EXHIBIT 10.1
EXECUTION COPY
TRANSITION SERVICES AGREEMENT
This Transition Services Agreement (this "Agreement") entered into as
of November 29, 2003, is by and between Sears, Xxxxxxx and Co. ("Seller"), a New
York corporation, and TBC Corporation ("Buyer"), a Delaware corporation.
RECITALS
WHEREAS, pursuant to a Stock Purchase Agreement, dated as of September
21, 2003 (the "Stock Purchase Agreement"), by and between Seller and Buyer,
Buyer will purchase all of the outstanding shares of common stock of NTW
Incorporated (the "Company"), a wholly owned subsidiary of Seller (the
"Acquisition");
WHEREAS, in connection with the Acquisition, Buyer desires to obtain
from Seller and certain of its Affiliates certain transition services related to
the Business; and
WHEREAS, it is a condition to the closing of the transactions
contemplated by the Stock Purchase Agreement (the "Closing") that Seller and
Buyer enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements set forth in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement agree as follows:
ARTICLE I
TRANSITION SERVICES
1.01 Services to be Provided by Seller. Seller shall provide to the
Company transition services in accordance with the terms, limitations and
conditions set forth in this Agreement (the "Transition Services"). The
Transition Services shall consist of all services listed in Exhibit A. In
addition, Buyer may request that Seller provide to the Company other services
(the "Other Services") of a type previously furnished by Seller to the Business.
Except as set forth in Exhibit A, Seller shall have the right to perform or not
perform such Other Services in its sole discretion. The Other Services shall be
furnished at a cost consistent with the amount allocated to the Business by
Seller for the Other Services immediately prior to the Closing, subject to the
terms and conditions of this Agreement.
1.02 Term. Unless earlier terminated pursuant to the terms of this
Agreement, the term of this Agreement shall commence on the date of the Closing
and continue thereafter for six (6) months; provided that Buyer may renew the
term of this Agreement once for a period of up to three (3) additional months by
providing Seller written notice therefor at least thirty (30) days prior to the
original expiration date of this Agreement. The date on which this Agreement
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expires or terminates shall be deemed the "Expiration Date". Subject to the
terms and conditions of Exhibit A, Buyer shall use reasonable efforts to assume
responsibility for such Transition Services as soon as practicable. Except as
specified in Exhibit A, no Transition Service shall be provided by Seller more
than nine (9) months after the Closing. As Buyer transfers each NTB Store (as
defined in the Stock Purchase Agreement) from Seller's point of sale system
("TPOS") to Buyer's systems, Seller shall have no further obligation to provide
any Transition Services for that NTB Store that are related to the use of TPOS
in the NTB Store (e.g., store Intranet, e-mail and other systems support, store
financial reporting, store-based Kansas City commercial credit activity, buying
and inventory replenishment, etc.) ("Store Based Transition Services") for that
NTB Store, except for reports, file extracts, and the like needed by that NTB
Store to complete the conversion to Buyer's systems.
1.03 Quantity and Nature of Service. Unless otherwise agreed by the
parties in writing, Seller shall perform the Transition Services with no less
than substantially the same degree of care, timeliness and diligence and using
substantially the same business procedures and policies, standards of care and
internal controls, including loss prevention controls, consistent with those
used by Seller in providing the Transition Services to the Business prior to the
Closing. Seller will use commercially reasonable efforts to resolve any material
deficiencies in its performance of the Transition Services as to which Seller is
notified by Buyer. Except as specified in Exhibit A, the parties do not intend
this Agreement to change, in any material respect, the type, quality, timeliness
or manner of performance of any Transition Services from those provided by
Seller to the Business prior to the Closing. There will be no material change in
the scope of the Transition Services without the mutual agreement of the parties
and appropriate adjustments to the charges for such Transition Services. Buyer
and the Company shall use the Transition Services for substantially the same
purposes and in substantially the same manner as the Business used such services
prior to the Closing and for no other purposes and in no other manner. Buyer and
the Company are not permitted to resell any Transition Service or otherwise use
the Transition Services in any way other than in connection with the conduct of
the Business by the Company in the ordinary course of Business consistent with
past practice.
1.04 Transitional Nature of Services. The Transition Services are
transitional and temporary in nature and will be furnished by Seller solely for
the purpose of facilitating the transition of the Business to Buyer during the
term of this Agreement. Buyer understands that Seller is not in the business of
providing Transition Services to third parties and has no interest in continuing
this Agreement beyond the applicable Expiration Date relating to such Transition
Services. The applicable Expiration Date relating to any Transition Services
will not be extended without the prior written consent of Seller, which consent
may be withheld by Seller in its sole and absolute discretion. Any extension of
the applicable Expiration Date relating to any Transition Services will include
a significant increase in fees and other payments to Seller.
1.05 Use of Affiliates and Third Parties. Seller will be entitled
without notice to Buyer to use affiliates or retain third parties to provide any
or all of the Transition Services and Other Services; provided, however, that
Seller's use of non-affiliated third parties shall not be materially different
from Seller's use of third parties to provide services to the SAC Stores unless
such difference results from Seller's inability to obtain, on commercially
reasonable terms, the consent of any third party used by Seller to perform
services for the Business prior to the Closing
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Date to Seller's use of such third party to perform Transition Services or Other
Services. Such use of affiliates or retention of third parties shall not relieve
Seller of any of its obligations under this Agreement.
1.06 Assets of the Business. During the term of this Agreement and at
no charge, Buyer agrees that (i) no assets of the Company that are necessary for
Seller to provide the Transition Services or Other Services will be moved,
relocated or disabled and (ii) Seller may use, at no charge, all such assets of
the Company that are necessary for Seller to provide the Transition Services or
Other Services.
1.07 Review and Confirmation. Subject to resource availability, Seller
shall use commercially reasonable efforts to assist Buyer and its
representatives in reviewing and confirming the accuracy of disbursements made
and information generated by Seller in the performance of the Transition
Services and any Other Services. Subject to resource availability, Seller shall
also use commercially reasonable efforts to assist Buyer to understand, utilize
and further process any information or materials generated by Seller pursuant to
this Agreement. Buyer shall reimburse Seller for any costs or expenses incurred
by Seller pursuant to this Section to the extent that such costs or expenses are
beyond the scope of the Transition Services or Other Services.
1.08 Compliance with Law. Nothing in this Agreement shall require
Seller to violate any federal, state, local or common law or regulation.
1.09 Virtual Data Room. Seller shall promptly after the Closing Date
provide to Buyer CD-ROMs with the contents of the Citigroup virtual data room
assembled in connection with the transactions contemplated by the Stock Purchase
Agreement.
ARTICLE II
FEES AND PAYMENT
2.01 Fees and Expenses.
(a) The fees listed under the "Fees to Seller" sections
in Exhibit A for Transition Services relating to Information Systems,
Human Resources, Accounts Payable, Accounting and Financial Reporting,
and Kansas City Commercial Credit (collectively, the "Core Services")
total $5,800,000 on an annual basis, or $483,333 per fiscal month of
Seller, or $2,148 for each of the 225 NTB Stores transferred to Buyer
at the Closing. Buyer will pay Seller monthly: (i) for the Core
Services, a fee equal to $2,148 per month per NTB Store that, on the
first day of that fiscal month of Seller, had not been transferred to
Buyer's systems and services; (ii) the other fees and amounts specified
in Exhibit A; and (iii) any fees associated with the provision of Other
Services (collectively, the "Fees"). Except as set forth in Exhibit A,
the Fees do not include personnel time, costs or expenses relating to
or arising from the actual transition of the Company's operations to
Buyer, including conversion of data and information to Buyer's systems,
for which Buyer will be obligated to pay Seller if Buyer requests that
Seller assist Buyer in such transition.
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(b) In addition to the Fees, Buyer will, subject to the
limitations hereinafter set forth, reimburse Seller for all
out-of-pocket expenses incurred in its performance of the Transition
Services and Other Services or, if directed by Seller, pay directly any
third parties providing goods or services to or for the benefit of the
Company (collectively, the "Expenses"). The obligation of Buyer to
reimburse Seller for Expenses is subject to the following limitations:
(i) Buyer shall be obligated to reimburse Seller only for those
Expenses which, in accordance with Seller's policies and practices in
effect prior to the Closing, would have been allocated to the Business
apart from and in addition to the Fees otherwise allocated to the
Business; (ii) with respect to any Expenses in excess of $10,000, Buyer
shall be obligated to reimburse Seller only if Seller shall have given
to Buyer at least 10 days' advance written notice of Seller's intention
to incur such Expense; and (iii) in no event shall Buyer be responsible
for reimbursing Seller for any costs incurred by Seller to enable
Seller to provide the Transition Services to Buyer without violating
any of Seller's agreements with its vendors.
2.02 Payment. Seller will invoice Buyer for the Fees and Expenses in
arrears within six (6) business days after Seller's fiscal month end during
which the Fees and Expenses are incurred. Buyer will pay all Fees and Expenses
within 48 hours after receipt of Seller's invoice to Buyer. Unless otherwise
mutually agreed in writing, all Fees and Expenses will be payable by Buyer
through electronic transfer of immediately available funds to a bank account
designated by Seller from time to time. Any portion of an amount due to Seller
not paid on its respective due date shall bear interest at the rate of 12% per
annum from the due date until paid in full. Notwithstanding the foregoing, if
the amount due to Seller is disputed by Buyer in good faith and Seller receives
prompt written notice of such dispute, late charges shall not begin to accrue
until the dispute is settled. In addition to the Fees and Expenses payable by
Buyer to Seller under this Agreement, Buyer shall pay any applicable taxes or
assessments, including without limitation any sales, use or excise taxes, which
may be levied or assessed by any government or other taxing authority in
connection with the provision by Seller of the Transition Services or Other
Services, or any receipts therefor, other than federal, state or local income
taxes (including both regular and alternative minimum taxes) or other federal,
state or local taxes based upon Seller's taxable income, alternative taxable
income or net income. All amounts due and payable by Buyer under this Agreement
shall be paid by Buyer to Seller at the address provided in the invoice, or at
such other place as Seller may from time to time designate in a written notice
to Buyer.
ARTICLE III
LIMITATIONS ON LIABILITY
3.01 DISCLAIMER. BUYER ACKNOWLEDGES THAT SELLER IS PROVIDING THE
TRANSITION SERVICES AND OTHER SERVICES CONTEMPLATED BY THIS AGREEMENT SOLELY AS
AN ACCOMMODATION TO THE TRANSITION OF THE COMPANY TO BUYER FOLLOWING THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THE STOCK PURCHASE AGREEMENT.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, ALL SERVICES AND GOODS PROVIDED
BY SELLER UNDER OR IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED ON AN "AS IS,
WHERE IS" BASIS, AND SELLER HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS
OF ANY NATURE WHATSOEVER WITH
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RESPECT TO BOTH SERVICES AND GOODS, WHETHER STATUTORY, ORAL, WRITTEN, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM COURSE OF DEALING
OR USAGE OF TRADE.
3.02 LIMITATION OF LIABILITY. SUBJECT TO THE EXCEPTION SET FORTH IN
SECTION 3.03, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SELLER'S
AND ITS AFFILIATES' LIABILITY FOR ALL CLAIMS OF ANY KIND (WHETHER IN CONTRACT,
WARRANTY, TORT OR OTHERWISE) ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT
SHALL NOT EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, $4,000,000. SUBJECT TO THE
EXCEPTION SET FORTH IN SECTION 3.03, IN NO EVENT SHALL SELLER OR ITS AFFILIATES
BE LIABLE TO BUYER OR COMPANY OR ANY THIRD PARTY FOR ANY LOST PROFITS OR OTHER
SIMILAR CONSEQUENTIAL DAMAGES, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSS OF
PROFITS OR DATA (PROVIDED THAT SELLER HAS MAINTAINED BACKUP DATA AS REQUIRED BY
THE TERMS OF THIS AGREEMENT) OR INTERRUPTION OF BUSINESS, WHETHER SUCH DAMAGES
OR LOSSES ARE ALLEGED IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR INDEMNITY, AND
EVEN IF SELLER OR ITS AFFILIATES WERE ADVISED OR AWARE OF THE LIKELIHOOD OF SUCH
DAMAGES OR LOSSES OCCURRING.
3.03 EXCEPTION. THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 3.02
SHALL NOT APPLY IN THE CASE OF ANY WILLFUL MISCONDUCT OR FRAUD BY SELLER.
3.04 Books and Records.
(a) Seller shall keep accurate books and records,
consistent with its customary accounting and business practices, which
relate directly to the performance of the Transition Services under
this Agreement. As part of its performance of services under this
Agreement, Seller shall, upon Buyer's request, provide Buyer reasonable
supporting documentation of all Seller charges (other than the fees for
services described in Section 2.01(a)) for providing services completed
and products sold to Buyer.
(b) During the period that Seller provides Accounts
Payable, Accounting and Financial Reporting transition services
("Accounting Transition Services") for any NTB Store, Seller shall with
respect to all the NTB Stores for which Seller then provides Accounting
Transition Services as a whole:
(i) Perform substantially the same control
procedures on the financial transactions and account balances
as were performed immediately prior to the Closing.
(ii) Exercise substantially the same level of
care in performing the control procedures on the financial
transactions and account balances as was exercised immediately
prior to the Closing.
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(iii) Promptly notify Buyer of any significant
change in the control procedures on the financial transactions
and account balances, or of any deficiency thereof as to which
Seller's manager of the Accounting Transition Services becomes
aware.
(iv) Provide substantially the same level of
service and support to the NTB Stores as was provided
immediately prior to the Closing including, without
limitation, responding to Buyer's inquiries related to point
of sale, financial and analysis.
(v) Provide access to Buyer, its consultants,
and/or Buyer's outside accounting firm to the underlying
records, analyses, account reconciliation and systems data
related to the Accounting Transition Services, including,
without limitation, the placement of one individual at the
Seller's Dallas Processing facility.
3.05 Mutual Cooperation. Seller and Buyer shall cooperate with each
other in connection with the performance of any Transition Service provided
under this Agreement, including, without limitation, developing reasonable
procedures necessary with respect to information sharing, transfer of data and
similar matters. Buyer shall provide Seller with current information concerning
its transition plans on a regular basis and Seller shall provide Buyer with such
information as is reasonably necessary to assist Buyer with such transition.
Buyer shall comply with Seller's security and confidentiality policies and
procedures and shall cooperate with Seller in investigating any security or
confidentiality breach or alleged security or confidentiality breach related to
the Transition Services or Other Services.
3.06 Confidentiality. The provisions of Section 5.12(b) of the Stock
Purchase Agreement are hereby incorporated by reference.
ARTICLE IV
DEFAULTS AND REMEDIES
4.01 Defaults. A party shall be deemed to be in default ("Default")
under this Agreement upon the occurrence of any one or more of the following
events with respect to it:
(a) Failure by such party to make any payment when due
under this Agreement if such failure continues for fifteen (15) days
after receipt of written notice thereof from the other party; or
(b) Failure to perform or observe any obligation or
condition of this Agreement to be performed or observed by such party
if such failure continues for twenty (20) business days (or such longer
period of time as is reasonably necessary to allow such party to so
perform or observe such obligation) after receipt of written notice
thereof is given by the other party; or
(c) The making of any general assignment or arrangement
for the benefit of creditors, the filing of a voluntary or involuntary
petition in bankruptcy by or against such party under any bankruptcy or
insolvency law or similar proceeding (unless, in the
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case of an involuntary filing against such party, the petition is
dismissed within 60 days), the appointment of a trustee or receiver or
the commencement of a similar proceeding to take possession of, or the
attachment or other judicial seizure of, substantially all of such
party's assets, or the taking by such party of any action in
furtherance of the foregoing.
4.02 Remedies. Following the occurrence of a Default by one party, the
other party may, at such party's option, terminate or suspend its obligations
under this Agreement. Such right of termination or suspension shall be in
addition to any other rights or remedies available at law or equity, all of
which shall be cumulative.
4.03 Effect of Termination. Upon total or partial termination of this
Agreement pursuant to its terms or otherwise, the following terms shall apply:
(a) Except as set forth in this Section 4.03, the rights
and obligations of each party under this Agreement shall terminate;
(b) The rights and obligations of the parties under
Article V (Indemnification) shall survive the termination of this
Agreement and shall remain in full force and effect notwithstanding
such termination;
(c) If any party shall have breached any provision of
this Agreement, whether such breach occurred before or after the
termination of this Agreement, such party shall remain after such
termination fully liable (subject to the limitations set forth in this
Agreement) for all losses, liabilities and other expenses suffered or
incurred by the other parties as a result of such breach;
(d) All amounts due and owing by either party hereunder
prior to termination of this Agreement shall be paid promptly;
(e) Upon total termination, all licenses granted by
Seller under this Agreement will terminate immediately, and Buyer will
not have the right to use any software licensed hereunder with any new
information systems or services; and
(f) Upon total termination, Buyer will within thirty (30)
days after termination, cease using and destroy, or at Seller's option
and cost, return to Seller, all copies of such software and related
documentation provided under this Agreement.
The total or partial termination of this Agreement pursuant to its terms or
otherwise shall not affect the rights of the parties under the Stock Purchase
Agreement except as set forth in the Stock Purchase Agreement.
ARTICLE V
INDEMNIFICATION
5.01 Indemnification. This Agreement is for the sole and exclusive
benefit of the parties, and it shall not be deemed to be for the direct or
indirect benefit of either party's customers or any other persons. Each party
shall indemnify and hold harmless the other party and the other party's
officers, directors, employees and agents against and from any liability,
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loss, damage, cost and expense (including reasonable attorneys' fees and costs
of litigation) arising out of or resulting from bodily injury or damage to
tangible personal property caused by the willful misconduct or gross negligence
of such party in performing its obligations under this Agreement. The
indemnification provided for in this Section 5.01 shall survive the termination
of this Agreement and the termination of any Transition Service provided
pursuant to this Agreement. Notwithstanding any other provision of this
Agreement, the employees, officers and directors of, and the consultants
retained by, each party to this Agreement shall not have any liability to the
other party, or to any Affiliate of the other party, under this Agreement or in
connection with the services to be provided under this Agreement.
5.02 Notification; Control. Procedures for indemnification shall be
those set forth in Article IX of the Stock Purchase Agreement.
ARTICLE VI
GENERAL PROVISIONS
6.01 Contact Person. Each of Seller and Buyer shall designate one or
more contact person(s) for all matters relating to this Agreement. Seller's
point-of-contact person will initially be Xxx Xxxxxxxxxx and Buyer's
point-of-contact person will initially be Xxxxxx X. Xxxxxx. Changes in either
party's point-of-contact person(s) shall be communicated to the other party not
less than 10 days prior to the effective date of such change. Seller and Buyer
shall cause the contact person at each of Seller and Buyer, as the case may be,
to dedicate the necessary time and effort to resolving any issues arising out of
the delivery of services under this Agreement.
6.02 Waiver of Compliance. Any failure of a party to comply with any
obligation, covenant, agreement or condition in this Agreement may be waived in
writing by the other party to this Agreement, but such waiver or failure to
insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
6.03 Title to Data. Buyer acknowledges that it will acquire no right,
title or interest (including any license rights or rights of use) in any
firmware or software that is owned or licensed by Seller by reason of the
Transition Services provided to Buyer under this Agreement. Except with respect
to the Business Records, each party agrees that all records, data, files, input,
materials and other information received or computed in connection with the
provision of services to such party under this Agreement are property of the
other party.
6.04 Amendment and Assignment. This Agreement may not be amended except
by an amendment signed by each party to this Agreement. Buyer's rights and
obligations under this Agreement may not be assigned (by operation of law or
otherwise) without Seller's express written consent, which shall not be
unreasonably withheld. Notwithstanding the foregoing, Buyer may assign its
rights and obligations under this Agreement to the Company or any other
Affiliate of Buyer. No such assignment shall, however, relieve Buyer of
responsibility for the performance of its obligations under this Agreement.
6.05 Notices. Except as otherwise expressly provided in this Agreement,
each party shall give the other party no less than 10 Business Days' prior
written notice with respect to
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matters that require such party's prior consultation and approval, and neither
party shall unreasonably delay required responses. Any notices or other
communications required or permitted under, or otherwise in connection with,
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered in person or upon confirmation of receipt when transmitted by
facsimile transmission or on receipt after dispatch by registered or certified
mail, postage prepaid, addressed as follows:
If to Seller: Sears, Xxxxxxx and Co.
0000 Xxxxxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to Buyer: TBC Corporation
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: President and Chief Executive Officer
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxx LLP
0000 Xxxxxxxxxx Xxxxx XX
Xxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
or such other address as the person to whom notice is to be given has furnished
in writing to the other parties. A notice of change in address shall not be
deemed to have been given until received by the addressee. The sending party
shall have the burden of proving receipt.
6.06 Interpretation. The descriptive headings of the Articles and
Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement. Terms defined in the Stock Purchase
Agreement and used in this Agreement, but not defined in this Agreement, have
the meanings given such terms in the Stock Purchase Agreement. In the event of
any conflict or inconsistency between the body of this Agreement and any Exhibit
to this Agreement, the body of this Agreement shall take precedence to the
extent of such conflict or inconsistency.
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6.07 No Third Party Rights. Except as provided in Section 5.01, this
Agreement is intended to be solely for the benefit of the parties to this
Agreement (or their permitted assignees) and is not intended to confer any
benefits upon, or create any rights in favor of, any person other than the
parties to this Agreement (or their permitted assignees).
6.08 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute a single instrument.
6.09 Severability. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions of this Agreement shall not be affected thereby, and there
shall be deemed substituted for the provision at issue a valid, legal and
enforceable provision as similar as possible to the provision at issue.
6.10 Entire Agreement. This Agreement sets forth the entire
understanding and agreement between the parties as to the matters covered in
this Agreement and supersedes and replaces any prior understanding, agreement or
statement of intent, in each case, written or oral, of any and every nature with
respect to such understanding, agreement or statement other than the Stock
Purchase Agreement and any other agreements executed in connection with the
Stock Purchase Agreement.
6.11 Force Majeure. Neither party shall be responsible to the other for
any delay in or failure of performance of its obligations under this Agreement
to the extent such delay or failure is attributable to any cause beyond its
reasonable control, including, without limitation, any act of God, fire,
terrorism, epidemic, accident, strike or other labor difficulties, war, embargo
or other governmental act, or riot. In the event that Seller's ability to
perform its obligations under this Agreement is affected by any such cause,
Seller shall be obligated to allocate its resources between the Sears Auto
Center stores (the "SAC Stores") and the NTB Stores in a manner which treats the
NTB Stores no worse than if they were SAC Stores.
6.12 Fair Construction. This Agreement shall be deemed to be the joint
work product of the parties to this Agreement without regard to the identity of
the draftsperson, and any rule of construction that a document shall be
interpreted or construed against the drafting party shall not be applicable.
6.13 No Agency. Except to the extent otherwise expressly provided in
this Agreement, nothing in this Agreement creates a relationship of agency,
partnership or employer/employee between Seller and Buyer, and it is the intent
and desire of the parties that the relationship be, and be construed as, that of
independent contracting parties and not as agents, partners, joint venturers or
a relationship of employer/employee.
6.14 Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE LAWS THAT MIGHT BE APPLICABLE UNDER CONFLICTS OF LAWS PRINCIPLES.
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(b) Each of the parties to this Agreement irrevocably and
unconditionally submits, for itself and its property, to the exclusive
jurisdiction of any New York state court or Federal court of the United
States of America, in either case sitting in the Borough of Manhattan,
New York, New York, and any appellate court to any thereof, in any
action or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby or for recognition or enforcement
of any judgment relating thereto, and each of the parties irrevocably
and unconditionally (i) agrees not to commence any such action or
proceeding except in such courts, (ii) agrees that any claim in respect
of any such action or proceeding may be heard and determined in such
New York state court or, to the extent permitted by law, in such
Federal court, (iii) waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter have to
the laying of venue of any such action or proceeding in any such New
York state or Federal court, and (iv) waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such New York state or
Federal court. Each of the parties to this Agreement agrees that a
final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. Each party to this Agreement
irrevocably consents to service of process in the manner provided for
notices in Section 6.05. Nothing in this Agreement shall affect the
right of any party to this Agreement to serve process in any other
manner permitted by law.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, IT IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE EITHER OF SUCH WAIVERS, (ii) IT UNDERSTANDS AND HAS CONSIDERED
THE IMPLICATIONS OF SUCH WAIVERS, (iii) IT MAKES SUCH WAIVERS
VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 6.14(c).
* * * * * * * * * * *
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Each of the parties to this Agreement has caused this Agreement to be
executed on its behalf by its duly authorized officer, all as of the day and
year first above written.
SEARS, XXXXXXX AND CO.
By:/s/X. XXXXXXX WILL
-------------------------------------------
Name: X. Xxxxxxx Will
Title: Vice President Business
Development
TBC CORPORATION
By:/s/XXXXXX X. XXXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
S-1
EXHIBIT A(1)
INFORMATION SYSTEMS
1. DESCRIPTION OF SERVICES
a. SYSTEMS INFORMATION (INPUTS).(2)
- Daily feeds providing Product Information, UPC codes and
key attributes driving point of sale (TPOS) system
functionality (CORE).
- Pricing Lookup Files, and Quantity on Hand in each NTB
Store, and On Order information updated daily, driven
through Price Management (PMI).
- Buyer will have the ability to adjust FEN/VEN levels for
NTB Stores in accordance with past practice, subject to
1(d) of the Supply Chain section of this Exhibit A as
regards the corresponding supply ramifications of
FEN/VEN adjustments.
- Item information / pricing submitted by Buyer, manually
entered into RIM and CORE by Seller within four business
days after receipt from Buyer.
- Seller will correct Seller's manual entry pricing errors
within one business day after Buyer informs Seller of
the error.
- Seller will correct Seller's manual entry errors other
than pricing errors within three business days after
Buyer informs Seller of the error.
- Buyer will not change commissions for any products or
equipment offered at NTB stores as of the Closing Date.
- Retail Inventory Management (RIM) system providing daily
inventory information, On-hand Counts.
-------------------
(1) All services in this Exhibit A shall be subject to the Seller's information
technology freeze policy that restricts changes and upgrades to Seller's systems
around the end-of-year high season.
Seller shall not be required to provide any data or data feeds with respect to
non-NTB Store customer relationships or with respect to customer transactions
other than at NTB Stores.
(2) Buyer will be responsible for providing the following in a timely manner:
- Item information required for POS including warranties
- Pricing information at an item/store level
- Commercial customer information needed for lookup
- New product commission levels (for Buyer-only products)
- Maintaining accuracy of inventory accounts
Then-current Seller record layouts will be used for all exchange of information
between Seller and Buyer.
A-1
- Product Flags, warranty information, State and Local
Accounts, Tax Tables and Store Level Configuration
Information, distributed from the Command Central
Server.
- Automotive Catalog Parts and Service Labor item
information tied to AAIA vehicle tables updated to
stores approximately once each month. (MacDonald /
Wrenchhead, Inc.).
- Systems code updates (In-House, Distributed through
IBM).
- Periodic Systems Maintenance Package(s) (In-House,
Distributed through IBM).
- At Seller's discretion and at no additional charge to
Buyer, Buyer must utilize then current release of any
software.
b. BUYER ACCESS TO SYSTEMS SUPPORT (REAL TIME).
- Commercial Customer Files accessible real time,
supporting TPOS processing. (Commercial NAD).
- National NAD (Name Address Directory) lookup accessible
for all retail customers, if not available (new
customer) is produced and held locally, captured at high
level and processed to provide national view.
- Credit authorization requests processed through Sears
Automotive Commercial Credit and 3rd Party Credit (MC,
Visa, Discover, AMEX, including NTB Preferred Credit
through Citigroup).
- Seller will use commercially reasonable efforts to
install a test-version of the TPOS System in Buyer's
headquarters within four weeks after the Closing Date.
Buyer will be responsible for all hardware costs
(including maintenance costs) for such system.
- Seller will provide to Buyer access (at least equivalent
to the level of access provided by Seller to the
Business prior to the Closing Date) to an IT project
manager (currently, Xxxxx Xxxxxxx) and a CORE
administrator.
- Temporary shopping passes available when new NTB
Preferred Credit is activated.
- Check authorizations and/or requests processed.
(Certegy).
c. IN-STORE POS SYSTEMS SUPPORT (LOCAL).
- POS selling features supporting core business groups
- Tires & Wheels
- Batteries
- Steering / suspension / shocks / struts
- Brakes
- Over the Counter
- Labor / Related Services
- Reporting
- Inventory
- Sales
A-2
- People
- Labor Scheduler Application
- Customer Service
- Jobs in Progress / Completed Jobs Summary
d. IN-STORE BUSINESS INTRANET SYSTEMS SUPPORT (WEB).
- News - as provided by Buyer
- Reference Articles - as provided by Buyer
- Action Plans
- Performance Reporting
- Applications
- Manpower Planner (Hours Guidelines by week / day
and by function)
- HR PRO Transaction Processing Center for Managers
- Store Visits by DM (Recap, Action Planning)
- Training Tracker
- Timecard (non-management) Performance Reviews
- Invalids Reentry
- UPS link for outbound shipments and tracking
- POWS system for preparing purchase orders for
ordering supplies
- Seller will continue to provide both WAN and LAN
and all existing communications at no charge to
Buyer (other than as set forth in Section 2 below).
- Seller will continue to support services for IT
Business Support Services as Seller provided such
support services prior to the Closing Date.
e. E-MAIL SUPPORT (WEB).
- Seller will continue to provide current e-mail system.
f. SYSTEMS INFORMATION (OUTPUTS).
- Sales transactions produced and transmitted nightly
containing customer, vehicle and product/service sales
information.
- Transactions passed to SPRS (sales performance reporting
systems), credit, inventory, general ledger, intranet and
CRM
- Time and Attendance Hours and Pay Code entries produced
weekly and transmitted to PeopleSoft HR processing.
- Service Incentive files produced weekly and transmitted
to PeopleSoft HR processing.
- Customer information passed to NAD to support national
access.
A-3
g. EXTRACTS.
- Provide daily un-reconciled SPRS sales and miscellaneous
income sales feeds. Buyer will receive the fields as
shown in the Definition of System Functions (250) (dated
November 20, 2003).
- Provide historical SPRS sales and miscellaneous income
sales data showing unit and sales data by day going back
to January 1, 2002.
- Margin data will be provided in SPRS feeds after the
Closing and will cover only periods after the Closing
Date.
- Quantity on Hand, On Order, Stockplan (FEN/VEN/reorder
point information) provided by store by item on a daily
basis after nightly sales update for that day.
- For customer marketing purposes the historical sales
transactions identified to a customer will be provided by
Seller's Customer Interaction Warehouse (LCI) within five
days after the Closing Date.
- Item information will be provided in a one-time extract
prior to the Closing Date and changes to items will be
sent on a daily basis after the Closing Date.
- Vendor / trading partner information will be provided in
a one-time extract within five days after the Closing
Date.
2. FEES TO SELLER
- Based upon an annual fee of $4,100,000 (this includes
reimbursement to Seller for the cost of leased lines and pro rata
portion of license maintenance fees).
- Buyer must maintain its hardware systems at its own expense
(maintenance, replacements, etc.) except for maintenance covered
as of the Closing Date by Seller's corporate contracts.
- Buyer will return to Seller the first 35 M10 servers that Buyer
ceases to use for TPOS after NTB Store conversions. Transportation
for these items will be arranged and paid for by Seller.
3. MIGRATION TO BUYER SYSTEM
- Buyer will appoint a designated support coordinator who will
assist in coordinating services/support for Seller.
- Seller will provide a designated support coordinator who will
assist in coordinating service/support to the Buyer on a daily
basis during the migration process including coordinating with and
having reasonable access to resources in other functional areas at
Seller.
- Buyer will pay Seller $150 per hour for migration-related work and
Buyer-requested changes performed by Seller's employees.
A non-exclusive list of point-of-sale migration-related work to
which this bullet applies may include:
A-4
- Manage the technical development and execution of
the extract process.
- Create and test programs to perform TPOS extracts
to assist Buyer in converting to their point of
sale system.
- Create and test programs to perform daily extracts,
including the running of the special extract
programs.
- Balancing and other special transition requests,
including investigation for answers to Buyer's
questions.
Seller shall advise Buyer in advance as to whether Seller
believes any work to be done by Seller is migration-related
work or Buyer-requested changes billable under this bullet.
No work performed by Seller prior to the Closing Date shall be
billable under this bullet.
- Buyer will provide a schedule of NTB Store conversions to Seller
on or before the Closing Date.
- Seller shall reasonably cooperate with Buyer in accommodating
Buyer's changes to Buyer's store conversion schedule. Buyer
acknowledges that changes that do not meet Seller's and Seller's
third-party lead times for such changes may result in additional
costs or require adjustments to service levels. Promptly after
receipt from Buyer of a requested change to Buyer's conversion
schedule, Seller shall notify Buyer if and to the extent the
requested change may result in additional costs or require service
level adjustments. If Buyer nonetheless requires the change, Buyer
shall reimburse Seller for Seller's additional costs incurred or
accept the service level adjustment, as applicable.
- On the morning of the day of conversion of each NTB Store, Seller
shall provide adjustments to Quantity on Hand for such NTB Store
current through the close of business of the previous day in
accordance with Seller's batch processing schedule.
- Seller shall provide Buyer data relating to customer sales /
vehicle information as soon as reasonably possible provided Buyer
provides Seller access to the systems on which such data resides.
- Buyer and Seller will work together diligently to address how best
to obtain NTB Store inventory data and data relating to customer
sales and vehicle information from Seller's systems and provide
such data to Buyer for Buyer's NTB Store conversions.
A-5
HUMAN RESOURCES
1. DESCRIPTION OF SERVICES
a. PEOPLESOFT (PAYROLL AND OTHER HUMAN RESOURCE) APPLICATIONS
SUPPORT.
- Business application support for the current version,
installation and configuration of the PeopleSoft
(payroll and other human resource applications).
- Technical systems support for the current versions of
hardware, operating system software, including data
bases, report generators, networking and all mainframe
infrastructure components associated with the PeopleSoft
(payroll and other human resource applications) systems.
- Receipt, storage and (through PeopleSoft (payroll and
other human resource applications)) organization of HR
and payroll data transmitted to the computing
environment.
- Direct access to all PeopleSoft (payroll and other human
resource applications) and HR Pro computing
environment(s) for NTB through existing network
capability including at least 5 user seats providing
employee data look up and maintenance capability
(consistent with current capabilities).
- Access to report generation capabilities utilizing
existing standard HR reports (consistent with current
capabilities).
b. PAYROLL.(3)
- Process regular payroll and bonus payments to Company
employees.
- Perform all U.S. payroll and employee withholding tax
remittances to local, state, and federal agencies and
filing of all corresponding tax returns with respect to
employee withholding and payroll taxes.
- Maintain direct deposits, pay card, and take any
voluntary deductions that are elected by the Company
employees after the Closing Date for programs offered by
the Buyer through the Company (such as for tools and
United Way) that are not benefit related for Company
employees.
-------------------------
(3) Buyer will be responsible for timely providing the following on an ongoing
basis:
- Ensure that all HR and benefits data is entered into the appropriate
HR System (e.g. PeopleSoft) in accordance with the current existing
schedule;
- Ensure integrity and timeliness of time data submitted to Payroll;
- Submit time and attendance data via TPOS or other file transfer
protocol or approved hardcopy timesheet form;
- Maintain employee names, addresses and social security/national ID
numbers on HR system;
- Request "on demand" checks only when needed; and
- Provide necessary data for inclusion on W-2s by dates determined by
Seller.
A-6
- Issue termination payments, consistent with current
practices and in accordance with established federal and
state regulations via "on demand" checks for Company
employees.
- Provide reporting to governmental and/or other
regulatory agencies as currently being performed with
respect to Company employees, excluding 5500 filings.
- Process stop payment orders and Automatic Clearing House
reversals with appropriate bank confirmation and check
reissue, where applicable, for Company employees.
- Process garnishments, deductions and remittances to
third parties with respect to Company employees.
- Handle payroll tax inquiries from Company employees and
taxing agencies. ADP handles inquiries from taxing
agencies.
- Process payroll tax filings via 3rd party vendor - ADP.
- Process unemployment claims via 3rd party vendor - UC
Express.
- Handle employment verification via third party vendor -
TALX.
- Handle employee inquiries for payroll and HR related
questions, excluding benefits questions.
- Maintain reverse positive pay for checking account and
reconcile the ACH accounts.
- Manage governmental audits of employee personnel data.
- Seller will be responsible for maintaining and
adequately funding payroll bank accounts from which
payroll and tax expenses will be drawn, it being
understood that on the date such payroll and tax
expenses are incurred, Buyer shall reimburse Seller for
all such expenses, provided that Seller shall have
provided Buyer with at least 48 hours notice of the
amount of such expenses together with any required
wiring instructions.
- As to any NTB Store which is transferred from TPOS to
Buyer's systems on a date other than at the end of a pay
period, Seller will provide Buyer with Seller's
"benefit/vacation rate" for hourly associates at such
NTB Store, current as of the Saturday preceding the date
of the transfer of such NTB Store to Buyer's systems,
for the purpose of putting that rate into effect for any
hourly associate who would be adversely affected by the
loss of the ability to calculate variable pay for such
pay period. Seller will also work with Buyer to
establish any other procedures that may be necessary to
capture accurate payroll information for such pay period
for employees at such NTB Stores.
c. OTHER TERMS.
- Buyer will use Company's FEIN.
- Seller, on behalf of Company, shall provide each of the
Business Employees who are transferred to the Company
with two calendar year 2003 Form W-2, Wage and Tax
Statements setting forth the wages paid and Taxes
withheld with respect to the Business Employees for such
year by Seller and the Company as predecessor and
successor employers, respectively, postmarked on or
before January 31, 2004. Seller agrees to use its best
efforts to file all
A-7
returns in the manner provided by Revenue Procedure
96-60 Section 4, 1996-2 C.B. 399. Seller agrees
(pursuant to Section 3504 of the Code and Revenue
Procedure 70-6, 1970-1 C.B. 420) to act as agent on
behalf of the Company (on such terms and conditions as
the parties mutually agree) with respect to its
obligation to file calendar year 2003 Forms W-2 and to
file all necessary tax forms and make all necessary
payments with respect to all payroll payable for the
remaining period in calendar year 2003 and for any
additional period set forth in this Agreement. At least
10 days in advance of the due date for any payments
described herein, Buyer shall pay such amount to Seller.
- For the sake of clarity, for all purposes of this
Agreement, including without limitation, those of the
preceding bullet point, Seller will not be required to
advance or pay from its own funds (i.e., funds not
advanced to it by Buyer) any taxes of Buyer, including
any employment or payroll taxes.
- Buyer will solicit, and Seller will process, new W-4's
and I-9's for each Business Employee.
- Seller shall provide the Company with all necessary wage
history and documentation required to execute all
necessary filings with the appropriate state agencies
that allow a transfer to the Company of all state
unemployment tax and worker's compensation experience
and associated reserves attributable to the Business and
Business Employees, as a predecessor employer, provided
Buyer shall reimburse and hold Seller harmless for costs
payable to or charges assessed against Seller's account
with the State of Georgia relating to any Business
Employee terminated on or after the Closing Date in an
amount up to and including the amount of reserve so
transferred in that state. Notwithstanding the
foregoing, if Seller determines in its sole discretion
that compliance with this paragraph would create an
unacceptable detriment of any kind to Seller for which
Seller would not be indemnified by Buyer, then Seller
may treat this paragraph as inapplicable.
- Buyer shall engage PricewaterhouseCoopers to make
appropriate filings for any State or jurisdiction
associated with the transfer to Company of any
unemployment or worker's compensation experience ratings
and associated reserves, and Seller shall not be
responsible for any filing fees related thereto.
- Seller shall provide Buyer with personnel, payroll
history data and documentation (electronic and paper
based) maintained by Seller in order to facilitate the
migration of payroll processing to the Buyer's payroll
system.
- Seller will assist Buyer in the development of the
PeopleSoft to ABRA data interface by providing
Seller-specific PeopleSoft expertise. Buyer will be
responsible for designing, coding and implementing the
ABRA data interface.
- Seller will provide Buyer all payroll and HR data
currently maintained in Seller's PeopleSoft system and
related tables. Seller will provide an explanation to
Buyer regarding how Seller uses each field. Frequency
and degree of data detail to be determined as
requirements are finalized.
- Seller will provide reasonable levels of access to
functional experts to serve as liaison with Buyer in the
HR, Payroll and risk management areas in order
facilitate the smooth transition of these functions
through the applicable Expiration Dates.
A-8
- If and during such period it is necessary for Seller to
maintain medical and dental coverage for Business
Employees through Seller's plans after the Closing Date,
Seller will provide a report of premium due from Buyer
and will remit premiums to carriers through Seller's
benefits administrator, Xxxxxx Associates LLC. Buyer
will assume cost of related administrative expenses, if
any.
- Seller will administer tuition reimbursement through ADP
for claims in process prior to the Closing Date. Buyer
will assume the cost of tuition reimbursements paid
after the Closing Date.
- Promptly after the Closing, Seller will provide Buyer a
copy of the reduction in force calculation formulas and
methodology that Seller used to do its 2002 end-of-year
reductions in force at the NTB Stores, and Seller will
be available to answer questions that Buyer may have
regarding Seller's 2002 end-of-year reduction-in-force
formulas and/or methodology.
2. FEES TO SELLER
- Based upon an annual fee of $500,000.
3. MIGRATION SERVICES
Seller shall provide additional data as reasonably requested by Buyer
to accommodate Buyer's benefit provider needs (401k, Life, Disability,
FSA etc.) at a rate of $150 per hour for associated hours of work
incurred.
- A non-exclusive list of HR-related migration activities to
which this bullet applies may include:
- Assist in the technical development and execution of the
human-resources migration process
- Map data from Seller's PeopleSoft to the Buyer to ensure
all datastreams to be migrated are identified and
accounted for
- Create and test programs to perform the actual
migration, including automatic termination and re-hiring
of associates, changes in benefits, changes in store
status, and transmittal of all historical data to Buyer
- Configure payroll for Company and test the payroll
process
- Develop necessary interfaces between NTB Store and Buyer
systems so that ongoing information is properly
transmitted/shared during the migration period
The estimated charge for the foregoing HR-related
migration activities (i.e., the foregoing five subbullets)
is currently $165,000.
Seller shall advise Buyer in advance as to whether Seller
believes any work to be done by Seller is migration-related
work or Buyer-requested changes billable under this bullet.
A-9
No work performed by Seller prior to the Closing Date shall be
billable under this bullet.
4. EMPLOYMENT POLICIES
- Buyer agrees to adopt Seller's new employment policies as they are
implemented. If Buyer fails to do so, Seller may suspend any or
all affected Transition Services described in this Human Resources
Section as of the date on which Buyer's and Seller's employment
policies diverge.
A-10
ACCOUNTS PAYABLE, ACCOUNTING AND FINANCIAL REPORTING
1. DESCRIPTION OF SERVICES
a. DISBURSEMENTS.
- Process accounts payable.
- Match merchandise receipt to invoice consistent with
current Seller practices.
- Approve invoices per current Seller approval principles.
- Pay vendors.
- Correspond with vendors.
- Maintain accounts payable within 3 business days after
applicable CORE vendor tables are updated.
- Retain records.
- Process other disbursements.
- Pay approved disbursements.
- Process travel and entertainment.
- Prepare 1099s.
- Add restrictions on use of purchasing cards used at NTB
Stores per Seller's instructions.
- Buyer will be responsible for obtaining purchasing cards
in Buyer's name as of the conversion cut-over date for
the applicable NTB Store; Seller will discontinue the
current purchasing card in Seller's name as of that
conversion cut-over date.
- Buyer will be responsible for purchasing and maintenance
of equipment, excluding supplies for distribution to
customers governed by the Buying section of this Exhibit
A.
- On each Tuesday prior to the Expiration Date (and on the
Tuesday following the Expiration Date), Seller shall
issue a statement to Buyer setting forth the difference
between the NTB Stores' aggregate net daily sales
collected by Seller during the week ending on the
previous Saturday minus the NTB Stores' aggregate
merchandise purchased by Seller during such previous
week (such difference, the "Weekly Settlement Amount").
Within 48 hours after Buyer's receipt of Seller's
statement, Seller will pay to Buyer any positive Weekly
Settlement Amount, and Buyer will pay to Seller the
amount, if any, by which the Weekly Settlement Amount is
less than zero. Unless otherwise mutually agreed in
writing, all amounts under this bullet will be payable
through electronic transfer of immediately available
funds to a bank account designated by the recipient from
time to time. Any portion of an amount due to a party
and not paid on its respective due date shall bear
interest at the rate of 12% per annum from the due date
until paid in full. Notwithstanding the foregoing, if an
amount due to Seller is disputed by Buyer in good faith
and Seller receives prompt written notice of such
dispute, late charges shall not begin to accrue until
the dispute is settled.
A-11
- Any other amounts payable by Buyer to Seller and not
covered by Section 2.01 of the Agreement or by the
previous bullet (e.g., operating expenses and real
estate expenses for the NTB Stores paid by Seller)
adjusted for any amounts then discovered that were not
included in the applicable Weekly Settlement Amounts due
to late recording or other omission shall be invoiced by
Seller to Buyer within six (6) business days after the
end of each Seller's fiscal month during which such
amounts are incurred or discovered. Buyer will pay such
amounts within 48 hours after receipt of Seller's
invoice. Unless otherwise mutually agreed in writing,
all amounts payable under this bullet will be payable by
Buyer through electronic transfer of immediately
available funds to a bank account designated by Seller
from time to time. Any portion of an amount due to
Seller not paid on its respective due date shall bear
interest at the rate of 12% per annum from the due date
until paid in full. Notwithstanding the foregoing, if
the amount due to Seller is disputed by Buyer in good
faith and Seller receives prompt written notice of such
dispute, late charges shall not begin to accrue until
the dispute is settled.
- Settlement under this Section 1(a) excludes Kansas City
commercial credit account activity.
b. GENERAL LEDGER.
- Process journal entries.
- Use reasonable efforts to maintain integrity of
balances.
- Monthly reconciliation of balance sheet accounts where
account data is provided according to Seller's formats
and processes.
- Maintain general ledger and supporting records as
necessary.
- On December 1, 2003, provide one-time feed of fixed
asset records for NTB Stores by category, by month and
by year.
- Provide daily non-detailed general ledger feed.
- General ledger monthly summary (accumulation of daily
feeds above).
- Provide conversion methodology from 4-4-5 accounting
cycle to calendar month accounting cycle. Buyer will be
responsible for validation and use of the methodology.
c. REPORTING.
- On or before December 15, Seller shall provide a
summarized balance sheet as of the Closing Date and
year-to-date summarized income statements for Seller's
fiscal year 2003 through Seller's fiscal month ending on
the Closing Date, consistent with the line items
included in the interim Financial Statements (including
any applicable documentation), except that the balance
sheet line items will include only applicable general
ledger line items after Closing.
- On or before December 19, 2003, Seller will provide to
Buyer individual store and support unit P&Ls for each
Seller fiscal month for Seller fiscal years 2002
A-12
and 2003 (through Seller's fiscal month ending on the
Closing Date) maintained in accordance with Seller's
standard practices.
- On or before December 31, 2003, Seller will provide to
Buyer a November 2003 year-to-date summarized cash flow
statement (through Seller's fiscal month ending on the
Closing Date) consistent with the summarized balance
sheet and summarized income statement provided in the
first bullet of this Section 1(c).
- Seller will provide to Buyer on Seller's standard batch
processing schedule daily trial balance and daily
transaction files for NTB Stores for which Seller
provides Store Based Transition Services.
- Entries received from the Buyer by the third business
day after the end of the Seller's fiscal month will be
posted by the Seller and be included in the summary
level trial balance the Seller will provide to the Buyer
by the sixth business day after each Seller's fiscal
month end; provided, however, for Seller's December 2003
fiscal month, the Buyer will provide to the Seller the
summary trial balance on or before January 15, 2004.
This summary trial balance will be part of the daily
transmission the Buyer receives from the Seller. The
file format for these entries will be provided to the
Buyer by the Seller.
- Maintain an Essbase reporting database (ULDB) which
warehouses financial information.
- Provide data extracts from the ULDB as reasonably
requested by Buyer in accordance with past Seller
practices.
d. CASH MANAGEMENT.
- Seller will continue to provide cash management services
consistent with its current practices with respect to
the Business.
- Buyer will be responsible for payment of armored car,
banking and other services.
- Banking fees will be $71.96 per NTB Store per month plus
a returned check cost of $2.24 per returned check.
e. REAL ESTATE.
- Management of lease payments and real estate expenses
for leased real estate.
- Buyer will be responsible for lease interpretation,
including as it relates to lease payment and real estate
expenses.
- Buyer will be responsible for post Closing activity,
including all real estate correspondence.
f. OTHER TERMS.
- All Transition Services to be based on Seller's fiscal
periods (currently 4-4-5).
- Seller does not and will not provide tax, legal or
accounting advice.
A-13
- Seller's single point of contact for accounts payable
related issues will be Xxxxxxxxx Hon (or her
Seller-designated replacement or successor).
- Seller's single point of contact for accounting related
issues will be Xxxxx Xxxxx (or her Seller-designated
replacement or successor).
- Seller will provide a reasonable portion of the time (at
least equivalent to the portion of time provided by
Seller to the Business prior to the Closing Date) of a
senior level support person agreed to by both parties to
support detailed account analysis, and audit exceptions.
- Buyer has the right to visit the accounting facilities
from which the Services in this Section are provided
(i.e., Dallas) to perform procedure audits, sampling of
data and to review account reconciliations provided that
Buyer provides reasonable advance written notice of such
audits, that such audits do not interfere with Seller's
business operations and that Seller agrees in writing to
be bound by Seller's security and confidentiality
requirements. Buyer shall not have access to any
information of Seller's or any third party's businesses.
- Buyer shall provide assistance at the level previously
provided by NTB Stores, Commercial Account Managers and
District Managers to support Seller's audit activity for
periods prior to the Closing Date.
- Seller shall prepare and file or cause to be filed sales
tax returns and shall remit or cause to be remitted
sales taxes relating to the NTB Stores for all fiscal
periods ending on or before the Closing Date. Sales tax
return reporting periods relating to the NTB Stores for
periods ending on or prior to the Closing Date are
consistent with the Seller's fiscal month. Buyer shall
provide necessary assistance as reasonably requested by
Seller to enable Seller to file such sales tax returns
in a timely manner, including causing such returns to be
duly executed by an officer of the Company and returned
to Seller within 48 hours of receipt by Buyer from
Seller. Seller will not file sales tax returns or remit
sales taxes for NTB Stores for periods ending after the
Closing Date, but will provide necessary information
reasonably requested by Buyer in order for Buyer to do
so.
- Seller shall perform Transition Services under this
Accounts Payable, Accounting and Financial Reporting
Section in accordance with Section 3.04(b).
- Seller shall provide a certification in the form set
forth below within thirty (30) days following each
fiscal quarter of the Buyer with respect to Buyer's
immediately preceding fiscal quarter during which Seller
provided Accounts Payable, Accounting and Financial
Reporting transition services ("Accounting Transition
Services") to the NTB Stores.
Seller shall certify that with respect to the Accounting
Transition Services provided to the NTB Stores as a
whole during such fiscal quarter:
1. Seller has performed substantially the same control
procedures on the financial transactions and
account balances as were performed immediately
prior to the Closing.
A-14
2. Seller has exercised substantially the same level
of care in performing the control procedures on the
financial transactions and account balances as was
exercised immediately prior to the Closing.
3. Seller has promptly notified Buyer of any
significant change in the control procedure on the
financial transactions and account balances or of
any deficiency thereof as to which Seller's manager
of the Accounting Transition Services becomes
aware.
2. FEES TO SELLER
- Based upon an annual fee of $700,000.
A-15
KANSAS CITY COMMERCIAL CREDIT
1. DESCRIPTION OF SERVICES
Initial Account Load
- NTB-only accounts will be set up in "VIP" status, which will
allow all transactions to bypass the transaction
authorization process. Buyer will be responsible for
monitoring accounts and providing timely e-mail to Seller for
NTB-only accounts to be placed on credit hold.
- NTB-only accounts will use current customer data including
credit limit.
- Sales authorization for joint accounts will be based upon
Seller-only data as contained in Seller's Infinium system.
Account Maintenance
- Maintain commercial credit customer accounts receivable
accounts on Infinium-based receivable accounts receivable
system
- Seller will provide a daily feed of detail sales
transactions for direct automated input by the
Buyer into the Buyer's JDE accounts receivable
subsidiary records system.
- Buyer will issue monthly statements to NTB Store
commercial credit customers. Seller will issue
statements to NTB Store commercial credit customers
for open receivables accruing prior to the Closing
Date.
- Provide customer and store assistance in accordance with past
practices
- Buyer will advise Seller of new accounts for new commercial
credit customers to be set up as follows:
- Via e-mail from Buyer to Seller received prior to noon
Eastern time
- Buyer's e-mail shall contain:
- Customer name
- Full address
- Phone number
- Fax number
- Message box
- Class code
- Price code
- Tax exemption status
- Required information, and
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- Credit limit ("$0" if cash-only customer)
- Seller shall use commercially reasonable efforts to set up
new NTB accounts for Buyer in Seller's Infinium and NAD
systems by the end of day if Buyer has provided the foregoing
information prior to noon Eastern time.
- New NTB-only accounts will be set up in "VIP" status, which
will allow all transactions to bypass the transaction
authorization process. Buyer will be responsible for
monitoring accounts and providing timely e-mail to Seller for
NTB-only accounts to be placed on credit hold.
- Buyer will e-mail new accounts list to its NTB Commercial
Account Managers ("CAMs").
- Buyer will advise Seller of accounts requested to be placed
on credit hold or taken off hold via:
- Credit limit increases and decreases e-mail sent out by
noon Eastern time, and
- Regularly scheduled twice monthly e-mail
(E-mails will be sent to Xxxxx Xxxxxx)
- Buyer will provide the following information in its e-mail to
Seller requesting an account be placed on hold:
- The account number for the account in Seller's system
- Customer name, and
- Maintenance needed
- Credit Holds on joint accounts are subject to Seller's
approval.
- Seller will turn off "VIP" status in Seller's Infinium
systems for accounts that are put on credit hold, pull the
account number in Seller's NAD system, and place a note
indicating "Hold/Cash Required" in NAD.
- Buyer will handle all aspects of store chargebacks, including
e-mails to stores, accounting entries, and entry to Buyer's
accounts receivable subsidiary records.
- Seller will provide invoice reprints to Buyer:
a. for National Accounts in accordance with past
practices, and
b. for special requests as e-mailed in subsection
(c) below
Request format will be an e-mail containing the
following information:
(1) Customer name,
(2) Invoice date,
(3) Invoice #, and
(4) Invoice amount,
c. Buyer will e-mail the reprint request to
Seller by noon Eastern time for reprints and
Seller will use commercially reasonable
efforts to overnight those requested to Buyer
that business day.
Reciprocity of Payments
- Each of Seller and Buyer will handle payments erroneously
received by such party that should have been directed to the
other party in the following manner:
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- The party receiving erroneous payments will provide details
to the other party on every Monday for the previous week via
e-mail with an attachment containing the customer name,
account number, and overpayment amount, followed by
overnighting of copies of the respective remittance advice
detailing the overpayment.
- In addition the foregoing details will be provided for the
partial week up to two business days before the 25th
statement cut-off date.
- A check payment will be made to other party weekly based upon
the overpayment total from the detailed schedule.
Buyer Responsibilities
- Buyer will handle all accounting entries, except for initial
posting of credit sale through the point of sale entry, which
will post to the NTB General Ledger maintained by Seller along
with the entire TPOS feed.
- Buyer will prepare monthly reconciliation of the accounts
receivable subsidiary records to Buyer's general ledger
balance.
- Buyer will instruct CAMs how to handle pricing and taxability
of the customer issues.
- Buyer will provide to Seller a monthly (on a Seller's 4-4-5
basis) file of payments received by Buyer and adjustments made
by Buyer.
Provision of Account Information
Seller will, on the Closing Date:
- Provide a list dating back to January 1, 2002 of the following
information for all commercial credit customer accounts
containing only NTB transactions:
(1) Name
(2) Address
(3) City
(4) State
(5) Zip
(6) Current Account Balance
(7) Highest Monthly Balance since 1/1/2002
(8) Current Credit Limit
(9) Last date paid and amount
(10) If customer has been placed on hold
(11) Current Receivable aging summary balance by customer
(12) Date of first sale
(13) Old STG Commercial Credit Account number
(14) Account requirements
(15) Account Type
(16) Tax status
(17) Class Code
(18) Parts Price Code
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(19) Labor Price Code
- Provide a list dating back to January 1, 2002 of the following
information for all commercial credit customer accounts
containing both SAC and NTB transactions:
(1) Name
(2) Address
(3) City
(4) State
(5) Zip
(6) N/A
(7) N/A
(8) Current Credit Limit
(9) Last date paid and amount
(10) If customer has been placed on hold
(11) N/A
(12) Date of first sale
(13) Old STG Commercial Credit Account number
(14) Account requirements
(15) Account Type
(16) Tax status
(17) Class Code
(18) Parts Price Code
(19) Labor Price Code
Buyer Setup
- Buyer will provide at no charge any data entry required to set
up new Accounts Receivable customers on Buyer's system.
- Buyer will set up accounts in Buyer's accounts receivable
system based on information provided by Seller, as soon as that
can be provided.
- Buyer will make credit determinations for new NTB commercial
credit customers after the Closing Date and will provide
necessary information for Seller to update its systems used to
support those customers.
Customer Communications
- Seller will advise NTB commercial credit customers of the
change in ownership via mail.
- After the Closing Date, Buyer will advise NTB commercial credit
customers of change in ownership via mail, which notice shall
include Buyer's lockbox address for payments and request for a
new credit application.
- After the Closing Date, Buyer will attempt to contact larger
accounts by phone, balance of accounts to be contacted via
statements and letters.
2. FEES TO SELLER
A-19
- Based upon an annual fee of $500,000.
A-20
BUYING
1. DEFINITIONS
The following terms when used in this "Buying" Section and in the
"Supply Chain" Section below shall have the following meanings.
"Buyer Tires" means Goodyear Fulda brand tires.
"Discontinued Products and Services" means products, equipment and/or
services provided by American Racing, Xxxxx General, Xxxxx East/West,
Hennesey, Hunter Engineering, Cintas, and SPX/Northwest.
"Excluded Products" means products and/or equipment provided by
Treadways Corporation (Sumitomo), Xxxxxxx Controls (including all
related signing and promotional materials), Yuasa, ZhongNan Aluminum
(PBL), Thule, American Manufacturing Group, Dayco, and Igloo Products.
"NTB Exclusive Tires" means Superguard LE 40, American Classic AP, and
General Ameri A/S tires.
"Seller Distributed Standard Products" means Standard Products that as
of the Closing Date were stocked at or cross-docked through the TDCs
and not shipped directly to NTB Stores from the applicable vendors.
"Seller Tires" means tires that are Seller Distributed Standard
Products, and expressly excludes Buyer Tires.
"SLS" means Seller's wholly-owned subsidiary, Sears Logistics Services,
Inc.
"Standard Products" means tire, under-car, and over-the-counter
products and equipment, other than Discontinued Products and Services
and Excluded Products, being offered or in inventory at NTB Stores as
of the Closing Date.
"TDC" means a Seller tire distribution center.
2. DESCRIPTION OF SERVICES
a. Administration of the acquisition, based on product forecasts
to be provided by Buyer, of Buyer Tires and Standard Products.
If Seller decides to discontinue offering any Standard Product
at SAC, Seller shall provide at least 60 days prior notice of
such discontinuance to Buyer, and Seller will no longer be
responsible to acquire such discontinued Standard Product for
Buyer subsequent to the discontinuation date. In such event,
Buyer will have the right to add a substitute product (on a
SKU for SKU basis), which shall become a Standard Product
available to Buyer through Seller's distribution system.
A-21
b. Seller shall sell Standard Products and Buyer Tires to Buyer
under this Agreement at Seller's average weighted cost for
such Standard Products or Buyer Tires. As used herein,
"average weighted cost" means the average cost paid by Seller
for the Standard Product or Buyer Tire, excluding any
distribution costs.
c. Except as otherwise provided in Section 2(a) above, products
added after the Closing Date by Seller to its distribution
system may be added to the Standard Products covered by this
Section 2 at Seller's sole discretion.
d. Per-store order volumes of Seller private label and co-branded
SKUs on a per SKU basis will not exceed historical order
volumes plus 10%.
e. Seller will not ship any Buyer Tires to anyone other than
Buyer's authorized locations or other destination of Buyer.
Buyer must take receipt of all Buyer Tires ordered into
Seller's TDCs. Seller will also advise Buyer weekly as to the
number of Buyer Tires in inventory in the TDCs.
f. Products governed by the Transition Services provided by
Seller to Buyer under this Section 2 are provided solely for
the purpose of transition of NTB Stores.
g. Seller will not provide buying or other assistance with
Discontinued Products and Services. However, Discontinued
Products and Services may be included in the inventory
transferred to Buyer on the Closing Date, and Buyer may stock
Discontinued Products and Services in NTB Stores after the
Closing Date.
h. Notwithstanding anything to the contrary in the Stock Purchase
Agreement, the Contribution and Assumption Agreement, or any
other agreement between the parties, the Excluded Products
shall not be included in the inventory transferred to Buyer on
the Closing Date and shall not be included on the Closing
Balance Sheet. Seller shall retain ownership of all Excluded
Products after the Closing Date. Buyer shall not advertise,
sell, or offer to sell any Excluded Products that were located
at NTB Stores on the Closing Date and shall, promptly after
the Closing, prepare such Excluded Products for pick up by
Seller (up to and including loading such product onto Seller's
trucks). Seller shall pay Buyer a one-time fee of $90,000 for
all NTB Stores for pickup preparation work to cover Buyer's
out-of-pocket expense therefor, subject to written
confirmation of Buyer's payment of such amount.
i. Seller will produce itineraries as needed to support efficient
and timely pick-up of all Excluded Products (other than
Xxxxxxx Controls and Yuasa products) from Buyer's stores.
These itineraries and schedules will be provided to Buyer no
later than the Closing Date, with no pick-up scheduled prior
to December 4, 2003. Provided Buyer complies with Seller's
such itineraries and schedules, within fifteen (15) days
following the Closing Date, Seller shall, at Seller's expense,
pick up all Excluded Products (other than Xxxxxxx Controls and
Yuasa products) located at NTB Stores on the Closing Date.
j. With respect to Xxxxxxx Controls and Yuasa products:
A-22
(1) Buyer will have all NTB Stores prepared for Seller's
pick up of Xxxxxxx Controls and Yuasa products by
December 8, 2003.
(2) Seller will provide Buyer by December 5, 2003, a
detailed written schedule of pick up dates by NTB
Store.
(3) Buyer will identify seventeen (17) NTB Stores in its
schedule described in Section 2(j)(2) above as
priority NTB Stores.
(4) Beginning on December 8, 2003, Seller's carriers will
begin to pick up Xxxxxxx Controls and Yuasa products
from NTB Stores. Seller will pick up Xxxxxxx Controls
and Yuasa products on December 8, 2003 at the
seventeen (17) NTB Stores identified as priority NTB
Stores as set forth in Section 2(j)(3) above.
(5) Seller will use commercially reasonable efforts to
pick up the majority of the Xxxxxxx Controls and
Yuasa products by December 12, 2003; provided,
however, that all Xxxxxxx Controls and Yuasa products
will be picked up by December 20, 2003.
(6) Seller will cause the pick-up carrier to have
appropriate loading equipment on the trucks used for
pick up.
k. If Buyer or Seller fails to meet its schedule for performance
with respect to an NTB Store, the party failing to meet its
performance shall pay the other party $550 per failure,
provided that the first 10 failures shall not be charged.
l. During the period from the Closing through acceptance by
Seller's carrier, Buyer shall bear the risk of loss for
Excluded Products located at NTB Stores on the Closing Date,
subject to the dispute resolution procedures under Section
2.4(c) of the Stock Purchase Agreement.
m. Within thirty (30) days after the Expiration Date, Seller will
pay to Buyer a subsidy equal to $6.42 for each Seller Tire
shipped to Buyer through Seller TDCs under this Agreement
(except for tires shipped to Buyer in error and subsequently
returned) less $6.42 per Seller Tire returned to Seller TDCs
under Section 1(h) of the Supply Chain Section of this Exhibit
A. Notwithstanding the foregoing, if for any line of Seller
Tires, Buyer returns to Seller TDCs under Section 1(h) of the
Supply Chain Section of this Exhibit A more tires than were
shipped to Buyer through Seller TDCs under this Agreement, no
subsidy shall be paid on such line, but such excess in returns
shall not reduce the subsidy paid for other lines. For the
avoidance of doubt, no subsidy shall be paid on Buyer Tires.
Seller Tires transshipped through Seller's TDCs pursuant to
Section 1(n) of the Supply Chain Section shall not be deemed
new sales or returns, and such transshipment(s) shall not
result in a subsidy payment or a reduction of subsidy pursuant
to this Section 1(m).
A-23
SUPPLY CHAIN
1. DESCRIPTION OF SERVICES
Seller shall arrange for and Buyer shall accept the following services
through SLS, subject to any conditions contained herein:
a. Except as otherwise provided in Section 2(a) of the Buying
Section of this Exhibit A, Products added after the Closing
Date by Seller to its distribution system may be added to the
Standard Products covered by this Section 1 at Seller's sole
discretion.
b. Delivery of Seller Distributed Standard Products from vendors
to Seller's TDCs. Without limiting the generality of the
foregoing, Buyer shall be responsible for shipping all
Standard Products, other than tires, wheel weights, valves and
other products normally not shipped through the TDCs prior to
the Closing, directly to NTB Stores from vendors.
c. Processing through the TDCs of up to 50 new SKUs of Buyer
Tires. Buyer's addition of Buyer Tires to Seller's systems,
processes and procedures will be in accordance with those
currently in place and referenced below. Buyer shall provide
all information regarding Buyer Tire SKUs as requested by
Seller (including all information required by Seller's CORE
system) in a format to be specified by Seller. Seller shall be
responsible for the shipment and delivery of Buyer Tires from
Buyer's distribution centers to the TDC specified by Seller.
Buyer Tires will be delivered to the NTB stores along with the
Standard Products being shipped to NTB on the regular
frequency of delivery.
d. Fill Rates on Standard Products by line will be no less than
fill rates on Standard Products by line at SAC Stores so long
as NTB Store sales do not exceed 110% of historical sales
volume by line.
e. Delivery of Seller Distributed Standard Products and Buyer
Tires held at the TDCs to NTB Stores on the current
distribution frequency schedule, but in no event less than one
delivery per week.
f. Buyer will provide Seller, on approximately a weekly update
basis, a six-month view forecast, a 16-week forecast and a
six-week firm forecast of Buyer's usage of services under this
Section 1. Failure of Buyer to provide this regular forecast
may impact supply, including paragraph 1(d) and paragraph
1(e).
g. Fulfillment of Buyer's orders will be subject to supply
limitations of applicable third-party vendors, provided that
products will be filled at the fill rates specified in Section
1(d) above.
h. Subject to the terms of this Section 1(h), Seller's TDCs will
receive Buyer's returns at 75% of current cost for any Seller
Distributed Standard Products,
A-24
including without limitation, NTB Exclusive Tires, returned in
sellable condition. Seller will work with the Buyer to pick up
this product within two (2) weeks after Buyer advises Seller
of Buyer's intent to return this product, provided that the
product is ready for pickup when scheduled. Freight charges
will be reimbursed by Buyer, provided that Seller will be
responsible for freight if Seller wants Seller Distributed
Standard Products returned anywhere other than the closest
TDC.
i. Notwithstanding anything to the contrary in Section 1(h),
Seller's TDCs will receive Buyer's returns, at 100% of current
cost and at Seller's responsibility for freight, of (a) any
Seller Distributed Standard Product that Seller discontinues
(other than due to a general discontinuation by the
third-party manufacturer/vendor which is then governed by
subsection (h) above); and (b) any Seller Distributed Standard
Product that the third-party manufacturer/vendor will not
permit Seller to ship to NTB Stores but that Seller chooses to
continue to ship to SAC Stores. In all cases, products that
are returned must be in sellable condition.
j. Buyer shall provide Seller advance notice of Buyer's good
faith estimate of the number and SKUs of Seller Distributed
Standard Products to be returned pursuant to Section 1(h) or
Section 1(i) above or Section 1(n) below at least two weeks
prior to the return date, with actual quantities and SKUs to
be provided the night before the return date.
k. Except as set forth in Section 1(h) or Section 1(i) above or
Section 1(n) below and except for products shipped to Buyer in
error, Seller will not accept returns from Buyer.
l. For the avoidance of doubt, Seller shall not accept returns of
Buyer Tires, and Buyer shall be responsible for purchasing the
entirety of any Buyer Tires that remain in inventory at the
TDCs after all of the NTB Stores have been transferred to
Buyer's systems.
m. Attached hereto and incorporated herein by reference are SLS's
operating policies and procedures, which policies and
procedures shall be followed with respect to any services
rendered under this Exhibit. Any and all deviation from such
polices and procedures must be mutually agreed upon by the
parties and made in writing as an amendment to this Agreement.
n. During the term of this Agreement, Seller will receive Seller
Tires from NTB Stores that have been transferred to Buyer's
systems into the Seller TDCs and will ship such Seller Tires
in the normal course to NTB Stores not yet transferred from
TPOS.
o. Products governed by the Transition Services provided by
Seller to Buyer under this Section 1 are provided solely for
the purpose of transition of NTB Stores.
A-25
2. FEES TO SELLER
- Buyer will pay Seller a distribution charge (including freight
expenses) of $3.17 per Unit for the first one million Units
shipped through Seller TDCs under this Agreement. After the first
one million Units, Buyer will pay $3.50 per Unit shipped through
Seller TDCs under this Agreement. A "Unit" is a tire or a
standard-size shipping carton shipped outbound to an NTB Store. In
order for the foregoing pricing to apply to Buyer Tires, Buyer
must ensure full truckloads of Buyer Tires inbound to a TDC. If
Buyer does not do so and as a result thereof, Seller incurs
additional freight expense, Seller may increase the per-Unit
charge set forth above for Buyer Tires.
A-26
