EXHIBIT 10.2
SHARED SERVICES AGREEMENT
DATED AS OF JANUARY 30, 2005
BETWEEN
DSW INC.
AND
RETAIL VENTURES, INC.
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.................................................... 2
SECTION 1.02. Internal References............................................ 5
ARTICLE II
PURCHASE AND SALE OF SERVICES
SECTION 2.01. Purchase and Sale of Retail Venture Services................... 5
SECTION 2.02. Purchase and Sale of DSW Services.............................. 6
SECTION 2.03. Additional Services............................................ 6
ARTICLE III
SERVICE COSTS; OTHER CHARGES
SECTION 3.01. Service Costs Generally........................................ 7
SECTION 3.02. Customary Billing.............................................. 7
SECTION 3.03. Pass-Through Billing........................................... 7
SECTION 3.04. Percent of Sales Billing....................................... 8
SECTION 3.05. Benefit Billing................................................ 8
SECTION 3.06. Invoicing and Settlement of Costs.............................. 8
ARTICLE IV
STANDARD OR PERFORMANCE AND INDEMNIFICATION
SECTION 4.01. General Standard of Service.................................... 9
SECTION 4.02. Delegation..................................................... 9
SECTION 4.03. Limitation of Liability........................................ 10
SECTION 4.04. Indemnification Related to Retail Ventures Services............ 12
SECTION 4.05. Indemnification Related to DSW Services........................ 12
ARTICLE V
TERM AND TERMINATION
SECTION 5.01. Term........................................................... 13
SECTION 5.02. Termination.................................................... 13
SECTION 5.03. Effect of Termination.......................................... 14
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ARTICLE VI
INSURANCE MATTERS
SECTION 6.01. DSW Insurance Coverage During Transition Period................ 14
SECTION 6.02. Cooperation; Payment of Insurance Proceeds to DSW; Agreement
not to Release Carriers.................................... 15
SECTION 6.03. DSW Insurance Coverage After the Insurance Transition Period... 15
SECTION 6.04. Deductibles and Self-Insured Obligations....................... 16
SECTION 6.05. Procedures with Respect to Insured DSW Liabilities............. 16
SECTION 6.06. Insufficient Limits of Liability for Retail Ventures
Liabilities and DSW Liabilities............................ 16
SECTION 6.07. Cooperation.................................................... 17
SECTION 6.08. No Assignment or Waiver........................................ 17
SECTION 6.09. No Liability................................................... 17
SECTION 6.10. Additional or Alternate Insurance.............................. 17
SECTION 6.11. Forebearance and Prior Insurance Coverage...................... 17
SECTION 6.12. Further Agreements............................................. 18
ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.01. Annual Budget.................................................. 18
SECTION 7.02. Employment Matters............................................. 18
SECTION 7.03. Shared Expenses Agreement...................................... 18
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Prior Agreements............................................... 19
SECTION 8.02. Other Agreements............................................... 19
SECTION 8.03. Future Litigation and Other Proceedings........................ 19
SECTION 8.04. No Agency...................................................... 19
SECTION 8.05. Subcontractors................................................. 19
SECTION 8.06. Force Majeure.................................................. 20
SECTION 8.07. Entire Agreement............................................... 20
SECTION 8.08. Information.................................................... 20
SECTION 8.09. Notices........................................................ 21
SECTION 8.10. Governing Law.................................................. 21
SECTION 8.11. Severability................................................... 21
SECTION 8.12. Amendment...................................................... 21
SECTION 8.13. Counterparts................................................... 22
SECTION 8.14. Authority...................................................... 22
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SCHEDULES
SCHEDULE I: Services To Be Provided By Retail Ventures, Inc.
SCHEDULE II: Services To Be Provided By DSW Inc.
SCHEDULE III: Insurance Policies Maintained by Retail Ventures, Inc.
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SHARED SERVICES AGREEMENT
This Shared Services Agreement is entered into to be effective as of
January 30, 2005 by and between DSW Inc., an Ohio corporation ("DSW"), and
Retail Ventures, Inc. an Ohio corporation ("Retail Ventures"). DSW and Retail
Ventures are sometimes being referred to herein separately as a "Party" and
together as the "Parties". Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in Article I hereof.
RECITALS
WHEREAS, Retail Ventures beneficially owns 100% of the issued and
outstanding common shares of DSW;
WHEREAS, the Parties currently contemplate that the Articles of
Incorporation of DSW will be amended to authorize 170,000,000 Class A common
shares, without par value (the "Class A common shares") and 100,000,000 Class B
common shares, without par value (the "Class B common shares"), and to change
the currently outstanding DSW common share into 27,702,667 Class B common
shares, all of which Class B common shares will be beneficially-owned by Retail
Ventures;
WHEREAS, the Parties currently contemplate that DSW will make an initial
public offering (the "Offering") of an amount of Class A common shares pursuant
to a registration statement on Form S-1 under the Securities Act of 1933, as
amended (the "Registration Statement");
WHEREAS, immediately following consummation of the Offering, Retail
Ventures will own Class B common shares evidencing at least 80.1% of the
combined voting power of the holders of the Class A common shares and the Class
B common shares with respect to all shareholder matters;
WHEREAS, Retail Ventures directly or indirectly provides certain
administrative, financial, management and other services to the DSW Entities (as
defined below), and DSW directly or indirectly provides certain administrative,
management and other services to the Retail Ventures Entities (as defined
below);
WHEREAS, following consummation of the Offering, Retail Ventures desires
to continue to provide certain administrative, financial, management and other
services to the DSW Entities, and DSW desires to continue to provide certain
administrative, management and other services to the Retail Ventures Entities,
as more fully set forth in this Agreement; and
WHEREAS, each Party desires to set forth in this Agreement the principal
terms and conditions pursuant to which certain services will be provided by it
to, and certain services will be provided to it by, the other Party;
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NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto, for themselves and their respective successors
and assigns, hereby covenant and agree as follows:
ARTICLE I DEFINITIONS
SECTION 1.01. Definitions. (a) As used in this Agreement, the following
terms shall have the following meanings, applicable both to the singular and the
plural forms of the terms described:
"Agreement" means this Shared Services Agreement, together with the
schedules and exhibits hereto, as the same may be amended and supplemented from
time to time in accordance with the provisions hereof.
"Business Day" means a day other than a Saturday, Sunday or other day on
which commercial banks in New York, New York or Columbus, Ohio are authorized or
required by law to close.
"Contract" means any contract, agreement, lease, license, sales order,
purchase order, instrument or other commitment that is binding on any Person or
any part of such Person's property under applicable law.
"Department" means a business section or division of a Party.
"Distribution Date" means the date on which Retail Ventures is no longer
required to consolidate DSW's results of operations and financial condition
(determined in accordance with generally accepted accounting principles
consistently applied) with Retail Ventures' results of operations and financial
condition.
"DSW Business" means the specialty branded footwear retail business
engaged in by DSW, as more completely described in the Registration Statement,
and any businesses added under the control of DSW.
"DSW Entities" means DSW Inc. and its Subsidiaries, and "DSW Entity" means
any one of the DSW Entities.
"DSW Liabilities" has the meaning set forth in the Master Separation
Agreement.
"DSW Services" means the various services to be provided by DSW on behalf
of the Retail Ventures Entities as described in this Agreement and/or in
Schedule II.
"Exchange Agreement" means an agreement between the parties relating to
the exchange of Class A common shares for Class B common shares.
"Insurance Policies" means insurance policies pursuant to which a Person
makes a true risk transfer to an insurer.
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"Insurance Proceeds" means those monies: (a) received by an insured from
an insurance carrier; or (b) paid by an insurance carrier on behalf of the
insured; or (c) from Insurance Policies.
"Insured DSW Liability" means any DSW Liability to the extent that (i) it
is covered under the terms of Retail Ventures' Insurance Policies in effect
prior to the end of the Insurance Transition Period, and (ii) DSW is not a named
insured under, or otherwise entitled to the benefits of, such Insurance
Policies.
"Liabilities" means all debts, liabilities, guarantees, assurances,
commitments and obligations, whether fixed, contingent or absolute, asserted or
unasserted, matured or unmatured, liquidated or unliquidated, accrued or not
accrued, known or unknown, due or to become due, whenever or however arising
(including, without limitation, whether arising out of any Contract or tort
based on negligence or strict liability) and whether or not the same would be
required by generally accepted principles and accounting policies to be
reflected in financial statements or disclosed in the notes thereto.
"Master Separation Agreement" means an agreement to be entered into by the
Parties in connection with the Offering to set forth the principal arrangements
between them regarding the separation of the DSW business from Retail Ventures.
"Offering Date" means 12:01 a.m., New York City Time, on the date on which
the Offering is consummated.
"Person" means any individual, partnership, limited liability company,
joint venture, corporation, trust, unincorporated organization, government
(including any department or agency thereof) or other entity.
"Retail Ventures Entities" means Retail Ventures and its Subsidiaries
(other than the DSW Entities), and "Retail Venture Entity" means any one of the
Retail Venture Entities currently in place on the effective date of the
Registration Statement and any businesses added under the control of Retail
Ventures.
"Retail Ventures Services" means the various services to be provided by
Retail Ventures on behalf of the DSW Entities as described in this Agreement, in
Schedule I and/or in Schedule III.
"RVSI" means Retail Ventures Services, Inc., an Ohio corporation and
wholly-owned subsidiary of Retail Ventures.
"Schedule I" means the first Schedule attached hereto which lists Services
to be provided by Retail Ventures on behalf of or for DSW Entities and sets
forth the related Retail Ventures Service Costs and/or billing methodology.
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"Schedule II" means the second Schedule attached hereto which lists
Services to be provided by DSW on behalf of or for Retail Ventures Entities and
sets forth the related DSW Service Costs and/or billing methodology.
"Schedule III" means the third Schedule attached hereto which lists the
Insurance Policies to be maintained by Retail Ventures on behalf of or for the
DSW Entities and premium expenses and/or the methodology for calculating the
premium expenses to be paid by DSW for insurance coverage under such Insurance
Policies.
"Schedules" means any one or more of the schedules referred to in and
attached to this Agreement.
"Services" means the DSW Services and/or the Retail Ventures Services, as
the context may require.
"Subsidiary" means, as to any Person, any corporation, association,
partnership, joint venture or other business entity of which more than 50% of
the voting capital stock or other voting ownership interests is owned or
controlled directly or indirectly by such Person or by one or more of the
Subsidiaries of such Person or by a combination thereof.
"Tax Separation Agreement" means the Tax Separation Agreement attached as
Exhibit A to the Master Separation Agreement.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
TERM SECTION
---- -------
Annual Budget 7.01
Actions 4.04(a)
Applicable Insurance 6.11(a)
Benefit Billing 3.01
Benefits Services 3.05(b)
Billing Party 3.02
Class A common shares Preamble
Class B common shares Preamble
Coverage Amount 6.06(a)(i)
Customary Billing 3.01
DSW Covered Parties 6.01(a)
DSW Inc. Preamble
DSW Indemnified Person 4.04(b)
DSW Service Costs 3.01
Employee Welfare Plans 4.02
Force Majeure 8.06(a)
Initial Term 5.01
Insurance Transition Period 6.01(a)
Net Sales Ratio 3.04
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Offering Preamble
Overallocated Party 6.06(a)(iii)
Parties Preamble
Party Preamble
Pass-Through Billing 3.01
Payment Date 3.06(b)
Percent of Sales Billing 3.01
Prior Agreements 8.01
Receiving Party 3.02
Registration Statement Preamble
Retail Ventures Preamble
Retail Ventures Indemnified Person 4.03(a)
Retail Ventures Insurance Policies 6.01(a)
Retail Ventures Plans 3.05(a)
Retail Ventures Service Costs 3.01
Service Costs 3.06(a)
Shared Expenses Agreement 7.03
Terminated Party 5.03(a)
Terminating Party 5.03(a)
Underallocated Party 6.06(a)(iii)
SECTION 1.02. Internal References. Unless the context indicates otherwise,
references to Articles, Sections and paragraphs shall refer to the corresponding
articles, sections and paragraphs in this Agreement and references to the
parties shall mean the parties to this Agreement.
ARTICLE II
PURCHASE AND SALE OF SERVICES
SECTION 2.01. Purchase and Sale of Retail Ventures Services.
(a) Subject to the terms and conditions of this Agreement and in
consideration of the Retail Ventures Service Costs described below, Retail
Ventures agrees to provide to the applicable DSW Entities, or to procure the
provision to such entities, and DSW agrees to purchase from Retail Ventures, the
Retail Ventures Services. Unless otherwise specifically agreed by Retail
Ventures and DSW, the Retail Ventures Services shall be substantially similar in
scope, quality, and nature to those customarily provided to, or procured on
behalf of, the DSW Entities by Retail Ventures and/or its Subsidiaries prior to
the Offering Date.
(b) The Parties acknowledge and agree that (i) the Retail Ventures
Services to be provided by the applicable Retail Ventures Entities under this
Agreement shall, at DSW 's request, be provided directly to Subsidiaries of DSW
and (ii) Retail Ventures may satisfy its obligation to provide or to procure the
Retail Ventures Services hereunder by causing one or more of its Subsidiaries,
including, but not limited to, RVSI, to provide or to procure such services.
With respect to the Retail Ventures Services provided to, or procured on behalf
of, any
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Subsidiary of DSW, DSW agrees to pay on behalf of such Subsidiary all amounts
payable by or in respect of such services pursuant to this Agreement.
Section 2.02. Purchase and Sale of DSW Services
(a) Subject to the terms and conditions of this Agreement and in
consideration of the DSW Service Costs described below, DSW agrees to provide to
the applicable Retail Ventures Entities, or to procure the provision to such
entities of, and Retail Ventures agrees to purchase from DSW, the DSW Services.
Unless otherwise specifically agreed by Retail Ventures and DSW, the DSW
Services shall be substantially similar in scope, quality, and nature to those
customarily provided to, or procured on behalf of, the Retail Ventures Entities
by DSW and/or its Subsidiaries (and/or the Retail Ventures Departments providing
the Services which are now a part of DSW) prior to the Offering Date.
(b) The Parties acknowledge and agree that (i) the DSW Services to be
provided by the applicable DSW Entities on behalf of Retail Ventures under this
Agreement shall, at Retail Ventures' request, be provided directly to
Subsidiaries of Retail Ventures and (ii) DSW may satisfy its obligation to
provide or to procure the DSW Services hereunder by causing one or more of its
Subsidiaries to provide or to procure such services. With respect to the DSW
Services provided to, or procured on behalf of, any Subsidiary of Retail
Ventures, Retail Ventures agrees to pay on behalf of such Subsidiary all amounts
payable by or in respect of such services pursuant to this Agreement.
SECTION 2.03 Additional Services.
(a) In addition to the Retail Ventures Services to be provided or procured
by Retail Ventures in accordance with Section 2.01, if requested by DSW, and to
the extent that Retail Ventures and DSW may mutually agree, Retail Ventures
shall provide additional services (including services not provided by Retail
Ventures to the DSW Entities prior to the Offering Date) to DSW. The scope of
any such services, as well as the costs and other terms and conditions
applicable to such services, shall be as mutually agreed by Retail Ventures and
DSW.
(b) In addition to the DSW Services to be provided or procured by DSW in
accordance with Section 2.02, if requested by Retail Ventures, and to the extent
that Retail Ventures and DSW may mutually agree, DSW shall provide additional
services (including services not provided by DSW to the Retail Ventures Entities
prior to the Offering Date) to Retail Ventures. The scope of any such services,
as well as the costs and other terms and conditions applicable to such services,
shall be as mutually agreed by Retail Ventures and DSW.
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ARTICLE III
SERVICE COSTS; OTHER CHARGES
SECTION 3.01. Service Costs Generally. The Schedules hereto indicate, with
respect to the DSW Services and the Retail Ventures Services, respectively,
listed therein, whether the costs to be charged for Services are to be
determined by (i) the customary billing method described in Section 3.02
("Customary Billing"), (ii) the pass-through billing method described in Section
3.03 ("Pass-Through Billing"), (iii) the percentage of DSW's net sales method
described in Section 3.04 ("Percent of Sales Billing"), (iv) a calculation of
certain costs related to employee benefit plans and benefit arrangements
described in Section 3.05 ("Benefit Billing"), or (v) another specified method.
Unless otherwise indicated on the Schedules, the Customary Billing method will
apply. The costs to be paid by DSW to Retail Ventures for Retail Venture
Services are collectively referred to herein as the "Retail Ventures Service
Costs". DSW agrees to pay to Retail Ventures in the manner set forth in Section
3.06 an amount equal to the Retail Ventures Service Costs applicable to each of
the Retail Ventures Services provided or procured by Retail Ventures. The costs
to be paid by Retail Ventures to DSW for the DSW Services are collectively
referred to herein as the "DSW Service Costs". Retail Ventures agrees to pay to
DSW in the manner set forth in Section 3.06 an amount equal to the DSW Service
Costs applicable to each of the DSW Services provided or procured by DSW.
SECTION 3.02. Customary Billing. The costs of Services as to which the
Customary Billing method applies shall be equal to the costs customarily charged
and/or allocated by one Party and/or one or more of its Subsidiaries or
Departments (the "Billing Party") to the other Party and/or one or more of its
Subsidiaries or Departments (the "Receiving Party") immediately prior to the
Offering Date (it being understood that from and after the Offering Date such
costs may be increased by the Billing Party in a manner consistent with the
manner in which such costs were increased from time to time prior to the
Offering Date, and consistent with the semi-annual reconciliation described in
Section 7.01).
SECTION 3.03. Pass-Through Billing. The costs of Services as to which the
Pass-Through Billing method applies shall be equal to the aggregate amount of
third-party, out-of-pocket costs and expenses incurred by a Billing Party on
behalf of a Receiving Party (which costs shall include but not be limited to the
costs incurred in connection with obtaining the consent of any party to a
contract or agreement to which any Billing Party is a party where such consent
is related to and reasonably required for the provision of any Service). It is
intended that Services provided by third parties will be billed directly to the
Receiving Party by the third party; however, if a Billing Party incurs any such
costs or expenses on behalf of any Receiving Party as well as businesses
operated by the Billing Party, the Billing Party shall allocate any such costs
or expenses in good faith between the various businesses on behalf of which such
costs or expenses were incurred as set forth on any Schedule hereto or, if not
set forth on a Schedule, then as the Billing Party shall determine in the
exercise of the Billing Party's reasonable judgment. The Billing Party shall
apply usual and accepted accounting conventions in making such allocations, and
the Billing Party or its agents shall keep and maintain such books and records
as may be reasonably necessary to make such allocations. The Billing Party shall
make copies of such books and records available to the Receiving Party upon
request and with reasonable notice.
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SECTION 3.04. Percent of Sales Billing. Retail Ventures Services for which
the billing methodology is the Percent of Sales Billing method shall not be
billed individually. Instead, Retail Ventures shall provide all such services
for an aggregate annual cost equal to the amount obtained by multiplying (x)
Retail Ventures' projected budget for all services which are the same or similar
to the applicable Retail Ventures Service which are to be provided to all Retail
Ventures Entities and DSW Entities for the relevant year, by (y) the projected
net sales for the year of the DSW Entities divided by the aggregate projected
net sales of all Retail Ventures Entities and DSW Entities (the "Net Sales
Ratio"). At the end of the applicable fiscal year, actual expenses versus
budgeted expenses for the relevant Retail Venture Service shall be compared and
any overage or shortfall shall be allocated based upon the Net Sales Ratio.
Retail Ventures' budget for Retail Venture Services to be provided to DSW as
contemplated by this Section 3.04 shall be determined on a basis consistent with
the manner in which Retail Ventures determines the similar budgets for the
Retail Venture Entities.
SECTION 3.05. Benefit Billing.
(a) Prior to the Offering Date, certain associates of DSW participated in
certain benefit plans sponsored by Retail Ventures ("Retail Ventures Plans"). On
and after the Offering Date, DSW associates shall continue to be eligible to
participate in the Retail Ventures Plans, subject to the terms of the governing
plan documents as interpreted by the appropriate plan fiduciaries. On and after
the Offering Date, subject to regulatory requirements and the provisions of
Section 4.01 hereof, Retail Ventures shall continue to provide Benefit Services
(as hereafter defined) to and in respect of DSW associates with reference to
Retail Ventures Plans as administered by Retail Ventures prior to the Offering
Date.
(b) The costs payable by DSW for Retail Ventures Services relating to the
administration of employee plans and benefit arrangements, which are included in
Human Resources in Schedule I ("Benefit Services"), shall be determined and
billed as set forth in Schedule I. The Parties acknowledge and agree that some
of the costs associated with certain Retail Ventures Plans will be paid
principally through DSW employee payroll deductions for such plans as specified
in Schedule I. The Parties intend that the Retail Ventures Service Costs
relating to the performance of Benefit Services shall not exceed reasonable
compensation for such services as defined under applicable law.
(c) Each Party may request changes in the applicable terms of or Retail
Ventures Services relating to the Retail Ventures Plans, approval of which shall
not be unreasonably withheld; provided, however, that changes in the terms and
provisions of any of the Retail Ventures Plans shall be in the sole discretion
of Retail Ventures. The Parties agree to cooperate fully with each other in the
administration and coordination of regulatory and administrative requirements
associated with Retail Ventures Plans.
SECTION 3.06. Invoicing and Settlement of Costs.
(a) Except as otherwise provided in a Schedule to this Agreement or to the
extent that Retail Ventures and DSW may mutually agree, each Billing Party shall
invoice or notify the
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Chief Executive Officer or Chief Financial Officer of the Receiving Party on a
monthly basis (not later than the tenth day of each month), in a manner
substantially similar to and consistent with the billing practices used in
connection with services provided by Retail Ventures to the DSW Entities prior
to the Offering Date (except as otherwise agreed), of the Service Costs related
to services performed or procured by the Billing Party during the prior calendar
month. As used herein, "Service Costs" means the Retail Ventures Service Costs,
if Retail Ventures is the Billing Party, and the DSW Service Costs, if DSW is
the Billing Party. In connection with the invoicing described in this Section
3.06(a), the Billing Party shall provide to the Receiving Party the same billing
data and level of detail as customarily or similar to that provided to the
Receiving Party prior to the Offering Date and such other related data as may be
reasonably requested by the Receiving Party.
(b) The Receiving Party agrees to pay to the Billing Party, on or before
the 30th day after the date on which the Billing Party delivers to the Receiving
Party an invoice or notice of Service Costs (or the next Business Day, if such
30th day is not a Business Day) (each, a "Payment Date"), by wire transfer of
immediately available funds payable to the order of the Billing Party, all
amounts so invoiced or noticed by the Billing Party pursuant to Section 3.06(a).
If the Receiving Party fails to pay any monthly payment within 30 days of the
relevant Payment Date, the Receiving Party shall be obligated to pay, in
addition to the amount due on such Payment Date, interest on such amount at the
prime, or best, rate announced by National City Bank, compounded monthly from
the relevant Payment Date through the date of payment. Payment can be made via
check, ACH or wire and, except as set forth in Section 3.15(c) of the Master
Separation Agreement, offsetting is not permitted.
ARTICLE IV
STANDARD OF PERFORMANCE AND INDEMNIFICATION
SECTION 4.01. General Standard of Service. Except as otherwise agreed to
in writing by the Parties or as described in this Agreement, and provided that a
Party is not restricted by contract with third parties or by applicable law, the
Parties agree that the nature, quality, and standard of care applicable to the
delivery of the Services hereunder shall be substantially the same as or
consistent with that applicable to the similar services provided by a Party to
the other Party prior to the Offering Date. Retail Ventures shall use its
reasonable efforts to ensure that the nature and quality of Services provided to
DSW associates under Retail Ventures Plans, either by Retail Ventures directly
or through administrators under contract, shall be undifferentiated as compared
with the same services provided to or on behalf of Retail Ventures associates
under Retail Ventures Plans.
SECTION 4.02. Delegation. Subject to Section 4.01 above, DSW hereby
delegates to Retail Ventures final, binding, and exclusive authority,
responsibility, and discretion to interpret and construe the provisions of
employee welfare benefit plans in which associates of DSW Entities have elected
to participate and which are administered by Retail Ventures under this
Agreement (collectively, "Employee Welfare Plans"). Retail Ventures may further
delegate such authority to other parties to:
(i) provide administrative and other services;
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(ii) reach factually supported conclusions consistent with the
terms of the respective Employee Welfare Plans;
(iii) make a full and fair review of each claim denial and
decision related to the provision of benefits provided or arranged for
under the Employee Welfare Plans pursuant to the requirements of ERISA, if
within 60 days after receipt of the notice of denial, a claimant requests
in writing a review for reconsideration of such decisions (the party
adjudicating the claim shall notify the claimant in writing of its
decision on review and such notice shall satisfy all ERISA requirements
relating thereto); and
(iv) notify the claimant in writing of its decision on review.
SECTION 4.03. Limitation of Liability.
(a) Retail Ventures Entities
(i) DSW agrees that none of the Retail Ventures Entities and their
respective directors, officers, agents, and employees (each, a "Retail
Ventures Indemnified Person") shall have any liability, whether direct or
indirect, in contract or tort or otherwise, to any DSW Entity or any other
Person for or in connection with the Retail Ventures Services rendered or
to be rendered by any Retail Ventures Indemnified Person pursuant to this
Agreement, the transactions contemplated hereby or any Retail Ventures
Indemnified Person's actions or inactions in connection with any Retail
Ventures Services or such transactions, except for damages which have
resulted from such Retail Ventures Indemnified Person's gross negligence
or willful misconduct in connection with any Retail Ventures Services,
actions or inactions.
(ii) Notwithstanding the provisions of this Section 4.03(a), none of
the Retail Venture Entities shall be liable for any special, indirect,
incidental, or consequential damages of any kind whatsoever (including,
without limitation, attorneys' fees) in any way due to, resulting from or
arising in connection with any of the Retail Ventures Services or the
performance of or failure to perform Retail Ventures' obligations under
this Agreement. This disclaimer applies without limitation (1) to claims
arising from the provision of the Retail Ventures Services or any failure
or delay in connection therewith; (2) to claims for lost profits; (3)
regardless of the form of action, whether in contract, tort (including
negligence), strict liability, or otherwise; and (4) regardless of whether
such damages are foreseeable or whether Retail Ventures has been advised
of the possibility of such damages.
(iii) None of the Retail Venture Entities shall have any liability
to any DSW Entity or any other Person for failure to perform Retail
Ventures' obligations under this Agreement or otherwise, where (1) such
failure to perform is not caused by the gross negligence or willful
misconduct of the Retail Venture Entity designated to perform such
obligations and (2) such failure to perform similarly affects the Retail
Venture Entities
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receiving the same or similar services and does not have a
disproportionately adverse effect on the DSW Entities, taken as a whole.
(iv) In addition to the foregoing, DSW agrees that, in all
circumstances, it shall use commercially reasonable efforts to mitigate
and otherwise minimize damages to the DSW Entities, individually and
collectively, whether direct or indirect, due to, resulting from or
arising in connection with any failure by Retail Ventures to comply fully
with Retail Ventures' obligations under this Agreement.
(b) DSW Entities
(i) Retail Ventures agrees that none of the DSW Entities and their
respective directors, officers, agents, and employees (each, a "DSW
Indemnified Person") shall have any liability, whether direct or indirect,
in contract or tort or otherwise, to any Retail Ventures Entity or any
other Person for or in connection with the DSW Services rendered or to be
rendered by any DSW Indemnified Person pursuant to this Agreement, the
transactions contemplated hereby or any DSW Indemnified Person's actions
or inactions in connection with any DSW Services or such transactions,
except for damages which have resulted from such DSW Indemnified Person's
gross negligence or willful misconduct in connection with any DSW
Services, actions or inactions.
(ii) Notwithstanding the provisions of this Section 4.03(b), none of
the DSW Entities shall be liable for any special, indirect, incidental, or
consequential damages of any kind whatsoever (including, without
limitation, attorneys' fees) in any way due to, resulting from or arising
in connection with any of the DSW Services or the performance of or
failure to perform DSW's obligations under this Agreement. This disclaimer
applies without limitation (1) to claims arising from the provision of the
DSW Services or any failure or delay in connection therewith; (2) to
claims for lost profits; (3) regardless of the form of action, whether in
contract, tort (including negligence), strict liability, or otherwise; and
(4) regardless of whether such damages are foreseeable or whether DSW has
been advised of the possibility of such damages.
(iii) None of the DSW Entities shall have any liability to any
Retail Ventures Entity or any other Person for failure to perform DSW's
obligations under this Agreement or otherwise, where (1) such failure to
perform is not caused by the gross negligence or willful misconduct of the
DSW Entity designated to perform such obligations and (2) such failure to
perform similarly affects the DSW Entities receiving the same or similar
services and does not have a disproportionately adverse effect on the
Retail Ventures Entities, taken as a whole.
(iv) In addition to the foregoing, Retail Ventures agrees that, in
all circumstances, it shall use commercially reasonable efforts to
mitigate and otherwise minimize damages to Retail Ventures Entities,
individually and collectively, whether direct or indirect, due to,
resulting from or arising in connection with any failure by DSW to comply
fully with DSW's obligations under this Agreement.
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SECTION 4.04. Indemnification Related to Retail Ventures Services.
(a) DSW agrees to indemnify and hold harmless each Retail Ventures
Indemnified Person from and against any damages related to, and to reimburse
each Retail Ventures Indemnified Person for all reasonable expenses (including,
without limitation, attorneys' fees) as they are incurred in connection with
investigating, preparing, pursuing, or defending, any claim, action, proceeding,
or investigation, whether or not in connection with pending or threatened
litigation and whether or not any DSW Indemnified Person or any Retail Ventures
Indemnified Person is a party (collectively, "Actions"), arising out of or in
connection with Retail Ventures Services rendered or to be rendered by any
Retail Ventures Indemnified Person pursuant to this Agreement, the transactions
contemplated hereby or any Retail Ventures Indemnified Person's actions or
inactions in connection with any such Retail Ventures Services or transactions;
provided that, DSW shall not be responsible for any damages incurred by any
Retail Ventures Indemnified Person that have resulted from such Retail Ventures
Indemnified Person's gross negligence or willful misconduct in connection with
any of the advice, actions, inactions, or Retail Ventures Services referred to
above (it being understood and agreed that the provision by any Retail Venture
Entity of any of the Retail Ventures Services contemplated by Schedule I hereof
without obtaining the consent of any party to any Contract or agreement to which
any Retail Ventures Entity is a party as of the date hereof shall not constitute
gross negligence or willful misconduct by any Retail Ventures Entity, provided
that, the relevant Retail Ventures Entity has used commercially reasonable
efforts to obtain such consent).
(b) Except as set forth in Section 4.04(c), Retail Ventures agrees to
indemnify and hold harmless each DSW Indemnified Person from and against any
damages related to, and to reimburse each DSW Indemnified Person for all
reasonable expenses as they are incurred in connection with investigating,
preparing, or defending, any Action arising out of or related to the gross
negligence or willful misconduct of any Retail Ventures Indemnified Person in
connection with the Retail Ventures Services rendered or to be rendered pursuant
to this Agreement.
(c) To the extent that any other Person has agreed to indemnify any Retail
Ventures Indemnified Person or to hold a Retail Ventures Indemnified Person
harmless and such Person provides services to Retail Ventures or any affiliate
of Retail Ventures relating directly or indirectly to any employee plan or
benefit arrangement for which Benefit Services are provided under this
Agreement, Retail Ventures will exercise reasonable efforts (x) to make such
agreement applicable to any DSW Indemnified Person so that each DSW Indemnified
Person is held harmless or indemnified to the same extend as any Retail Ventures
Indemnified Person and (y) to make available to each DSW Indemnified Person the
benefits of such agreement.
SECTION 4.05. Indemnification Related to DSW Services.
(a) Retail Ventures agrees to indemnify and hold harmless each DSW
Indemnified Person from and against any damages related to, and to reimburse
each DSW Indemnified Person for all reasonable expenses (including, without
limitation, attorneys' fees) as they are incurred in connection with
investigating, preparing, pursuing, or defending, any Action arising out of or
in connection with DSW Services rendered or to be rendered by any DSW
Indemnified Person pursuant to this Agreement, the transactions contemplated
hereby or any DSW Indemnified
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Person's actions or inactions in connection with any such DSW Services or
transactions; provided that, Retail Ventures shall not be responsible for any
damages incurred by any DSW Indemnified Person that have resulted from such DSW
Indemnified Person's gross negligence or willful misconduct in connection with
any of the advice, actions, inactions, or DSW Services referred to above (it
being understood and agreed that the provision by any DSW Entity of any of the
DSW Services contemplated by Schedule II hereof without obtaining the consent of
any party to any Contract or agreement to which any DSW Entity is a party as of
the date hereof shall not constitute gross negligence or willful misconduct by
any DSW Entity, provided that, the relevant DSW Entity has used commercially
reasonable efforts to obtain such consent).
(b) DSW agrees to indemnify and hold harmless the Retail Ventures
Indemnified Persons from and against any damages related to, and to reimburse
each Retail Ventures Indemnified Person for all reasonable expenses as they are
incurred in connection with investigating, preparing, or defending, any Action
arising out of or related to the gross negligence or willful misconduct of any
DSW Indemnified Person in connection with the DSW Services rendered or to be
rendered pursuant to this Agreement.
ARTICLE V
TERM AND TERMINATION
SECTION 5.01. Term. Except as otherwise provided in this Article V, or in
Section 8.06 or as otherwise agreed in writing by the Parties, (a) this
Agreement shall have an initial term from January 30, 2005 through January 31,
2008 (the "Initial Term"), and will be renewed automatically thereafter for
successive one-year terms unless either Party elects not to renew this Agreement
by notice in writing to the other Party not less than one hundred and eighty
(180) days prior to the end of any term, and (b) a Party's obligation to provide
or to procure, and the other Party's obligation to purchase, a Service shall
cease as of the applicable date set forth in the applicable Schedules or such
earlier date determined in accordance with Section 5.02.
SECTION 5.02. Termination.
(a) Except as otherwise provided herein or in any Schedule hereto, the
Parties may by mutual agreement from time to time terminate this Agreement with
respect to one or more of the Services, in whole or in part.
(b) Retail Ventures may terminate any DSW Service at any time if DSW shall
have failed to perform any of its material obligations under this Agreement
relating to such DSW Service, Retail Ventures shall have notified DSW in writing
of such failure and such failure shall have continued for a period of at least
thirty (30) days after receipt by DSW of written notice of such failure from
Retail Ventures.
(c) DSW may terminate any Retail Ventures Service at any time if Retail
Ventures shall have failed to perform any of its material obligations under this
Agreement relating to such Retail Ventures Service, DSW shall have notified
Retail Ventures in writing of such failure, and such failure shall have
continued for a period of at least thirty (30) days after receipt by Retail
Ventures of written notice of such failure from DSW.
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SECTION 5.03. Effect of Termination.
(a) Other than as required by law, upon termination of any Service
pursuant to Section 5.02, or upon termination of this Agreement in accordance
with its terms, the Party whose Service is terminated (the "Terminated Party")
shall have no further obligation to provide the terminated Service (or any
Service, in the case of termination of this Agreement) and the Party terminating
such Service (the "Terminating Party") shall have no obligation to pay any fees
relating to such terminated Services or to make any other payments hereunder;
provided that, notwithstanding such termination, (i) the Terminating Party shall
remain liable to the Terminated Party for fees owed and payable in respect of
Services provided prior to the effective date of the termination; (ii) the
Terminated Party shall continue to charge the Terminating Party for
administrative and program costs relating to benefits paid after but incurred
prior to the termination of any Service and other services required to be
provided after the termination of such Service, and the Terminating Party shall
be obligated to pay such expenses in accordance with the terms of this
Agreement; and (iii) the provisions of Articles 4, 5, and 8 shall survive any
such termination indefinitely. All program and administrative costs attributable
to associates of any DSW Entity under Retail Ventures Plans that relate to any
period after the effective date of any such termination shall be for the account
of and paid by DSW.
(b) Following termination of this Agreement with respect to any Service
provided or procured by a Party, the Parties agree to cooperate with each other
in providing for an orderly transition of such Service to the other Party or to
a successor service provider as designated by the other Party. Without limiting
the foregoing, Retail Ventures agrees to (i) provide to DSW, within 30 days of
the termination of any Benefit Service, in a usable format designated by Retail
Ventures, copies of all records relating directly or indirectly to benefit
determinations with respect to any and all associates of a DSW Entity,
including, but not limited to, compensation and service records, correspondence,
plan interpretive policies, plan procedures, administration guidelines, minutes,
and any data or records required to be maintained by law and (ii) work with DSW
in developing a transition schedule with respect to such terminated Benefit
Service.
ARTICLE VI
INSURANCE MATTERS
SECTION 6.01. DSW Insurance Coverage During Transition Period.
(a) As of the Offering Date, Retail Ventures shall maintain insurance
coverage under the Insurance Policies listed in Part (a) of Schedule III (the
"Retail Ventures Insurance Policies"). Throughout the period beginning on the
Offering Date and ending upon the earlier of (i) termination of the Service
provided pursuant to this Article VI or (ii) termination or expiration of this
Agreement in accordance with its terms (the "Insurance Transition Period"),
Retail Ventures shall, subject to insurance market conditions and other factors
beyond its control, maintain Insurance Policies covering and for the benefit of
the DSW Entities and their respective directors, officers, and employees
(collectively, the "DSW Covered Parties") which are comparable to those
maintained generally by Retail Ventures covering the DSW Covered Parties prior
to the Offering Date; provided, however, that if Retail Ventures determines that
(i) the amount or scope of such insurance coverage will be reduced to a level
materially inferior to the level of insurance
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coverage in existence immediately prior to the Insurance Transition Period or
(ii) the retention or deductible level applicable to such insurance coverage, if
any, will be increased to a level materially greater than the levels in
existence immediately prior to the Insurance Transition Period, each other than
as a result of the Offering, Retail Ventures shall give DSW notice of such
determination as promptly as practicable. Upon notice of such determination, DSW
shall be entitled to no less than sixty (60) days to evaluate DSW's options
regarding continuance of insurance coverage under said Insurance Policies and
DSW may cancel the DSW Entities' interest in all or any portion of such
insurance coverage as of any day within such sixty (60) day period.
(b) DSW shall promptly pay or reimburse Retail Ventures, as the case may
be, for premium expenses, deductibles or retention amounts, and any other costs
and expenses which Retail Ventures may incur in connection with the insurance
coverages maintained pursuant to this Section 6.01, including but not limited to
any retroactive or subsequent premium adjustments. DSW's share of such costs and
expenses shall be calculated as set forth in Part (b) of Schedule III.
SECTION 6.02. Cooperation; Payment of Insurance Proceeds to DSW; Agreement
Not to Release Carriers. Each Party shall share such information as is
reasonably necessary in order to permit the other Party to manage and conduct
its insurance matters in an orderly fashion. Retail Ventures, at the request of
DSW, shall cooperate with and use commercially reasonable efforts to assist DSW
in recovering Insurance Proceeds under the Retail Ventures Insurance Policies
for claims relating to the DSW Business, the assets of DSW or DSW Liabilities,
whether such claims arise under any Contract or agreement, by operation of law
or otherwise, existing or arising from any past acts or events occurring or
failing to occur or alleged to have occurred or to have failed to occur or any
conditions existing or alleged to have existed before the Offering Date, on the
Offering Date or during the Insurance Transition Period, and Retail Ventures
shall promptly pay any such recovered Insurance Proceeds to DSW. Neither Retail
Ventures nor DSW, nor any of their respective Subsidiaries, shall take any
action which would intentionally jeopardize or otherwise interfere with the
other Party's ability to collect any proceeds payable pursuant to any Insurance
Policy. Except as otherwise contemplated by this Agreement or any other
agreement between the Parties, after the Offering Date, neither Retail Ventures
nor DSW (and each Party shall ensure that no affiliate of such Party), without
the consent of the other Party, shall provide any insurance carrier with a
release, or amend, modify or waive any rights under any such policy or
agreement, if such release, amendment, modification or waiver would adversely
affect any rights or potential rights of the other Party (or its Subsidiary)
thereunder. However, nothing in this Section 6.02 shall (A) preclude any Retail
Ventures Entity or any DSW Entity from presenting any claim or from exhausting
any policy limit, (B) require any Retail Ventures Entity or any DSW Entity to
pay any premium or other amount or to incur any Liability, or (C) require any
Retail Ventures Entity or DSW Entity to renew, extend or continue any policy in
force.
SECTION 6.03. DSW Insurance Coverage After the Insurance Transition
Period. From and after expiration of the Insurance Transition Period, DSW shall
be responsible for obtaining and maintaining insurance programs for the DSW
Entities' risk of loss and such insurance arrangements shall be separate and
apart from Retail Ventures' insurance programs.
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SECTION 6.04. Deductibles and Self-Insured Obligations. DSW shall
reimburse Retail Ventures for all amounts necessary to exhaust or otherwise to
satisfy all applicable self-insured retentions, amounts for fronted policies,
deductibles and retrospective premium adjustments and similar amounts not
covered by Insurance Policies in connection with DSW Liabilities and Insured DSW
Liabilities to the extent that Retail Ventures is required to pay any such
amounts.
SECTION 6.05. Procedures with Respect to Insured DSW Liabilities.
(a) DSW shall reimburse Retail Ventures for all amounts incurred to pursue
insurance recoveries from Insurance Policies for Insured DSW Liabilities.
(b) The defense of claims, suits or actions giving rise to potential or
actual Insured DSW Liabilities shall be managed (in conjunction with Retail
Ventures' insurers, as appropriate) by the Party that would have had
responsibility for managing such claims, suits or actions had such Insured DSW
Liabilities been DSW Liabilities.
SECTION 6.06. Insufficient Limits of Liability for Retail Ventures
Liabilities and DSW Liabilities.
(a) In the event that there are insufficient limits of liability available
under Retail Ventures' Insurance Policies in effect prior to the Distribution
Date to cover the Liabilities of Retail Ventures and/or DSW that would otherwise
be covered by such Insurance Policies, then to the extent that other insurance
is not available to Retail Ventures and/or DSW for such Liabilities an
adjustment will be made in accordance with the following procedures:
(i) To the extent the Parties are able to specifically quantify and verify
the actual Liabilities incurred by each Party to the exclusion of the
other Party, each Party will be allocated an amount equal to the product
of (A) the actual Liabilities incurred by such Party, divided by the total
actual Liabilities incurred by the Parties, times (B) the lesser of (1)
the available limits of liability under Retail Ventures' Insurance
Policies in effect prior to the Distribution Date net of uncollectible
amounts attributable to insurer insolvencies and (2) the proceeds received
from Retail Ventures' Insurance Policies if the Liabilities are the
subject of disputed coverage claims and, following consultation with each
other, Retail Ventures and/or DSW agree to accept less than full policy
limits from Retail Ventures' and DSW's insurers (such available limits
and/or proceeds being referred to as the "Coverage Amount").
(ii) To the extent that the Parties are unable to specifically quantify
and verify any such Liabilities or any part of such Liabilities to each
Party (to the exclusion of the other Party), each Party will be allocated
an amount equal to their shared percentage of the Coverage Amount.
(iii) A Party who receives more than its share of the Coverage Amount (the
"Overallocated Party") agrees to reimburse the other Party (the
"Underallocated Party") to the extent that the Liabilities of the
Underallocated Party that would have been covered under such Insurance
Policies is less than the Underallocated Party's share of the Coverage
Amount.
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(iv) This Section 6.06 shall terminate ten (10) years following the end of
the Insurance Transition Period, unless terminated sooner in accordance
with the provisions of this Agreement.
SECTION 6.07. Cooperation. Retail Ventures and DSW shall cooperate with
each other in all respects, and shall execute any additional documents which are
reasonably necessary, to effectuate the provisions of this Article VI.
SECTION 6.08. No Assignment or Waiver. This Agreement shall not be
considered as an attempted assignment of any policy of insurance or as a
contract of insurance and shall not be construed to waive any right or remedy of
any Retail Ventures Entity in respect of any Insurance Policy or any other
contract or policy of insurance.
SECTION 6.09. No Liability. DSW does hereby, for itself and as agent for
each other DSW Entity, agree that no Retail Ventures Entity or Retail Ventures
Indemnified Person shall have any Liability whatsoever as a result of the
insurance policies and practices of Retail Ventures and its Subsidiaries as in
effect at any time prior to the end of the Insurance Transition Period,
including as a result of the level or scope of any such insurance, the
creditworthiness of any insurance carrier, the terms and conditions of any
policy, or the adequacy or timeliness of any notice to any insurance carrier
with respect to any claim or potential claim or otherwise.
SECTION 6.10. Additional or Alternate Insurance. Notwithstanding any other
provision of this Agreement, during the Insurance Transition Period, Retail
Ventures and DSW shall work together to evaluate insurance options and secure
additional or alternate insurance for DSW and/or Retail Ventures if desired by
and cost effective for DSW and Retail Ventures. Nothing in this Agreement shall
be deemed to restrict any DSW Entity from acquiring at its own expense any other
Insurance Policy in respect of any Liabilities or covering any period.
SECTION 6.11. Forbearance and Prior Insurance Coverage.
(a) From and after the date of this Agreement, Retail Ventures shall not,
and shall cause each of its Subsidiaries not to, take or fail to take any action
if such action or inaction, as the case may be, would adversely affect the
applicability of any insurance in effect on the effective date of this Agreement
that covers all or any part of the assets, liabilities, business or employees of
any DSW Entity with respect to events occurring prior to the Offering Date
("Applicable Insurance"), it being understood that in no event shall any Retail
Venture Entity be obligated to pay premiums with respect to periods after the
Offering Date in respect of Applicable Insurance.
(b) Retail Ventures agrees that, from and after the Offering Date, all
Applicable Insurance directly or indirectly applicable to any assets,
liabilities, business or employees of any DSW Entity shall be for the benefit of
the DSW Entity, it being understood that such Applicable Insurance shall also be
for the benefit of the Retail Venture Entities to the extent directly or
indirectly applicable to any assets, liabilities, business or employees of the
Retail Venture Entities. Without limiting the generality of the foregoing, upon
DSW's reasonable request, Retail Ventures shall use its reasonable efforts to
modify, amend or assign all Applicable Insurance policies and arrangements so
that DSW is the direct beneficiary of such Applicable Insurance
17
with all rights to enforce, obtain the benefit of and take all other action in
respect of such Applicable Insurance; provided that, if the modifications,
amendments or assignments contemplated by this Section 6.11(b) are not
permissible, Retail Ventures shall, and shall cause each of its Subsidiaries to,
use its reasonable efforts to enter into such other arrangements as DSW may
reasonably request to ensure that DSW and the Subsidiaries of DSW are entitled
to the benefit (to the fullest extent set forth in the relevant policies and
arrangements) of any Applicable Insurance.
SECTION 6.12. Further Agreements. The Parties acknowledge that they intend
to allocate financial obligations without violating any laws regarding
insurance, self-insurance or other financial responsibility. If it is determined
that any action undertaken pursuant to this Agreement or any related agreement
is violative of any insurance, self-insurance or related financial
responsibility law or regulation, the Parties agree to work together to do
whatever is necessary to comply with such law or regulation while trying to
accomplish, as much as possible, the allocation of financial obligations as
intended in this Agreement or any such related agreement.
ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.01. Annual Budget. Prior to December 31, 2005 and each
subsequent year so long as this Agreement is in effect, the Parties agree to
work together and to cooperate with each other in good faith to develop an
annual budget ("Annual Budget") to reflect the estimated annual Service Costs to
each Party for each of the Services to be provided and/or procured by the other
Party as contemplated by this Agreement. In the budgeting process, the Parties
agree to use their reasonable efforts to harmonize the interests of the Parties
to have quality services at affordable costs and to recover the costs of
performing and/or procuring the Services. On or before December 31 of each
calendar year, an Annual Budget for the next calendar year shall be submitted to
the respective Controller or Chief Financial Officer of each of the Parties for
review and approval. Such approval shall constitute approval of the Annual
Budget by the Party represented by such person. During the months of July and
January of each year so long as this Agreement is in effect, the Parties shall
conduct a semi-annual reconciliation of actual Service Costs to budgeted Service
Costs to determine if there are any significant discrepancies between such costs
and, if so, whether the payments for services should be adjusted accordingly.
SECTION 7.02. Employment Matters. During the Initial Term, neither Party
shall, directly or indirectly, solicit active employees of the other Party
without the other Party's consent; provided that each Party agrees to give such
consent if such Party believes, in good faith, that its consent is necessary to
avoid the resignation of an employee from one Party that the other Party would
like to employ.
SECTION 7.03. Shared Expenses Agreement. The Parties agree to share
certain costs and expenses related to the store facilities located at Four Union
Square, New York, New York, pursuant to the terms and conditions set forth in
the Shared Expenses Agreement between the Parties dated of even date herewith
(the "Shared Expenses Agreement").
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Prior Agreements. In the event there is any conflict between
the provisions of this Agreement, on the one hand, and the provisions of prior
services agreements among any Retail Venture Entity and any DSW Entity (the
"Prior Agreements"), on the other hand, the provisions of this Agreement shall
govern and such provisions in the Prior Agreements are deemed to be amended so
as to conform with this Agreement.
SECTION 8.02. Other Agreements. In the event there is any inconsistency
between the provisions of this Agreement and the respective provisions of the
Master Separation Agreement, the Tax Separation Agreement and the Exchange
Agreement, respectively, the respective provisions of the Master Separation
Agreement, the Tax Separation Agreement and the Exchange Agreement shall govern.
SECTION 8.03. Future Litigation and Other Proceedings. In the event that
DSW (or any of its Subsidiaries or any of its or their respective officers or
directors) or Retail Ventures (or any of its Subsidiaries or any of its or their
respective officers or directors) at any time after the date hereof initiates or
becomes subject to any litigation or other proceedings before any governmental
authority or arbitration panel with respect to which the Parties have no prior
agreements (as to indemnification or otherwise), the Party (and its Subsidiaries
and its and their respective officers and directors) that has not initiated and
is not subject to such litigation or other proceedings shall comply, at the
other Party's expense, with any reasonable requests by the other Party for
assistance in connection with such litigation or other proceedings (including by
way of provision of information and making available of associates or employees
as witnesses). In the event that DSW (or any of its Subsidiaries or any of its
or their respective officers or directors) and Retail Ventures (or any of its
Subsidiaries or any of its or their respective officers or directors) at any
time after the date hereof initiate or become subject to any litigation or other
proceedings before any governmental authority or arbitration panel with respect
to which the Parties have no prior agreements (as to indemnification or
otherwise), each Party (and its officers and directors) shall, at their own
expense, coordinate their strategies and actions with respect to such litigation
or other proceedings to the extent such coordination would not be detrimental to
their respective interests and shall comply, at the expense of the requesting
Party, with any reasonable requests of the other Party for assistance in
connection therewith (including by way of provision of information and making
available of employees as witnesses).
SECTION 8.04. No Agency. Nothing in this Agreement shall constitute or be
deemed to constitute a partnership or joint venture between the Parties hereto
or, except to the extent provided in Section 4.02, constitute or be deemed to
constitute any Party the agent or employee of the other Party for any purpose
whatsoever, and neither Party shall have authority or power to bind the other
Party or to contract in the name of, or create a liability against, the other
Party in any way or for any purpose.
SECTION 8.05. Subcontractors. Either Retail Ventures or DSW may hire or
engage one or more subcontractors to perform all or any of its obligations under
this Agreement; provided that, subject to Section 4.03, Retail Ventures and DSW,
as the case may be, shall in all
19
cases remain primarily responsible for all obligations undertaken by it in this
Agreement with respect to the scope, quality and nature of the Services provided
to the other Party and, provided further, that, in each case, the use of a
subcontractor to perform such Party's obligations would not substantially
increase the costs to the other Party without the prior written consent of the
other Party.
SECTION 8.06. Force Majeure.
(a) For purposes of this Section 8.06, "Force Majeure" means an event
beyond the control of either Party, which by its nature could not have been
foreseen by such Party, or, if it could have been foreseen, was unavoidable, and
includes without limitation, acts of God, storms, floods, riots, fires,
sabotage, civil commotion or civil unrest, interference by civil or military
authorities, acts of war (declared or undeclared) and failure of energy sources.
(b) Without limiting the generality of Section 4.03, neither Party shall
be under any liability for failure to fulfill any obligation under this
Agreement, so long as and to the extent to which the fulfillment of such
obligation is prevented, frustrated, hindered, or delayed as a consequence of
circumstances of Force Majeure; provided that such Party shall have exercised
all commercially reasonable due diligence to minimize to the greatest extent
possible the effect of Force Majeure on its obligations hereunder.
(c) Promptly on becoming aware of Force Majeure causing a delay in
performance or preventing performance of any obligations imposed by this
Agreement (and termination of such delay), the Party affected shall give written
notice to the other Party giving details of the same, including particulars of
the actual and, if applicable, estimated continuing effects of such Force
Majeure on the obligations of the Party whose performance is prevented or
delayed. If such notice shall have been duly given, and actual delay resulting
from such Force Majeure shall be deemed not to be a breach of this Agreement,
the period for performance of the obligation to which it relates shall be
extended accordingly; provided that if Force Majeure results in the performance
of a Party being delayed by more than 60 days, the other Party shall have the
right to terminate this Agreement with respect to any Service affected by such
delay forthwith by written notice.
SECTION 8.07. Entire Agreement. This Agreement (including the Schedules
constituting a part of this Agreement) and any other writing signed by the
Parties that specifically references or is specifically related to this
Agreement constitute the entire agreement among the Parties with respect to the
subject matter hereof and supersede all prior agreements, understandings and
negotiations, both written and oral, between the Parties with respect to the
subject matter hereof. This Agreement is not intended to confer upon any Person
other than the Parties hereto any rights or remedies hereunder.
SECTION 8.08. Information. Subject to applicable law and privileges, each
Party hereto covenants with and agrees to provide to the other Party all
information regarding itself and transactions under this Agreement that the
other Party reasonably believes is required to comply with all applicable
federal, state, county and local laws, ordinances, regulations and codes,
including, but not limited to, securities laws and regulations.
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SECTION 8.09. Notices. Any notice, instruction, direction or demand under
the terms of this Agreement required to be in writing shall be duly given upon
delivery, if delivered by hand, facsimile transmission, or mail (with postage
prepaid), to the following addresses:
(a) If to DSW, to:
Xxxxx Xxxxxxx
DSW Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
(b) If to Retail Ventures, to:
Xxx XxXxxxx
Retail Ventures, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
or to such other addresses or telecopy numbers as may be specified by like
notice to the other Party.
SECTION 8.10. Governing Law. This Agreement shall be construed in
accordance with and governed by the substantive internal laws of the State of
Ohio, excluding its conflict of laws rules.
SECTION 8.11. Severability. If any terms or other provision of this
Agreement or the Schedules or exhibits hereto shall be determined by a court,
administrative agency or arbitrator to be invalid, illegal or unenforceable,
such invalidity or unenforceability shall not render the entire Agreement
invalid. Rather, this Agreement shall be construed as if not containing the
particular invalid, illegal or unenforceable provision, and all other provisions
of this Agreement shall nevertheless remain in full force and effect so long as
the economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to either Party. Upon such
determination that any term or other provision is invalid, illegal or
unenforceable, the Parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the Parties as closely as
possible in an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the fullest extent permitted under applicable law.
SECTION 8.12. Amendment. This Agreement may only be amended by a written
agreement executed by both Parties hereto.
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SECTION 8.13. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original and all of which, when
taken together, shall constitute one and the same agreement.
SECTION 8.14. Authority. Each of the Parties represent to the other Party
that (a) it has the corporate or other requisite power and authority to execute,
deliver and perform this Agreement, (b) the execution, delivery and performance
of this Agreement by it have been duly authorized by all necessary corporate or
other actions, (c) it has duly and validly executed and delivered this
Agreement, and (d) this Agreement is its legal, valid and binding obligation,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
22
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed by
their duly authorized representatives.
DSW INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: EVP, COO
RETAIL VENTURES, INC.
By: /s/ Xxxxx X. XxXxxxx
------------------------------
Name: Xxxxx X. XxXxxxx
Title: CFO
SCHEDULE I
TO
SHARED SERVICES AGREEMENT
DATED JANUARY 30, 2005
BETWEEN
RETAIL VENTURES, INC.
AND
DSW INC.
------------------
SERVICES TO BE PROVIDED BY RETAIL VENTURES, INC. AND RETAIL VENTURES
SERVICES, INC.
DESCRIPTION OF RETAIL VENTURES RETAIL VENTURES SERVICE COSTS OR
SERVICE BILLING METHODOLOGY TO DSW
1. GENERAL CORPORATE AND FINANCIAL
SERVICES:
(i) PAYROLL SERVICES (including Billing pro-rata based upon number
preparation and distribution of of DSW employee checks and Form W-2s
employee checks; payment of payroll issued by Retail Ventures. To be
taxes, garnishment and other billed weekly in arrears.
deductions to appropriate parties;
preparation and filing of employer
tax returns; and preparation of
annual W-2s for employees)
(ii) TREASURY SERVICES (including DSW to pay $1,000.00 per month and
cash management; processing and any stand-alone cash management
paying invoices and purchase orders; software and corresponding support
monthly consolidation of financial costs if added for DSW Services
statements; and preparation of checks only.
for vendor payment and employee
reimbursement)
(iii) Sox and AUDITING Fees Costs to be allocable based on
(including coordination of external sales.
audit services and assistance with
compliance with Xxxxxxxx-Xxxxx
requirements)
(iii) ACCOUNTS PAYABLE, GENERAL Overhead costs to be allocated based
LEDGER, SALES AUDIT, BUDGET SERVICES- on - time spent by associates, which
AND INVENTORY CONTROL. GENERAL LEDGER will be reviewed and determined
INCLUDES, BUT IS NOT LIMITED TO, annually.
PREPARATION OF QUARTERLY,
Sales Audit charges to include fees
1
DESCRIPTION OF RETAIL VENTURES RETAIL VENTURES SERVICE COSTS OR
SERVICE BILLING METHODOLOGY TO DSW
ANNUAL AND OTHER SEC REPORTS; associated with software agreements
ASSISTANCE WITH THE PREPARATION OF that support DSW Entities.
ANNUAL REPORT TO SHAREHOLDERS AND
EARNINGS RELEASES; AND PREPARATION OF
ERISA REPORTS.
(v) TAX SERVICES (including See Tax Separation Agreement between
preparation and filing of all DSW and Retail Ventures.
federal, state and local tax returns,
reports and other required filings;
coordination and management of tax
audits and other similar proceedings;
and assistance with tax planning, tax
strategy and compliance with the Tax
Separation Agreement)
(vii) Controller Services Cost to be shared by DSW and Xxxx
50/50 basis.
(viii) SSC Corporate Services Charges incurred on behalf of DSW
entities will be allocated to DSW.
Charges billed to other cost centers
listed in these Agreement Schedules
will be billed under the applicable
cost center's methodology. General,
unallocable charges to be allocated
based on Percent of Sales billing.
2. INFORMATION TECHNOLOGY (ALL COST Pass-Through Billing with respect to
CENTERS) costs directly related to DSW
Entities and Percent of Sales
Billing with respect to overhead and
Services shared by DSW Entities and
Retail Ventures Entities.
3. HUMAN RESOURCES (ALL COST CENTERS) Pass-Through Billing with respect to
costs directly related to DSW
Entities.
DSW to pay pro-rata share of
overhead costs per employee of DSW
Entities, subject to adjustment
semi-annually.
4. IMPORT MANAGEMENT AND COMPLIANCE Pass-Through Billing with respect to
costs directly related to DSW
Entities. Importing fees (including
U.S. Customs fees, Duties,
Commissions, Ocean Freight,
Excel/APL
2
DESCRIPTION OF RETAIL VENTURES RETAIL VENTURES SERVICE COSTS OR
SERVICE BILLING METHODOLOGY TO DSW
Logistic Carrier fees and other
associated expense) are allocated to
the businesses by invoice (which
historically is a one-to-one
relationship to container) to the
ratio of the container contents to
the whole containers/trailer.
DSW to pay 40% of the overhead
costs. The overhead allocation
percentage will be reviewed and
determined annually.
5. CHILDREN'S SHOE MERCHANDISING DSW to pay 33% of the total payroll
compensation of this department.
6. LEGAL SERVICES (including general General Counsel compensation to be
legal advice from in-house legal staff; shared by DSW and Retail Ventures on
preparation and review of SEC filings a 50/50 basis.
and proxy materials; assistance with
corporate resolutions and preparations Pass-Through Billing with respect to
for shareholders meetings; overseeing costs directly related to DSW
and managing legal policy and strategy Entities.
regarding litigation and regulatory
compliance) Department overhead costs and
general, unallocable professional
fees to be allocated based on
Percent of Sales Billing.
7. RISK MANAGEMENT (including management a) Insurance premium costs billed as
of insurance and workers compensation specified in Schedule III.
coverage; administration of claims
services; negotiation and acquisition of b) - Overhead costs are billed on
insurance coverages including, but not the weighted value of administrative
limited to, property and business time directed to DSW entities for
interruption, casualty (including (i) Workers' Compensation, (ii)
workers compensation), director and General Liability and (iii) Property
officer liability and other liability & All Other Lines combined with the
coverages) ratio of the number of claims that
are directly related to DSW Entities
to the total number of claims for
(i) Workers' Compensation, (ii)
General Liability and (iii) Property
& All Other Lines. -
8. LOSS PREVENTION (INCLUDING INTERNAL Overhead costs to be allocated based
AUDIT) on Percent of Sales Billing.
3
DESCRIPTION OF RETAIL VENTURES RETAIL VENTURES SERVICE COSTS OR
SERVICE BILLING METHODOLOGY TO DSW
9. RVI CORPORATE EXECUTIVE OVERHEAD DSW will pay 35% of the total
ALLOWANCE overheads of this cost center that
are associated with the CFO of RVI.
It will exclude the costs associated
with the CEO of RVI.
10. DISTRIBUTION SERVICES DSW will pay 10% of total overhead
costs for this department.
11. DEPRECIATION OF IT OFFICE EQUIPMENT Service fee charged to DSW for
LOCATED AT THE WESTERVILLE ROAD OFFICE depreciation expenses associated
FACILITY (COST CENTER 01109) with IT office equipment located at
the Westerville Road Office. The
billable charge for depreciation
expenses is based on Percent of
Sales Billing
12. LETTERS OF CREDIT ASSOCIATED WITH DSW to be billed 15% of costs
WORKERS' COMPENSATION AND IBNR associated with letters of credit
for workers compensation and IBNR.
4
SCHEDULE II
TO
SHARED SERVICES AGREEMENT
DATED JANUARY 30, 2005
BETWEEN
RETAIL VENTURES, INC.
AND
DSW INC.
SERVICES TO BE PROVIDED BY DSW INC.
DESCRIPTION OF DSW SERVICE DSW SERVICE COSTS OR BILLING
METHODOLOGY TO RETAIL VENTURES
1. SHOE MERCHANDISING:
(i) PLANNING AND ALLOCATION Value City to pay $20,000 per month.
SUPPORT for Value City
Department Stores, LLC
2. DISTRIBUTION
(i) DISTRIBUTION SERVICES AND (i) The fixed distribution costs to be
TRANSPORTATION MANAGEMENT for charged to RVI are based on the actual
Value City Department Stores, monthly fixed costs incurred Filene's
LLC and Basement at the 0000 Xxxx 0xx Xxxxxx
Distribution Center (and exclude fixed
costs associated with the Offices at
the 0xx Xxxxxx Location) divided by the
maximum case storage capacity of the
0xx Xxxxxx Distribution Center times
the average number of cases stored on
behalf of Value City at the 5th Avenue
Distribution Center for that month.
Fixed costs incurred at the 0xx Xxxxxx
Location that cannot be directly
identified with either the Distribution
Center or the Offices will be allocated
between the Distribution Center and
Offices by the space occupied by each
in terms of square footage. -
(ii) The variable costs to be charged
to RVI are based on the actual monthly
variable costs incurred at the 0000
Xxxx 0xx Xxxxxx Distribution Center
times the percentage of handling costs
associated
1
DESCRIPTION OF DSW SERVICE DSW SERVICE COSTS OR BILLING
METHODOLOGY TO RETAIL VENTURES
with Value City shoes to the total
handling costs incurred for all shoes
at the 5th Avenue Distribution Center
for that month. Handling cost
categories include Maintenance,
Picking/Putaway, Quality Control,
Receiving, Crossdock Receiving and
Shipping, which are based on actual
prior fiscal year costs per case, and
Solids, Store Stock and Tagging, which
are based on actual prior fiscal year
costs per pair. The relevant per case
and pair costs are calculated
separately for (i) Value City and (ii)
DSW, Steinmart, Gordmans and Filene's
Basement and are based on actual prior
year activity for each handling cost
category. Handling costs are calculated
on the relevant cost per case or pair
times the actual cases or pairs
handled for each relevant category for
that month. Variable costs include
salaries and associated payroll
expenses for exempt and non-exempt
personnel employed at the 5th Avenue
Distribution Center, Rent Equipment,
Repairs & Maintenance, Utilities and
Supplies. They exclude Dues &
Subscriptions, Janitorial Services,
Telephone and Travel.
(iii) Transportation Costs- both
inbound and outbound transportation
costs (inclusive of wages, associated
payroll costs, occupancy expenses and
operating expenses) are allocated to
the respective businesses according to
current month activity, which is based
on merchandise receipts as determined
by dollar value.
(iv) Professional fees to be billed on
the weighted average cost per case of
the pools that Value City Shoes
utilizes.
2
DESCRIPTION OF DSW SERVICE DSW SERVICE COSTS OR BILLING
METHODOLOGY TO RETAIL VENTURES
3. REAL ESTATE/PROPERTY MANAGEMENT Overhead costs to be allocated based on
time spent by associates, which will be
reviewed and determined annually.
Related outside contractors/consultant
costs, including legal services,
allocated based on pass-through
billing.
4. STORE DESIGN AND CONSTRUCTION A 5% service fee based on total
MANAGEMENT development costs per project, plus
expenses incurred by DSW on RVI
projects. Overhead costs allocated on
the proportion of RVI projects to total
projects. (extraordinary projects to be
determined on a project by project
basis). Standard American Institute of
Architects (AIA) form of "Agreement
between Owner and Design/Builder" to be
used as design and construction
management agreement between DSW and
Retail Ventures.
3
SCHEDULE III
TO
SHARED SERVICES AGREEMENT
DATED JANUARY 30, 2005
BETWEEN
RETAIL VENTURES, INC.
AND
DSW INC.
_____________________________
INSURANCE POLICIES MAINTAINED BY RETAIL VENTURES
The Insurance Polices described in Part (a) below shall be maintained by
Retail Ventures, Inc. ("Retail Ventures") on behalf of DSW Inc. ("DSW") and its
Subsidiaries pursuant to the terms of the Shared Services Agreement between
Retail Ventures and DSW dated January 30, 2005, of which this Schedule is a
part. The insurance premiums related to such policies to be paid by DSW, or for
which Retail Ventures shall be reimbursed by DSW, are set forth or described in
Part (b) of this Schedule. Capitalized terms not otherwise defined in this
Schedule shall have the respective meanings assigned to them in the Shared
Services Agreement.
(a) LIST OF INSURANCE POLICIES
(i) Liability:
Steadfast Insurance Co. #SCO3822186-02 - primary - $1MM/occurrence
XL Insurance Co. #US00007102LI04A - umbrella - $25MM/occ/agg
Ohio Casualty Co. #ECO(05)52976611, excess GL - $25MM/occ/agg
American Guarantee # AEC5086837500- excess GL - $50MM/occ/agg
Liberty Mutual Ins. #LQ1-B71-078764032 - excess GL - $50MM/occ/agg
ACE Ins. Group #HXW776336 - excess GL - $25MM/occ/agg Great
American Ins. #TUE357977102 - excess GL - $25MM/occ/agg
(ii) Property
FM Global Insurance #NB918 - $1,000,000,000 blanket limit
Ace/Westchester #I20651258002 - excess flood - $10MM Great
American #CPP5385581 & #ACG4285581 - excess flood - $5MM
Arrowhead Group #303219EQ1 - excess earthquake - $3MM
North Shore Mgmt. #NSM24310 - excess earthquake - $12MM
FM Global #NB918 - Xxxxxxx primary earthquake - $1MM
1
(iii) Automobile
St. Xxxx Travelers #TC2JCAP393K338 - $2MM combined single limit
(iv) Cargo
Lloyd's #CD044747 - primary cargo - $10MM/conveyance
Lloyd's #CD044765 - excess cargo - $5MM/conveyance
(v) Worker Compensation
St. Xxxx Travelers #TC2JUB466K1644 - statutory limits St. Xxxx
Travelers #TRJUB466K1656 - retro AZ, MA & WI only Ohio -
Self-insured under SI20005342 West Virginia - State Fund
(vi) Director and Officer Liability Insurance
Chubb #___ - primary - $10MM
XL Specialty #___ - excess D&O - $10MM
AWAC US #___ - excess D&O - $10MM
RSUI #___ - excess D&O - $10MM
AXIS #___ - excess D&O - $10MM
Arch Insurance Co. #___ - excess D&O - $10MM
Houston Casualty #___ - excess D&O - $10MM
Great American #___ - excess D&O - $10MM
Liberty Mutual #___ - excess D&O - $10MM
National Union (AIG) #___ - excess D&O - $10MM
XL Specialty #___ - Side A coverage - $10MM
(vii) Executive Protection Insurance
National Union (AIG) #006082944 - crime - $10MM
National Union (AIG) #647-5648 - special crime (K&R) - $10MM
(viii) Other
Fireman's Fund #MXI97900076 - motor truck cargo - $250K/vehicle
XL Insurance #XLPUN1502904 - excess punitives - $25MM agg
Magna Carta #MCPD201467 - excess punitives - $25MM agg
(b) CALCULATION OF PREMIUM
(i) DSW shall promptly pay or reimburse Retail Ventures 100% of premium
expenses, deductibles or retention amounts Retail Ventures may incur in
connection with Insurance Policies that relate solely to the DSW Business.
2
(ii) DSW shall promptly pay or reimburse Retail Ventures 50% of premium
expenses, deductibles or retention amounts Retail Ventures may incur in
connection with Director and Officer Liability Insurance and Executive
Protection Insurance.
(iii) DSW shall promptly pay or reimburse Retail Ventures its
proportionate share of premium expenses, deductibles or retention amounts
Retail Ventures may incur in connection with Insurance Policies that
relate the Retail Ventures Business and the DSW Business. The "Retail
Ventures Business" means any business of Retail Ventures other than the
DSW Business. DSW's proportionate will be calculated as follows:
(IV) LIABILITY INSURANCE costs shall be prorated based on the ratio of
DSW's sales and loss percentage as compared to total sales and loss.
["LOSS PERCENTAGE" IS DEFINED AS TOTAL INCURRED CLAIMS COST FOR THE PRIOR
INSURANCE POLICY TERM. "INCURRED CLAIMS COST" EQUALS RESERVES PLUS PAID
AMOUNTS.]
(V) PROPERTY INSURANCE costs shall be prorated based on the ratio of the
value of DSW property covered by the insurance policy as compared to the
total value of all property covered by the insurance policy. ["VALUE OF
PROPERTY" IS DEFINED AS RETAIL INVENTORY, FIXTURES, LEASEHOLDS, REAL
PROPERTY AND BUSINESS INTERRUPTION.]
(VI) AUTOMOBILE INSURANCE costs shall be charged on each insured vehicle
owned or leased by DSW which is covered by the insurance policy.
(VII) CARGO INSURANCE costs shall be prorated based on the ratio of the
duties paid for DSW imports covered by the insurance policy as compared to
the total duties paid for all imports covered by the insurance policy.
(VIII) WORKERS COMPENSATION costs shall be prorated based on an actual per
state rate against projected payrolls plus estimated claims cost per
location.
(IX) EXECUTIVE PROTECTION AND OTHERS--Executive Protection Insurance (or
crime) and other costs shall be prorated based on the ratio of sales for
DSW as compared to the total sales covered by the policy.
3
