee at any time during the Sale. In the event of Agent's
termination of the services of any Retained Employee, Agent will provide written
notice to Merchant at least seven (7) days prior thereto, except for a
termination of services "for cause" (such as dishonesty, fraud or breach of
employee duties), in which event no prior notice to Merchant shall be required,
provided Agent shall notify Merchant as soon as practicable after such
termination. Upon delivery to Merchant of a notice of termination of services of
a Retained Employee, then Agent's obligations with respect to such Retained
Employee terminate on the effective date of such notice of termination, as
provided for herein; provided however, although such Retained Employee will no
longer be used in connection with the Sale, Merchant shall have the
responsibility for terminating the employment of such Retained Employee or
alternatively, if Merchant' so elects, transferring such terminated Retained
Employee to one of the Remaining Stores. From and after the date of this
Agreement and until the Sale Termination Date, Merchant
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shall not transfer or dismiss employees of the Stores except "for cause" without
Agent's prior consent (which consent shall not be unreasonably withheld).
Notwithstanding any other provision hereof, Agent will indemnify Merchant with
respect to any claims by Retained Employees arising from Agent's treatment of
such Retained Employees. Agent acknowledges that Merchant will be providing WARN
Act notice of termination or lay-off to all or certain of its employees, but
shall do so in consultation with Agent.
9.3 Payroll Matters. During the Sale Term, Merchant shall process and
pay the base payroll and all related payroll taxes, worker's compensation,
employment and unemployment insurance, and benefits for all Retained Employees
in accordance with its usual and customary procedures. Any additional personnel
hired by Agent for the Sale shall not be deemed to be employees of Merchant, nor
shall Merchant be obligated to process the payroll therefor or offer benefits to
said additional personnel.
9.4 Employee Retention Bonuses. Agent shall pay, as an Expense,
retention bonuses ("Retention Bonuses") (which bonuses shall be inclusive of
payroll taxes but as to which no benefits shall be payable), up to a maximum of
10% of base payroll, to certain Retained Employees who do not voluntarily leave
employment and are not terminated "for cause". The amount of such Retention
Bonuses, which will be payable within thirty (30) days after the Sale
Termination Date, shall be in an amount to be determined by Agent, in its
discretion, and shall be payable within thirty (30) days after the Sale
Termination Date, and shall be processed through Merchant's payroll system.
Agent shall provide Merchant with a copy of Agent's Retention Bonus plan within
two (2) business days after the Sale Commencement Date. Agent shall not utilize
the Retention Bonus as a mechanism to incentivize Retained Employees to act
contrary to Merchant's best interests.
Section 10. Conditions Precedent. The willingness of Agent and Merchant to
enter into the transactions contemplated under this Agreement are directly
conditioned upon the satisfaction of the following conditions at the time or
during the time periods indicated, unless specifically waived in writing by the
applicable party:
(a) All representations and warranties of Merchant and Agent hereunder
shall be true and correct in all material respects and no Event of Default shall
have occurred at and as of the date hereof and as of the Sale Commencement Date.
(b) On or before February 1, 2002, the Court shall have entered an
order in substantially the form of Exhibit 10 attached hereto (the "Approval
Order"): (i) approving this Agreement in its entirety, (ii) authorizing the
conduct of the Sale pursuant to the terms of this Agreement, (A) notwithstanding
any state or local law or regulation otherwise governing or purporting to govern
the licensing and conduct of the Sale, (B) notwithstanding the provision in any
lease, mortgage, or other occupancy agreement that purport to limit, govern or
restrict the conduct of the Sale, and (C) without the necessity of obtaining any
third party consents, (iii) requiring that any liens granted by Merchant to its
lender or any other party shall not encumber
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the Merchandise or Proceeds, but shall instead attach only to the Guaranteed
Amount, Recovery Amount, and Merchant's entitlement to be reimbursed for
Expenses paid directly by Merchant, (iv) granting Agent, subject to Agent's
obligations to pay the Guaranteed Amount, the Recovery Amount and Expenses, a
valid, duly perfected first priority lien and security interest in the
Merchandise and any Proceeds to which Agent is entitled in accordance with the
terms of this Agreement; (v) authorizing Agent to supplement the Merchandise in
the Stores with Augmented Goods; (vi) which Approval Order shall not have been
vacated or stayed.
Section 11. Representations, Warranties and Covenants.
11.1 Merchant's Representations, Warranties and Covenants. Merchant
hereby represents, warrants and covenants in favor of Agent as follows:
(a) Merchant (i) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation; (ii)
has all requisite corporate 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 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, including all
jurisdictions in which the Stores are located, except, in each case, to the
extent that the failure to be in good standing or so qualified could not
reasonably be expected to have a material adverse effect on the ability of
Merchant to execute and deliver this Agreement and perform fully its obligations
hereunder.
(b) Subject to the issuance and entry of the Approval Order, 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 the issuance and entry of the Approval Order,
Merchant has taken all necessary actions required to authorize the execution,
delivery and performance of the Agency Documents, and no further consent or
approval on the part of Merchant is required for Merchant to enter into and
deliver the Agency Documents, to perform its obligations thereunder, and to
consummate the Sale. Subject to the issuance and entry of the Approval Order,
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. Subject to the issuance and entry of the Approval
Order, no court order or decree of any federal, state, local, or provincial
governmental authority or regulatory body is in effect that would prevent or
materially impair, or is required for the Merchant's consummation of, the
transactions contemplated by this Agreement, and no consent of any third party
which has not been obtained is required therefor, other than as shall be
obtained prior to the Sale Commencement Date, except for any such consent the
failure of which to be obtained could not reasonably be expected to have a
material adverse effect on the ability of Merchant to execute and deliver this
Agreement and perform fully its obligations hereunder. Other than for any
consent as shall be obtained prior to the Sale Commencement Date, and those
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contracts or agreements identified by Merchant to Agent on or prior to the Sale
Commencement Date, if any, no contract or other agreement to which the Merchant
is a party or by which the Merchant is otherwise bound will prevent or
materially impair the consummation of the Sale and the other transactions
contemplated by this Agreement.
(c) Merchant owns and will own at all times during the Sale Term, good
and marketable title to all of the Merchandise free and clear of all liens,
claims and encumbrances of any nature. Merchant shall not create, incur, assume
or suffer to exist any security interest, lien or other charge or encumbrance
upon or with respect to any of the Merchandise or the Proceeds, except for such
pre-existing liens and security interests as shall have been disclosed by
Merchant to Agent and identified in Exhibit 11.1(c) hereof.
(d) Except as previously disclosed to Agent, Merchant has not since
January 1, 2002, and shall not up to the Sale Commencement Date, marked up or
raised the price of any items of Merchandise, or removed or altered any tickets
or any indicia of clearance merchandise, except in the ordinary course of
business and except for the effects of the termination of promotional events;
provided however, Agent acknowledges that commencing on January 22, 2002,
Merchant took permanent markdowns on certain items of merchandise in the Stores,
and similar merchandise in the remaining stores, that were previously subject to
POS promotional activity.
(e) All Merchandise is in material compliance with all applicable
federal, state or local product safety laws, rules and standards. Merchant shall
provide Agent with its historic policies and practices, if any, regarding
product recalls prior to the Sale Commencement Date.
(f) Subject to entry of the Approval Order, Agent shall have the right
to the unencumbered use and occupancy of, and peaceful and quiet possession of,
each of the Stores, the assets currently located at the Stores to the extent
Merchant is entitled to use the same, and the services provided at the Stores to
the extent Merchant is entitled to such services. Merchant shall throughout the
Sale Term maintain in a manner consistent with its customary and historic
practices, at its sole expense (except as otherwise provided herein), all cash
registers, heating systems, air conditioning systems, elevators, escalators,
alarm systems, and all other mechanical devices used in the ordinary course of
operation of the Stores or, if applicable, use reasonable efforts to cause any
applicable landlord to comply with its obligations under applicable lease and
occupancy agreements with respect to any such matter.
(g) Since January 1, 2002, Merchant had paid and will continue to pay
throughout the Sale Term to the extent authorized by the Bankruptcy Court, all
self-insured or Merchant funded employee benefit programs for Store employees,
including health and medical benefits and insurance and all proper claims made
or to be made in accordance with such programs.
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(h) To the extent previously ordered inventory was delivered by the
respective vendors to Merchant, Merchant delivered the allocable portion of such
received inventory to the Stores in the normal course of business. However, on
January 17, 2002, Merchant ceased issuing new orders (both purchase orders and
automatic replenishment requests) for inventory to be delivered to the Stores
and as of on or about that date no further shipments of inventory were or will
be accepted at the Stores.
(i) The aggregate Retail Price of the Merchandise shall be no less than
$22,500,000 (the "Merchandise Threshold"); provided however, in the event
Merchant exercises its Removed Goods Option, then the aggregate Retail Price of
the Merchandise shall be reduced by an amount equal to the aggregate Retail
Price of the goods that were the subject of Merchant' Removed Goods Election
Notice (the "Adjusted Merchandise Threshold"). In the event that there is a
deviation from the forgoing thresholds, the Guaranteed Amount shall be adjusted
in accordance with Exhibit 11.1(i), as and where applicable. In lieu of the
foregoing adjustment to the Guaranteed Amount, Merchant may, at its election,
transfer into the Stores additional goods reasonably acceptable to Agent with
respect to mix, balance, quality, pricing and margin, at Merchant's expense, in
a commercially reasonable manner, to meet the minimum threshold (the
"Transferred Goods") which Transferred Goods shall be included as Merchandise;
provided however, within 24 hours of the completion of the Inventory Taking in
the Stores, Agent shall provide Merchant with written notice designating the
Store locations to which Merchant shall ship such Transferred Goods (the
"Transferred Goods Designation").
(j) Subject to Merchant's Removed Goods Option and Additional Goods
Option, since January 1, 2002 and through the Sale Commencement Date, Merchant
has not transferred and shall not transfer goods to or from the Stores, other
than in the ordinary course of business.
(k) The Additional Goods have been properly marked down (whether
through a permanent xxxx down or POS activity) in accordance with Merchant's
historical practices at this time of year and are priced (inclusive of any POS
discounts) in accordance with the manner in which such goods were priced in
Merchant's remaining stores since December 26, 2001.
11.2 Agent's Representations, Warranties and Covenants. Agent hereby
represents, warrants and covenants in favor of Merchant as follows:
(a) Agent: (i) is a corporation or limited liability company, as the
case may be, duly and validly existing and in good standing under the laws of
the State of its organization; (ii) has all requisite power and authority to
carry on its business as presently conducted and to consummate the transactions
contemplated hereby; and (iii) is and during the Sale Term will continue to be
duly authorized and qualified as a foreign company to do business and in good
standing in each jurisdiction where the nature of its business or properties
requires such qualification.
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(b) 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 to
authorize the execution, delivery, and performance of the Agency Documents, and
no further consent or approval is required on the part of Agent for Agent 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 the Agent and, constitutes the legal, valid and
binding obligation of Agent enforceable in accordance with its terms. No court
order or decree of any federal, provincial, state or local governmental
authority or regulatory body is in effect that would prevent or impair or is
required for Agent's consummation of the transactions contemplated by this
Agreement, and no consent of any third party which has not been obtained is
required therefor other than as provided herein. 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) 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) Except as may be otherwise provided in the Approval Order, the Sale
shall be conducted in compliance with all applicable federal, state, and local
laws, rules and regulations.
Section 12. Insurance.
12.1 Merchant's Liability Insurance. Merchant shall continue until the
Sale Termination Date, in such amounts as it currently has in effect, all of its
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 Merchant's
operation of the Stores, and shall cause Agent to be named an additional named
insured with respect to all such policies. Prior to the Sale Commencement Date,
Merchant shall deliver to Agent certificates evidencing such insurance setting
forth the duration thereof and naming Agent as an additional named insured, in
form reasonably satisfactory to Agent. All such policies shall require at least
thirty (30) days prior notice to Agent of cancellation, non-renewal or material
change. In the event of a claim under any such policies Merchant shall be
responsible for the payment of all deductibles, retentions or self-insured
amounts to the extent said claim arises from or relates to the alleged acts or
omissions of Merchant or its employees, agents (other than Agent's employees),
or independent contractors (other than Agent and independent contractors hired
by Agent in conjunction with the Sale).
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12.2 Merchant's Casualty Insurance. Merchant shall continue until the
Sale Termination Date, in such amounts as it currently has in effect, fire,
flood, theft and extended coverage casualty insurance covering the Merchandise
in a total amount equal to no less than the cost value thereof. In the event of
a loss to the Merchandise on or after the date of this Agreement, the proceeds
of such insurance attributable to the Merchandise (net of any deductible) shall
constitute Proceeds. Prior to the Sale Commencement Date, Merchant shall deliver
to Agent certificates evidencing such insurance setting forth the duration
thereof, in form and substance reasonably satisfactory to Agent. All such
policies shall require at least thirty (30) days prior notice to 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 Sale
Termination Date or the Extended Sale Termination Date, as the case may be,
without Agent's prior written consent.
12.3 Worker's Compensation Insurance. Merchant shall continue until the
Sale Termination Date, in such amounts as it currently has in effect, worker's
compensation insurance (including employer liability insurance) covering all
Retained Employees in compliance with all statutory requirements. Prior to the
Sale Commencement Date, Merchant shall deliver to Agent a certificate of its
insurance broker or carrier evidencing such insurance.
12.4 Agent's Insurance. Agent shall maintain at Agent's cost and
expense throughout the Sale Term, 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 12.4 attached hereto contains a
description of all such policies. Prior to the Sale Commencement Date, Agent
shall deliver to Merchant certificates evidencing such insurance policies,
setting forth the duration thereof and naming Merchant as an additional insured,
in form and substance reasonable satisfactory to Merchant. In the event of a
claim under such policies Agent shall be responsible for the payment of all
deductibles, retentions or self-insured amounts thereunder, to the extent said
claim arises from or relates to the alleged acts or omissions of Agent or
Agent's employees, agents or independent contractors).
12.5 Risk of Loss.
Without limiting any other provision of this Agreement, Merchant
acknowledges that Agent is conducting the Sale on behalf of Merchant solely in
the capacity of an agent, and that in such capacity (i) Agent shall not be
deemed to be in possession or control of the Stores or the assets located
therein or associated therewith, or of Merchant's employees located at the
Stores, and (ii) except as expressly provided in this Agreement, Agent does not
assume any of Merchant's obligations or liabilities with respect to any of the
foregoing. Agent shall not be deemed to be a successor employer. Merchant and
Agent agree that, subject to the terms of this Agreement, Merchant shall bear
all responsibility for liability claims of customers, employees and other
persons arising from events occurring at the Stores during and after the Sale
Term,
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except to the extent any such claim arises directly from the acts or omissions
of Agent, or its supervisors, agents, independent contractors, or employees
located at the Stores (an "Agent Claim"). In the event of any liability claim
other than an Agent Claim, Merchant shall administer such claim and shall
present such claim to Merchant's liability insurance carrier in accordance with
Merchant's policies and procedures existing immediately prior to the Sale
Commencement Date, and shall provide a copy of the initial documentation
relating to such claim to Agent at the address listed in this Agreement. To the
extent that Merchant and Agent agree that a claim constitutes an Agent Claim,
Agent shall administer such claim and shall present such claim to its liability
insurance carrier, and shall provide copies of the initial documentation
relating to such claim to Merchant. In the event that Merchant and Agent cannot
agree whether a claim constitutes an Agent Claim, each party shall present the
claim to its own liability insurance carrier, and a copy of the initial claim
documentation shall be delivered to the other party to the foregoing address.
Section 13. Indemnification.
13.1 Merchant Indemnification. Merchant shall indemnify and hold Agent
and its officers, directors, employees, agents and independent contractors
(collectively, "Agent Indemnified Parties") harmless from and against all
claims, demands, penalties, losses, liability or damage, including, without
limitation, reasonable attorneys' fees and expenses, asserted directly or
indirectly against Agent resulting from, or related to:
(a) Merchant's material breach of or failure to comply with any of its
agreements, covenants, representations or warranties contained in any Agency
Document;
(b) subject to Agent's performance and compliance with its obligations
pursuant to Sections 4.1(b) and 4.1(c) and Section 9 hereof, any failure of
Merchant to pay to its employees any wages, salaries or benefits due to such
employees during the Sale Term or other claims asserted against Agent by
Merchant's employees resulting from Merchant's (and not Agent's) treatment of
its employees;
(c) subject to Agent's compliance with its obligations under Section
8.3 hereof, any failure by Merchant to pay any Sales Taxes to the proper taxing
authorities or to properly file with any taxing authorities any reports or
documents required by applicable law to be filed in respect thereof;
(d) the gross negligence or willful misconduct of Merchant or any of
its officers, directors, employees, agents (other than Agent) or
representatives.
13.2 Agent Indemnification. Agent shall indemnify and hold Merchant and
its officers, directors, employees, agents and representatives harmless from and
against all claims, demands, penalties, losses, liability or damage, including,
without limitation, reasonable attorneys' fees and expenses, asserted directly
or indirectly against, Merchant resulting from, or
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related to (including acts or omissions of persons or entities affiliated with
or acting on behalf of the Agent):
(a) Agent's material breach of or failure to comply with any local,
state, or federal laws or regulations, or any of its agreements, covenants,
representations or warranties contained in any Agency Document;
(b) any harassment, discrimination or violation of any laws or
regulations or any other unlawful, tortious or otherwise actionable treatment of
any employees or agents of Merchant by Agent or any of its employees, agents,
independent contractors or other officers, directors or representatives of
Agent;
(c) any claims by any party engaged by Agent as an employee or
independent contractor arising out of such engagement;
(d) any Agent Claims; and
(e) the negligence or willful misconduct of Agent or any of its
officer, directors, employees, agents or representatives.
Section 14. Defaults. The following shall constitute "Events of Default"
hereunder:
(a) Merchant's or Agent's failure to perform any of their respective
material obligations hereunder, which failure shall continue uncured seven (7)
days after receipt of written notice thereof to the defaulting party; or
(b) Any representation or warranty made by Merchant or Agent proves
untrue in any material respect as of the date made or at any time and throughout
the Sale Term; or
(c) The Sale is terminated or materially interrupted or impaired at any
Store for any reason other than (i) an Event of Default by Agent, or (ii) any
other material breach or action by Agent not authorized hereunder.
In the event of an Event of Default, the non-defaulting party may, in
its discretion, elect to terminate this Agreement upon seven (7) business days'
written notice to the other party and pursue any and all rights and remedies and
damages resulting from such default hereunder.
Section 15. Fixtures. With respect to the FF&E owned by Merchant and
located at the Stores, other than the Toledo, Ohio Store (which Merchant will
dispose of in a separate transaction), at Merchant's sole option, exercisable by
Merchant in writing on an individual Store by Store basis within ten (10) days
after the Sale Commencement Date, Agent shall, at Merchant's election ("FF&E
Election"), sell the FF&E in any such Store; provided however, Merchant, with
the consent of the Lenders, shall have the right to designate certain
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FF&E located at any of the Stores that Merchant does not elect to have Agent
sell. In the event Merchant exercises the FF&E Election with respect to the FF&E
in any Store(s), Agent be entitled to receive a commission equal to twenty-five
percent (25%) of the net proceeds from the sale of such FF&E; provided however
Merchant shall be responsible for payment of expenses incurred in connection
with the disposition of the FF&E in accordance with a budget to be mutually
agreed upon between Merchant and Agent; provided further however, Merchant may
elect to receive, in lieu of proceeds net of expenses and Agent's commission, a
lump sum payment, on a per Store basis, in an amount to be agreed upon between
Merchant, in consultation with the Lenders, and Agent, in which case all costs
and expenses associated with the disposition thereof shall be borne by Agent. In
either event, as of the Sale Termination Date, Agent may abandon in place in a
neat and orderly manner any unsold FF&E at the Stores.
Section 16. Miscellaneous.
16.1 Notices. All notices and communications provided for pursuant to
this Agreement shall be in writing, and sent by hand, by facsimile, or a
recognized overnight delivery service, as follows:
If to the Merchant: XXXXXXXX STORES, INC.
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Tel: 517/000-0000
Fax: 517/000-0000
with a copy to: XXXXX, BONACQUIST & FOX LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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XXXXXXXX XXXXXX XXXXXXXX
AND XXXX LLP
2290 First National Building
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Tel: 313/000-0000
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Fax: 313/000-0000
KRONISH XXXX XXXXXX & XXXXXXX LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx.
Tel: 212/000-0000
Fax: 212/000-0000
If to Agent: THE OZER GROUP LLC
Xxxxxxxx Xxxxxx Xxxxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx
Fax: 781/000-0000
With a copy to: XXXXXX XXXXXXXX LLP
000 Xxxxxxxxxxx Xxxxxx - Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: I. Xxxxxxx Xxxxx
Tel: 313/000-0000
Fax: 313/0000-0000
16.2 Governing Law; Consent to Jurisdiction. This Agreement shall be
governed and construed in accordance with the laws of the State of Michigan,
without regard to conflicts of laws principles thereof. The parties hereto agree
that the Bankruptcy Court shall retain jurisdiction to hear and finally
determine any disputes arising from or under this Agreement, and by execution of
this Agreement each party hereby irrevocably accepts and submits to the
jurisdiction of such court with respect to any such action or proceeding and to
service of process by certified mail, return receipt requested to the address
listed above for each party.
16.3 Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the transactions contemplated hereby
and supersedes and cancels all prior agreements, including, but not limited to,
all proposals, letters of intent or representations, written or oral, with
respect thereto.
16.4 Amendments. This Agreement may not be modified except in a written
instrument executed by each of the parties hereto.
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16.5 No Waiver. No consent or waiver by any party, express or implied,
to or of any breach or default by the other in the performance of its
obligations hereunder shall be deemed or construed to be a consent or waiver to
or of any other breach or default in the performance by such other party of the
same or any other obligation of such party. Failure on the part of any party to
complain of any act or failure to act by the other party or to declare the other
party in default, irrespective of how long such failure continues, shall not
constitute a waiver by such party of its rights hereunder.
16.6 Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon Agent and Merchant, including, but not limited to, any
chapter 11 or chapter 7 trustee. Merchant and Agent may not assign their
respective obligations under this Agreement; provided however, it is understood
that Merchant and/or Agent may assign their respective rights under this
Agreement to their respect lenders.
16.7 Execution in Counterparts. 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 such facsimile signature shall be treated as an
original signature hereunder.
16.8 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.
16.9 Survival. All representations, warranties, covenants and
agreements made herein, 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.
16.10 Reporting. If requested by Merchant, Agent shall prepare weekly
reports including, without limitation, reports that comply with the Merchant's
current weekly cash reporting to its central office, reflecting the progress of
the Sale which shall specify the Proceeds received to date. The Agent will
maintain and provide to Merchant sales records to permit calculation of and
compliance with any percentage rent obligations under Stores leases. During the
course of the Sale, Merchant shall have the right to have representatives
continually act as observers of the Sale in the Stores so long as they do not
interfere with the conduct of the Sale.
16.11 Termination. This Agreement shall remain in full force and effect
until the first to occur of: (i) receipt by Merchant or Agent, as the case may
be, of written notice from Merchant or Agent, as the case may be, or that any of
the conditions specified in Section 10 hereof have not been satisfied; or (ii)
the expiration of the Sale Term and completion and certification by Merchant and
Agent of the final Sale reconciliation pursuant to Section 8.7 above.
Notwithstanding the foregoing, the representations and warranties of Merchant
and Agent contained herein and the provisions of Section 11 above and the
indemnification
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obligations contained in Sections 13.1 and 13.2 shall survive the termination of
this Agreement pursuant to this Section 16.11.
16.12 Bidding Procedures/Bankruptcy Matters. In consideration of Agent
conducting its due diligence and entering into this Agreement, which serves as a
base by which other offers may be measured and is subject to higher and better
offers by way of a bidding process, all subject to the approval of the Court and
as more fully set forth in the motion to approve this Agreement, Merchant agrees
to pay Agent from the proceeds of the offer received from the successful bidder
(to the extent that Agent is not the successful bidder) a break-up fee in the
amount of $50,000 ("Break-Up Fee"). Notwithstanding the foregoing, the Agent's
obligations hereunder are not contingent upon the Court approving the foregoing
Break-Up Fee. In addition, any procedures for solicitation of higher and better
offers to act as Agent hereunder, shall require that such competing bids provide
for a Guaranteed Amount of at least .5% above the Guaranteed Percentage set
forth herein. Subsequent bids shall be increased by increments of at least .1%
over the immediately preceding bid.
16.13 Security Interest. Upon payment of the Initial Guaranty Payment
to Merchant and the issuance of the Guaranty L/C and the Expense L/C in favor of
Merchant and in consideration of the Agent's payment of the Guaranteed Amount,
the Recovery Amount, if any, the Additional Recovery Amount, if any, and
Expenses, and the provision of services hereunder to Merchant, Merchant hereby
grants to Agent a first priority security interest in and lien upon the
Merchandise and the Proceeds to secure all obligations of Merchant to Agent
hereunder. Until the payment of the Guaranteed Amount in full, the security
interest granted to Agent hereunder shall remain junior to the security interest
of Merchant's secured pre-petition and post-petition lenders, to the extent of
the unpaid portion of the Guaranteed Amount. Upon entry of the Approval Order
and payment of the Initial Guaranteed Payment and the issuance of the Guaranty
L/C and the Expense L/C, the security interest granted to Agent hereunder shall
be deemed properly perfected without the need for further filings or
documentation. Agent further agrees that in the event Agent fails to pay
Merchant any portion of the Guaranteed Amount, Expenses, the Recovery Amount,
the Additional Recovery Amount, or any other undisputed amounts due Merchant
under this Agreement, and such failure shall continue for five (5) days after
written notice by Merchant to Agent, then the security interest granted to Agent
hereunder shall be deemed released in an amount equal to such unpaid amounts,
provided however, the balance of Agent's security interest shall remain in full
force and effect.
IN WITNESS WHEREOF, Agent and Merchant hereby execute this Agreement by
their duly authorized representatives as of the day and year first written
above.
JACOBSONS STORES, INC.
By: /s/Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: President/CEO
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THE OZER GROUP LLC
By: /s/Xxxxx Xxxxxx
-----------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
CONSENTED AND AGREED TO
AS TO SECTIONS 3.3(c), 3.3(d)(ii) and 16.13
BY FLEET RETAIL FINANCE, INC. on
Behalf of itself and as agent for the Consortium
of Merchant's Secured Lenders
By: /s/X. X. Xxxxxx
-----------------------
Name: X. X. Xxxxxx
Title: Managing Director
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