AMENDED AND RESTATED TRANSITION SERVICES AGREEMENT (SELLER AS SERVICE PROVIDER)
EXHIBIT 10.7
Execution
Copy
AMENDED AND RESTATED TRANSITION SERVICES AGREEMENT
(SELLER AS SERVICE PROVIDER)
This AMENDED AND RESTATED
TRANSITION SERVICES AGREEMENT (this “Agreement”), dated as of March 10, 2006 and
effective as of March 5, 2006 (the “Effective Date”), is made by and between Saks
Incorporated, a Tennessee corporation (“Seller”), and The Bon-Ton Stores, Inc. a
Pennsylvania corporation (“Buyer”).
RECITALS
WHEREAS, pursuant to that certain Purchase Agreement, dated as of
October 29, 2005, by and between Seller and Buyer (the “Purchase Agreement”), Seller
has agreed to sell, or caused to be sold, to Buyer the Securities, and Buyer has agreed to purchase
the Securities as provided therein; and
WHEREAS, in connection with the transactions contemplated by the Purchase Agreement, Buyer and
Seller desire that Seller provide Buyer with certain transition services relating to the Business
as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties,
covenants and agreements contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:
1. Transition Services.
(a) During the term of this Agreement as set forth in Section 7 (the “Transition
Period”), and subject to the terms and conditions set forth herein, Seller shall provide, or
cause one or more of its Affiliates to provide, to Buyer and its Affiliates (with respect to the
Business) each of the services (each of the twelve (12) categories described on Annex A, a
“Service” and, collectively, the “Services”) specified on Annex A hereto
from the Effective Date and for the specific period of time described on Annex A with
respect to each such Service, which shall be provided in a manner consistent in all material
respects with that provided by Seller or one or more of its Affiliates to the Business during the
twelve (12) month period immediately prior to the Effective Date. Buyer shall purchase and pay for
such Services as provided for herein. The quantity of each Service shall be that which Buyer
reasonably requires for the operation of the Business in the ordinary course consistent in all
material respects with the operation of the Business during the twelve (12) month period
immediately prior to the Effective Date. The Services shall only be made available for, and Buyer
shall only be entitled to utilize the Services for the benefit of the stores operated by the
Companies and the Subsidiaries (in respect of the Business) immediately prior to the Effective
Date. Annex B hereto contains a description of each of the Services specified on Annex
A.
(b) The fees payable by Buyer to Seller for each Service are set forth on Annex A;
provided, that, if, after the Effective Date, Seller upgrades or otherwise changes any of
the Services provided to its Affiliates, Seller shall offer such upgraded or changed Service to
Buyer and provide support and maintenance related thereto for a fee at a rate equal to Seller’s
incremental cost of providing such upgraded or changed Service to Buyer, plus a pro-rata
allocation of actual overhead costs allocable to the provision of such Service, which rate shall
not in any event exceed the fee rate Seller charges its Affiliates for such upgraded or changed
Service, and, if Buyer accepts such upgraded or changed Service, Annex A shall be amended
to reflect such fees. If Buyer does not accept any such upgraded or changed Service, Seller shall
continue to provide such Service to Buyer in a form that is no less beneficial to Buyer as the form
in which it exists prior to such upgrade or change; provided, however, that if
Seller determines it would be burdensome to continue to provide Services to Buyer without such
upgraded or changed Service, Seller shall have the right to require Buyer to accept such upgraded
or changed Service at no additional cost to Buyer other than the application in each instance of
the Cost Adjustment Factor set forth in Annex A. Seller and Buyer acknowledge that some of
the Services to be provided hereunder require instructions and information from Buyer; Seller shall
inform Buyer, as soon as reasonably practicable after Seller becomes aware of the need therefor, of
any instructions or information that Seller shall require from Buyer to provide any Service
(including any upgraded or changed Service), and Buyer shall provide to Seller such requested
instructions or information in sufficient time for Seller or its Affiliates to provide or procure
such Services. Buyer shall pay any additional costs or expenses resulting from any failure of
Buyer to timely provide such instructions or information requested by Seller.
(c) Seller shall use commercially reasonable efforts to obtain the consent of any licensors of
Software or any other third party that may be required in connection with the provision of any of
the Services hereunder (a “Third Party Consent”); provided, however, that
Seller shall have no obligation to pay money or grant any accommodation to any third party in order
to obtain any such Third Party Consent; provided, further, that if any such third
party refuses to consent to Seller’s provision of Services to Buyer hereunder, Buyer and Seller
shall promptly work together in good faith to determine if Seller can provide such Services or
comparable Services reasonably satisfactory to Buyer by another method or procedure without
requiring such consent; provided, further, that if any such third party refuses to
consent to Seller’s provision of Services to Buyer hereunder and Seller and Buyer are unable to
determine an alternate method or procedure as described in the proviso immediately foregoing,
Seller shall attempt to negotiate a license having a term equal to the shorter of 12 months or the
remaining duration of the applicable Service (a “Short-Term License”). If Seller (i) is
unable to obtain any Third Party Consent for the shorter of 12 months or the remaining duration of
the applicable Service without the payment of a fee to the applicable third party (the “Third
Party Consent Fee”) or (ii) obtains a Short-Term License for a fee (the “Short-Term License
Fee”), then Buyer shall have the option, subject to
Schedule 1(c), to elect to (A) pay any such Third Party Consent Fee or
Short-Term License Fee or (B) terminate any of the applicable Services.
2. Limitation on Services. Except as provided in Section 1(b), Seller shall
have no obligation to upgrade, enhance or otherwise modify any computer hardware, Software or
network environment currently used in the Business or to provide any support or maintenance
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services for any computer hardware, Software or network environment that has been upgraded,
enhanced or otherwise modified by Seller from the computer hardware, Software or network
environments that is currently used in the Business.
3. Additional Services. If Buyer reasonably determines that additional transition
services of the type previously provided by Seller to the Business are necessary to complete the
transition, Seller will consider in good faith providing such services to Buyer. If Seller agrees
to add any additional services (“Additional Services”), representatives of Seller and Buyer
will meet to discuss in good faith the terms and conditions (including cost) upon which such
Additional Services will be provided. Any such Additional Services mutually agreed to and the fees
thereof shall be effective as of the date of execution of an amendment to this Agreement by duly
authorized representatives of the parties hereto. It is understood and agreed that Seller shall be
under no obligation to provide or procure any such Additional Services requested by Buyer.
4. Subcontractors. Seller may, directly or through one or more Affiliates, hire or
engage one or more subcontractors or other third parties (each, a “Subcontractor”) to
perform any or all of its obligations under this Agreement; provided, that: (a) Seller
remains ultimately responsible under this Agreement, including for ensuring that the obligations
with respect to the nature, quality and standards of care set forth in Section 1 are
satisfied with respect to any Service provided by any Subcontractor; (b) the use of any
Subcontractor will not increase any fees payable by Buyer hereunder; and (c) the use of any
Subcontractor will not adversely affect the quality or timeliness of delivery of any Service
provided to Buyer.
5. Title to Seller Equipment; Management and Control; SOA.
(a) All procedures, methods, systems, strategies, tools, equipment, facilities and other
resources used by Seller, any of its Affiliates or any third party service provider in connection
with the provision of Services hereunder (collectively, the “Seller Equipment”) shall
remain the property of Seller, its Affiliates or such third party service provider and, except as
otherwise provided herein, shall at all times be under the sole direction and control of Seller,
its Affiliates or such third party service provider.
(b) Except as otherwise provided herein, management of, and control over, the provision of the
Services (including the determination or designation at any time of the Seller Equipment, employees
and other resources of Seller, its Affiliates or any third party service provider to be used in
connection with the provision of the Services) shall reside solely with Seller. Without limiting
the generality of the foregoing, all labor matters relating to any employees of Seller, its
Affiliates and any third party service provider shall be within the exclusive control of such
parties, and Buyer shall take no action affecting, or have any rights with respect to, such
matters. Seller shall be solely responsible for the payment of all salary and benefits and all
income tax, social security taxes, unemployment compensation, tax, workers’ compensation tax, other
employment taxes or withholdings and premiums and remittances with respect to employees of Seller
and its Affiliates used to provide Services.
(c) In connection with any obligations of Seller or any of its Affiliates to a third party,
Seller shall not permit any lien or other encumbrance to be placed upon any assets or
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other materials owned by Buyer or any of its Affiliates that are transported, shipped,
warehoused or otherwise held in the custody of Seller or any of its Affiliates on behalf of Buyer.
(d) No more than once annually Seller shall, subject to Seller’s site safety, and
confidentiality and security procedures, provide to Buyer’s third-party auditors and Buyer’s
internal audit staff access to: (i) any facility at which the Services are being performed; (ii)
appropriate Seller management personnel and Subcontractors; and (iii) the data and records (and
other documentation reasonably requested by Buyer) maintained by Seller with respect to the
Services, in each case solely for the purpose of performing audits and inspections of Buyer and its
businesses to enable Buyer to meet its requirements under Section 404 of the Xxxxxxxx-Xxxxx Act of
2002.
6. Billing and Payment.
(a) Buyer shall promptly pay any bills and invoices that it receives from Seller or its
Affiliates for Services provided under this Agreement, subject to receiving, if requested, any
appropriate support documentation for such bills and invoices. Such charges shall be billed within
five (5) business days of the end of each calendar month. Unless otherwise provided herein or on
Annex A, Buyer shall pay all invoices by wire transfer of immediately available funds in
accordance with the instructions provided by Seller or any of its Affiliates (in writing to Buyer),
as applicable, not later than thirty (30) days following receipt by Buyer of Seller’s or any of its
Affiliates’ invoice. Buyer shall not offset any amounts owing to it by Seller or any of Seller’s
Affiliates against amounts payable by Buyer hereunder or under any other agreement or arrangement.
Should Buyer dispute any portion of any invoice, Buyer shall promptly notify Seller in writing of
the nature and basis of the dispute.
(b) If Buyer fails to pay the full amount of any invoice within thirty (30) days after the
relevant payment date, such failure shall be considered a material breach of this Agreement (except
to the extent of any invoiced amounts reasonably disputed by Buyer in good faith and of which
dispute Buyer has notified Seller in accordance with the requirements of this Agreement) and if at
any time the aggregate amount of such overdue unpaid invoices (except to the extent of any invoiced
amounts reasonably disputed by Buyer in good faith) exceeds $250,000, Seller may, without
liability, suspend its obligations hereunder to provide any and all of the Services to Buyer until
such time as such invoices have been paid in full (except to the extent of any invoiced amounts
reasonably disputed by Buyer in good faith and of which dispute Buyer has notified Seller in
accordance with the requirements of this Agreement). The remedy provided to Seller by this
Section 6(b) shall be without limitation of any other applicable provisions of this
Agreement, including Sections 6(d) and 7.
(c) All charges and fees to be paid by Buyer to Seller and its Affiliates under this Agreement
are exclusive of any applicable taxes required by law to be collected from Buyer (including
withholding, sales, use, excise or services taxes, which may be assessed on the provision of the
Services hereunder). If a withholding, sales, use, excise or services tax is assessed on the
provision of any of the Services provided under this Agreement, Buyer shall pay directly, reimburse
or indemnify Seller and its Affiliates for such tax. The parties shall cooperate with each other
in determining the extent to which any tax is due and owing under the circumstances, and shall
provide and make available to each other any resale certificate,
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information regarding out-of-state use of materials, services or sale, and other exemption
certificates or information reasonably requested by the other party.
(d) All payments required to be made pursuant to this Agreement shall bear interest from and
including the date five (5) days after such payment is due to but excluding the date of payment at
an annual rate equal to the average daily one-month LIBOR rate in effect during the period, plus
150 basis points, from the date such interest begins to accrue to the payment date (except to the
extent of any invoiced amounts reasonably disputed by Buyer in good faith in accordance with this
Agreement, in which case no late fee shall be payable by Buyer in respect of any portion of such
disputed amount resolved in Buyer’s favor). Such interest shall be payable at the same time as the
payment to which it relates and shall be calculated on the basis of the number of days (excluding
the payment date) by which the payment date follows the date such payment is due.
7. Term of Agreement; Termination.
(a) This Agreement shall commence on the Effective Date and shall continue (unless sooner
terminated pursuant to the terms hereof) for the period during which Seller is providing Services
hereunder, or such shorter period as may be specified on Annex A with respect to any
particular Service. In the event that Buyer desires to renew any Services beyond the date at which
they terminate pursuant to Section 1(a), Buyer shall notify Seller of such desire to renew
any such Services at least sixty (60) days’ prior to the expiration of the initial service period
for such Services as set forth on Annex A, except with respect to the renewal of the (a)
Information Technology Service, for which Buyer must provide at least 180 days’ prior written
notice to Seller in order to renew and (b) the Credit Operations Service, for which Buyer must
provide at least 120 days’ prior written notice to Seller in order to renew. Buyer shall be
entitled to renew any particular Service in monthly increments for a renewal period not to exceed
the lesser of (i) 50% of the initial service period set forth on Annex A or (ii) six (6)
months. Neither Seller nor any of its Affiliates shall be obligated to provide Services on behalf
of Buyer following the expiration or earlier termination of this Agreement or any particular
Service.
(b) Buyer may terminate this Agreement at any time upon written notice to Seller in the event
of a material breach of this Agreement by Seller. Such termination shall become effective thirty
(30) days from the date of Seller’s receipt of such notice unless the breach is cured prior to the
end of said 30-day period.
(c) Seller may terminate this Agreement at any time upon written notice to Buyer in the event
of a material breach of this Agreement by Buyer. Such termination shall become effective thirty
(30) days from the date of Buyer’s receipt of such notice unless the breach is cured prior to the
end of said 30-day period; provided, that if such breach relates to the non-payment by
Buyer of any fees or expenses under Section 6, then termination under this Section
7(c) shall be effective fifteen (15) days from the date of receipt of notice of breach from
Seller unless all unpaid fees or expenses have been paid in full within such 15-day period (except
to the extent of any invoiced amounts reasonably disputed by Buyer in good faith and of which
dispute Buyer has notified Seller in accordance with the requirements of this Agreement).
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(d) Notwithstanding any other provision in this Agreement to the contrary, if this Agreement
is terminated by Seller or any particular Service is terminated by Buyer pursuant to Section
8, Buyer shall remain liable for (i) the payment of fees and expenses accruing for the period
prior to termination even though such fees may not become due until after termination and (ii) 50%
of the monthly fees associated with all of the Services (in the case of a termination of the
Agreement) or 50% of the monthly fees associated with any particular Service (in the case of a
partial termination pursuant to Section 8), in each case as specified on Annex A,
from the termination date through the end of the initial service period or the renewal period, as
the case may be. Further, in the event of termination of this Agreement pursuant to this
Xxxxxxx 0, Xxxxxxxx 0(x), 0(x), 0(x), 0(x)-(x), 7,
9, 11, 12 and 14 through 23 shall continue in full force
and effect.
(e) Provided that Buyer has met and continues to meet its obligations set forth in Section
6, prior to the termination of this Agreement, Seller shall cooperate with Buyer as reasonably
requested by Buyer to effect an orderly transition of the Services provided hereunder and shall use
commercially reasonable efforts to assist Buyer to complete the transition as promptly as
practicable. The parties agree to cooperate in good faith and to use their commercially reasonable
efforts to mutually develop a conversion plan to effect the orderly transition of the Services from
Seller’s systems to Buyer’s systems. Buyer agrees to pay Seller for such conversion services on
the basis of Seller’s direct costs, administrative support costs and costs associated with special
requests.
8. Partial Termination. Subject to Section 7(e), Buyer may terminate any and
all of the Services, effective as of the last day of an accounting month of Seller, at any time
prior to the expiration of the period specified on Annex A (including any renewal period)
upon at least sixty (60) days prior written notice to Seller, except with respect to the (i)
Information Technology Service which may be terminated by Buyer only upon at least 180 days’ prior
written notice to Seller and (ii) Credit Operations Service which may be terminated by Buyer only
upon at least 120 days’ prior written notice to Seller. As soon as reasonably practicable
following receipt of any such notice, Seller shall advise Buyer in writing as to whether
termination of such Services shall reasonably require the termination or partial termination of, or
otherwise affect the provision of, any other Services. If such is the case, Buyer may withdraw its
termination notice in writing within five (5) days of being so advised by Seller. Otherwise, such
termination shall be final.
9. Confidentiality. Each party shall, and shall cause each of its Affiliates and each
of its and their officers, directors and employees to, hold all information relating to the
business of the other party disclosed to it by reason of this Agreement (the “Confidential
Information”) confidential, and shall not disclose or permit to be disclosed any such
Confidential Information to any third party unless legally compelled to disclose such information;
provided, however, that to the extent that a Person receiving Confidential
Information hereunder may receive the written advice of outside counsel that disclosure of any
Confidential Information is required in order that such Person not commit a violation of law, such
Person: (a) to the extent not inconsistent with such Person’s obligation to disclose, will give the
other party hereto prompt notice of such request so that such party may seek an appropriate
protective order; (b) may only disclose such information if it shall first have used commercially
reasonable efforts to obtain an appropriate protective order or other satisfactory assurance of
confidential treatment for the
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information required to be so disclosed; and (c) if such protective order or other remedy is
not obtained, or the other party waives such Person’s compliance with the provisions of this
Section 9, shall only furnish that portion of the Confidential Information which is legally
required to be so disclosed. As used herein, “Confidential Information” does not include
any information that: (i) is or becomes generally available to the public or the retail industry
other than as a result of a disclosure, directly or indirectly, by the party receiving the
Confidential Information; (ii) was available to the receiving party on a non-confidential basis
prior to its disclosure by the disclosing party or becomes available to the receiving party on a
non-confidential basis, in each case from a source other than the disclosing party or its
representatives, which source was not itself known to be bound by a confidentiality agreement with
the disclosing party or its representatives and had not, to the knowledge of the receiving party,
received such information, directly or indirectly, from a third party so bound or (iii) such party
demonstrates is or was independently developed by or on behalf of a party without the direct or
indirect use of any of the other party’s Confidential Information.
10. Third Party Non-Disclosure Agreements. To the extent that any third party
proprietor of information or Software to be disclosed or made available to Buyer in connection with
performance of the Services hereunder requires a specific form of non-disclosure agreement as a
condition of its consent to use of the same for the benefit of Buyer or to permit Buyer access to
such information or Software, Buyer shall execute (and shall cause Buyer’s employees to execute, if
required) any such form; provided, that Buyer shall not be required to execute and deliver any such
form of agreement not reasonably acceptable to Buyer (it being understood that if Buyer refuses to
execute any such form, Seller shall be under no obligation to permit Buyer access to such
information or Software or to provide any Services to Buyer to the extent the provision of such
Services requires the use of the information or Software of the applicable third party proprietor).
11. Limitation of Liability; Disclaimer; Indemnity.
(a) Other than in the case of fraud, willful misconduct or gross negligence, neither party nor
any of their respective Affiliates shall be liable to the other party, its Affiliates or any third
party for any special, incidental, consequential (including loss of revenues or profits), exemplary
or punitive damages arising from any claim relating to this Agreement or any of the Services to be
provided hereunder or the performance of or failure to perform such party’s obligations under this
Agreement, whether such claim is based on warranty, contract, tort (including negligence or strict
liability) or otherwise, all of which are hereby excluded by agreement of the parties regardless of
whether or not any party to this Agreement has been advised of the possibility of such damages.
Notwithstanding anything in this Agreement to the contrary, Seller shall be under no obligation to
provide the Services described in this Agreement to the extent that Seller, in its reasonable
discretion, determines that to do so would conflict with, violate or breach its obligations under
any license or other agreement to which either Seller or any of its Affiliates is bound. EXCEPT AS
SPECIFICALLY SET FORTH HEREIN, SELLER SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE WARRANTIES
OF MERCHANTABILITY, FITNESS FOR PURPOSE AND NON-INFRINGEMENT. Notwithstanding the foregoing, other
than in the case of fraud, willful misconduct or gross negligence, Seller’s cumulative aggregate
liability to
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Buyer and its Affiliates under this Agreement shall not exceed the amount of fees paid by
Buyer to Seller pursuant to this Agreement during the six (6) months prior to the date of such
failure with respect to the Service(s) that is the subject of the dispute; provided, that,
if the date of such failure occurs prior to the first 6-month anniversary of the date of this
Agreement, Seller’s aggregate liability shall not exceed an amount equal to the good faith estimate
of the fees to be paid during the first six (6) months of this Agreement with respect to the
Service(s) that is the subject of the dispute, which estimate shall be based on the aggregate
amount of fees received by Seller pursuant hereto at the time of such failure with respect to such
Service(s). Notwithstanding anything contained herein to the contrary, the limitations set forth
in this Section 11(a) shall not apply with respect to any breach of Section 9.
(b) Buyer shall indemnify Seller and each of its Affiliates against all Losses and Expenses
attributable to any third party claims arising from or relating to the provision of Services under
this Agreement to the extent that such Losses and Expenses arise from the fraud, willful misconduct
or gross negligence of Buyer, any of its Affiliates or any of their respective employees, officers
or directors.
(c) Seller shall indemnify Buyer and each of its Affiliates against all Losses and Expenses
attributable to any third party claims arising from or relating to the provision of Services under
this Agreement to the extent that such Losses and Expenses arise from the fraud, willful misconduct
or gross negligence of Seller, any of its Affiliates or any of their respective employees, officers
or directors.
(d) All claims for indemnification pursuant to this Section 11 shall be made in
accordance with the procedures set forth in Sections 10.3 and 10.5 of the Purchase Agreement.
Notwithstanding any other provision of this Section 11 or any provision set forth in the Purchase
Agreement, Buyer and its Affiliates shall not be limited in any recovery of Losses or Expenses
under this Agreement by any provision set forth in the Purchase Agreement, and any Losses or
Expenses paid by Seller to Buyer or its Affiliates under this Agreement shall not be counted for
purposes of any aggregate damage limitations set forth in the proviso of Section 10.1(a) of the
Purchase Agreement. In addition, for the avoidance of doubt, no Loss or Expense suffered by Buyer
and its Affiliates pursuant to this Agreement shall be counted for purposes of satisfying the
deductibles set forth in the proviso to Section 10.1(a) of the Purchase Agreement.
12. Relationship of Parties. Except as specifically provided herein, neither party
shall: (a) act or represent or hold itself out as having authority to act as an agent or partner of
the other party; or (b) in any way bind or commit the other party to any obligations or agreement.
Nothing contained in this Agreement shall be construed as creating a partnership, joint venture,
agency, trust, fiduciary relationship or other association of any kind, each party being
individually responsible only for its obligations as set forth in this Agreement. The parties’
respective rights and obligations hereunder shall be limited to the contractual rights and
obligations expressly set forth herein on the terms and conditions set forth herein.
13. Force Majeure. If Seller, any of its Affiliates or any third party service
provider is prevented from or delayed in complying, either totally or in part, with any of the
terms or provisions of this Agreement by reason of fire, flood, storm, strike, walkout, lockout or
other labor trouble or shortage, delays by unaffiliated suppliers or carriers, shortages of fuel,
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power, raw materials or components, any law, order, proclamation, regulation, ordinance,
demand, seizure or requirement of any governmental authority, riot, civil commotion, war,
rebellion, acts of terrorism, nuclear accident or other causes beyond the reasonable control of any
such Person or other acts of God, or acts, omissions or delays in acting by any governmental or
military authority or Buyer, then upon notice to Buyer, the affected provisions and/or other
requirements of this Agreement shall be suspended during the period of such disability and Seller
shall have no liability to Buyer, it Affiliates or any other Person in connection therewith.
Seller and Buyer shall make commercially reasonable efforts to remove such disability within sixty
(60) days after giving notice of such disability; provided, however, that nothing
in this Section 13 will be construed to require the settlement of any strike, walkout,
lockout or other labor dispute on terms which, in the reasonable judgment of Seller, are contrary
to its interest. It is understood that the settlement of a strike, walkout, lockout or other labor
dispute will be entirely within the discretion of Seller. If Seller is unable to provide any of
the Services due to such a disability, each party shall use their commercially reasonable efforts
to cooperatively seek a solution that is mutually satisfactory; provided, that, Buyer shall be
entitled to terminate this Agreement with respect to the provision of any or all of the affected
Services immediately upon the conclusion of the sixty (60) day period provided in the preceding
sentence. In the event that Seller shall fail to perform its obligations hereunder for at least
twenty (20) days with respect to any Service as a consequence of any such force majeure event, then
the monthly fee payable by Buyer with respect to such Service (as set forth on Annex A)
shall be reduced proportionately during the period after such twenty (20) day period and prior to
the time that Seller restores such function or functions.
14. Notices. All notices or other communications required or permitted hereunder
shall be in writing and shall be delivered personally, by facsimile or sent by private courier or
by registered or certified mail, and shall be deemed given when so delivered personally, by
facsimile or by private courier or, if mailed, two business days after the mailing, as follows:
If to Buyer, to:
| The Bon-Ton Stores, Inc. | ||
| 0000 Xxxx Xxxxxx Xxxxxx | ||
| Xxxx, Xxxxxxxxxxxx 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Vice President and General Counsel |
with a copy to:
| Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP | ||
| 0000 Xxxx Xxxxxx | ||
| Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxxx Xxxxxx |
If to Seller, to:
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| Saks Incorporated | ||
| 000 Xxxxxxxxx Xxxxxxx | ||
| Xxxxxxxxxx, Xxxxxxx 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Executive Vice President and General Counsel |
with a copy to:
| Sidley Austin LLP | ||
| Xxx Xxxxx Xxxxxxxx Xxxxxx | ||
| Xxxxxxx, Xxxxxxxx 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxxxxx X. Xxxxx and Xxxx X. Xxxxxxxx |
or to such other address as such party may indicate by a notice delivered to the other party
hereto.
15. Successors and Assigns. The rights of either party under this Agreement shall
not be assignable by such party (other than to an Affiliate of such party) (except by operation of
law in connection with a merger involving, or sale of substantially all of the assets of, such
party) without the prior written consent of the other party not be unreasonably withheld. No
assignment of this Agreement (including to an Affiliate) shall relieve a party of any of its
obligations under this Agreement. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their successors and permitted assigns. Nothing in this Agreement,
expressed or implied, is intended or shall be construed to confer upon any Person other than the
parties and successors and assigns permitted by this Section 15 any right, remedy or claim
under or by reason of this Agreement.
16. Entire Agreement; Amendments. This Agreement and the annexes referred to herein
and the documents delivered pursuant hereto contain the entire understanding of the parties hereto
with regard to the subject matter contained herein or therein, and supersede all other prior
representations, warranties, agreements, understandings or letters of intent between or among any
of the parties hereto (it being understood, however, that the Purchase Agreement and agreements
contemplated thereby set forth certain additional understandings between Seller and Buyer regarding
their relationship after the Closing Date). This Agreement shall not be amended, modified or
supplemented except by a written instrument signed by an authorized representative of each of the
parties hereto.
17. Partial Invalidity. Wherever possible, each provision hereof shall be interpreted
in such manner as to be effective and valid under applicable law, but in case any one or more of
the provisions contained herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating the remainder of
such invalid, illegal or unenforceable provision or provisions or any other provisions hereof,
unless such a construction would be unreasonable.
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18. Waivers. Any term or provision of this Agreement may be waived, or the time for
its performance may be extended, by the party or parties entitled to the benefit thereof. Any such
waiver shall be validly and sufficiently authorized for the purposes of this Agreement if, as to
any party, it is authorized in writing by an authorized representative of such party. The failure
of any party hereto to enforce at any time any provision of this Agreement shall not be construed
to be a waiver of such provision, nor in any way to affect the validity of this Agreement or any
part hereof or the right of any party thereafter to enforce each and every such provision. No
waiver of any breach of this Agreement shall be held to constitute a waiver of any other or
subsequent breach.
19. Execution in Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original instrument, but all of which shall be
considered one and the same agreement, and shall become binding when one or more counterparts have
been signed by each of the parties hereto and delivered to Seller and Buyer.
20. Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York without giving effect to the principles of
conflicts of law thereof except Section 5-1401 of the New York General Obligations Law.
21. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
22. Interpretation. Capitalized terms used in this Agreement and not otherwise
defined herein have the meanings given to such terms in the Purchase Agreement. For purposes of
this Agreement: (a) the words “include,” “includes” and “including” shall be deemed to be followed
by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,”
“hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the
context otherwise requires, references herein (i) to Sections mean the Sections of this Agreement
and (ii) to an agreement, instrument or other document means such agreement, instrument or other
document as amended, supplemented and modified from time to time to the extent permitted by the
provisions thereof and by this Agreement. Headings of Sections are inserted for convenience of
reference only and shall not be deemed a part of or to affect the meaning or interpretation of this
Agreement. This Agreement shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting an instrument or causing any instrument
to be drafted.
23. Annexes. Annex A and Annex B shall be construed with and as an
integral part of this Agreement to the same extent as if it was set forth verbatim herein.
24. Ankeny, Iowa POS Repair Facility. At the expiration or termination of this
Agreement, the parties agree to work together in good faith to divide up in an equitable manner the
then existing equipment at the POS repair facilities in Ankeny, Iowa and Rockford, Illinois between
the Business and the businesses of Seller and its Affiliates. With respect to the personnel in
such facilities, the parties agree to work together in good faith in order to (i) allow
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each party to have a reasonable opportunity to employ or continue the employment of a
sufficient number of employees to support its business and (ii) maximize the employment
opportunities for the personnel in such facilities.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed as of
the date set forth above, all effective as of the Effective Date.
| SAKS INCORPORATED |
||||
| By: | /S/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
| THE BON-TON STORES, INC. |
||||
| By: | /S/ XXXXX X. XXXXXXX | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Senior Vice President, Chief Financial Officer and Principal Accounting Officer |
|||
