SUPPLY AGREEMENT
SUPPLY AGREEMENT, dated as of October 31, 1998, between Xxxxxx &
Xxxxx, Inc., Delaware corporation having an office located at 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("B&N"), and xxxxxxxxxxxxxx.xxx llc, a Delaware limited
liability company having an office located at 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "LLC"). Capitalized terms used herein without
definition shall have the meanings assigned to such terms in the Amended and
Restated Limited Liability Company Agreement effective as of October 31, 1998 of
the LLC, as the same may be amended or modified from time to time (the "LLC
Agreement").
WHEREAS, to enable the LLC to obtain the benefits of any purchasing
discounts available to B&N, the parties desire that B&N shall from time to time
order Products (as defined below) on behalf of the LLC, on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Orders. (a) During the term of this Agreement, the LLC may from
time to time, in its sole discretion, place orders for Products with B&N (each
an "Order"). "Products" shall mean books, magazines and other products generally
sold by B&N in its retail stores. Nothing in this Agreement is intended to limit
the LLC from placing orders for Products with any other entity.
(b) Once an Order is placed by the LLC, B&N shall use its
commercially reasonable efforts to fill such Order as promptly as practical in
accordance with the terms of such Order. Products ordered hereunder by the LLC
shall be delivered to the LLC's warehouse at 000X Xxxxxx Xxxx., Xxxxxx, Xxx
Xxxxxx 00000, unless otherwise mutually agreed upon by the parties hereto. B&N
shall give Orders placed by the LLC equal priority with Orders placed by any
other entity, including, without limitation, B&N. B&N shall not be responsible
for any delays by third-party suppliers in the filling of any Order.
2. Price. For all Products ordered by the LLC under this Agreement,
B&N shall charge the LLC B&N's cost for such Products plus Incremental Overhead
(as defined below). Payment for Orders shall be due 30 days from the date of
such Order, provided that B&N shall refund any payments made for Orders which
B&N is unable to fill within 30 days of such determination by B&N. "Incremental
Overhead" shall mean the cost incurred by B&N and its Affiliates to third
parties, including, without limitation, costs for shipping and handling, and any
direct labor costs incurred by B&N and its Affiliates in excess of the cost that
would have been incurred in the absence of the performance by B&N and its
Affiliates of B&N's obligations hereunder.
3. No Agency. The parties hereto are independent contractors and
nothing in this Agreement is intended to, nor shall it, create any agency,
partnership or joint venture relationship between them. With respect to any
third party, no party hereto, or any of its officers, directors, employees or
agents, shall have the right or authority to bind or otherwise obligate the
other party hereto in any way as a consequence of this Agreement.
4. Termination. This Agreement shall terminate on the date that
either B&N and its Affiliates or BAG and its Affiliates cease to own a
Membership Interest of at least 10% of the outstanding Membership Interests, but
may be terminated earlier as follows:
(a) the LLC may, in accordance with the provisions of Section
4.7(a) of the LLC Agreement, terminate this Agreement on thirty (30) days' prior
written notice to B&N.
(b) B&N may terminate this Agreement:
(i) within the sixty (60) day period following the one hundred
and eightieth day (180) after a transfer pursuant to Section 7.3 of the LLC
Agreement;
(ii) the LLC is in default of the terms of this Agreement and
such default continues for more than thirty (30) days after written notice
thereof to the LLC and BAG (as such term is defined in the LLC Agreement),
provided that such default is not principally as a result of the action or
inaction of the BN Managers;
(iii) in the event that B&N or the LLC shall (A) apply for or
consent to the appointment of, or the taking possession by, a receiver,
custodian, trustee, examiner, liquidator or the like of itself or of all or
any substantial part of its property, (B) make a general assignment for the
benefit of its creditors, (C) commence a voluntary case under the Federal
Bankruptcy Code of 1978, as amended, or (D) file a petition as a debtor
seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement or
winding-up, or composition or readjustment of its debts; or
(iv) if a proceeding or case shall be commenced against any of
B&N or the LLC, without such party's application or consent, seeking (A)
its reorganization, liquidation, dissolution, arrangement or winding-up, or
the composition or readjustment of its debts, (B) the appointment of a
receiver, custodian, trustee, examiner or liquidator or the like of such
party or of all or any substantial part of its property, or (C) similar
relief in respect of such party under any law relating to bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement or
winding-up, or composition or adjustment of debts, and such proceeding or
case shall continue undismissed, or an order, judgment or decree approving
or ordering any of the foregoing shall be entered and continue unstayed and
in effect, for a period of 60 or more days.
5. Miscellaneous. (a) This Agreement shall be governed by the
internal laws of the State of New York without giving effect to the conflict of
law principles thereof.
(b) Neither party shall be liable to fulfill its obligations
hereunder, or for delays in performance, due to causes beyond its reasonable
control, including, but not limited to, acts of God, acts or omissions of
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civil or military authority, fires, strikes, floods, epidemics, riots or acts of
war.
(c) This Agreement sets forth the entire agreement between the
parties hereto with respect to the subject matter hereof and is intended to
supersede all prior negotiations, understandings and agreements. No provision of
this Agreement may be waived or amended, except by a writing signed by the
parties hereto.
(d) This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and together which shall constitute
one and the same instrument.
(e) The failure of either party to exercise any right or remedy
provided for herein shall not be deemed a waiver of any right or remedy
hereunder.
(f) If any provision of this Agreement is determined by a court
of competent jurisdiction to be invalid or otherwise unenforceable, such
determination shall not affect the validity or enforceability of any remaining
provisions of this Agreement. If any provision of this Agreement is invalid
under any applicable statute or rule of law, it shall be enforced to the maximum
extent possible so as to effect the intent of the parties, and the remainder of
this Agreement shall continue in full force and effect.
(g) Any and all notices or other communications hereunder shall
be sufficiently given if in writing and sent by hand, telecopier, reputable
overnight courier or by certified mail, return receipt requested, postage
prepaid, addressed to the party to receive the same at its address as set forth
on page 1 hereof, or to such other address as the party to receive the same
shall have specified by written notice given in the manner provided for in this
Section 5(g). Such notices or other communications shall be deemed to have been
given on the date of such delivery. Either party may change its address for the
purpose of this Agreement by notice to the other party given as aforesaid.
(h) This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns, provided that the LLC may not assign any of its rights hereunder
without the prior written consent of B&N.
(i) The section headings used herein are for the convenience of
the parties only, are not substantive and shall not be used to interpret or
construe any of the provisions contained herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first set forth above.
XXXXXX & XXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice
President of Finance
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xxxxxxxxxxxxxx.xxx llc
By: xxxxxxxxxxxxxx.xxx inc., its managing
member
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice
President, Finance
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