EX-99.3 4 eh1800625_ex9903.htm EXHIBIT 99.3
EXHIBIT 99.3
 
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AGENCY AGREEMENT
 
This Agency Agreement (“Agreement”) is made as of April 18, 2018, by and between The Bon-Ton Stores, Inc. and its associated chapter 11 debtors in possession (collectively, “Merchant”),1 on the one hand, and (a) a contractual joint venture comprised of GA Retail, Inc. (“GA”) and Tiger Capital Group, LLC (“Tiger” and collectively with GA, the “Agent”) and (b) Wilmington Savings Fund Society, FSB, as the indenture agent and collateral trustee for the 8.00% second-lien senior secured notes due 2021 (the “Second-Lien Notes”) issued by BTDS, on the other hand (in such capacities, the “Notes Trustee” and collectively with Agent, “Purchaser”).  Purchaser and Merchant are collectively the “Parties.”

Section 1.  Recitals
WHEREAS, on February 4, 2018, the entities comprising Merchant commenced ten voluntary chapter 11 bankruptcy cases (the “Bankruptcy Cases”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”).
WHEREAS, pursuant to an order of the Bankruptcy Court entered on February 6, 2018 [D.I. 105], the Bankruptcy Cases are being jointly administered under the caption In re The Bon-Ton Stores, Inc., et al., Lead Case No. 18-10248-MFW (Bankr. D. Del.).
WHEREAS, on March 12, 2018, the Bankruptcy Court entered an order (the “Bidding Procedures Order”) [D.I. 348] that, among other relief, approved bidding procedures (the “Bidding Procedures”) for and scheduled a hearing (the “Sale Approval Hearing”) on the approval of the sale of all or substantially of Merchant’s assets.
WHEREAS, on March 12, 2018, the Bankruptcy Court entered an order (the “Final DIP Order”) [D.I. 352] authorizing Merchant to obtain postpetition secured debtor-in-possession financing on a final basis.
WHEREAS, an ad hoc group of holders of $251,325,000 in principal amount of the Second-Lien Notes (the “Second Lien Noteholders”) has issued a direction to the Notes Trustee to credit bid (the “Credit Bid”) $125,000,000 of its claims under the indenture governing the Second-Lien Notes (the “Notes Claims”) as consideration under this Agreement and the Notes Trustee has made the Credit Bid.
WHEREAS, Merchant operates retail stores and desires that the Agent act as Merchant’s exclusive agent for the purposes of:
(a)
selling all of the Merchandise (as hereinafter defined) from Merchant’s retail store locations identified on Exhibit 1(a)(1) attached hereto (each a “Store” and collectively the “Stores”) and distribution centers (including e-commerce


1
Merchant consists of The Bon-Ton Stores, Inc.; The Bon-Ton Department Stores, Inc. (“BTDS”); The Bon-Ton Giftco, LLC; Carson Pirie Scott II, Inc.; Bon-Ton Distribution, LLC; McRIL, LLC; Bonstores Holdings One, LLC; Bonstores Realty One, LLC; Bonstores Holdings Two, LLC; and Bonstores Realty Two, LLC.
 
 

 
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facilities) identified on Exhibit 1(a)(2) attached hereto (each a “Distribution Center” and collectively, the “Distribution Centers”) by means of a “going out of business,” “store closing,” “sale on everything,” “everything must go,” or similar sale as described further below (the “GOB Sale”), with the nature and manner of advertising the GOB Sale being in Agent’s sole discretion, subject to the terms and conditions of this Agreement and the Sale Guidelines and Approval Order (each as defined below);
(b)
marketing and selling, or otherwise designating the purchasers of, the furniture, furnishings, trade fixtures, machinery, equipment, office supplies, Supplies (as defined below), conveyor systems, racking, rolling stock, and other tangible personal property (collectively, “FF&E”) owned by Merchant, wherever located (“Owned FF&E”);
(c)
designating the assignees of any or all of Merchant’s unexpired leases of non-residential real property (together with all amendments, extensions, modifications, and other material documents related thereto, each a “Lease” and all such Leases collectively, the “Leases”) and executory contracts (together with all amendments, extensions, modifications, and other material documents related thereto, each a “Contract” and all such Contracts collectively, the “Contracts”), in each case excluding any Leases or Contracts that may be rejected as permitted and in accordance with the procedures under the Approval Order (defined below) and subject to the assumption and assignment procedures to be incorporated into the Approval Order;
(d)
marketing and selling, and/or otherwise designating the purchasers and/or assignees of any or all real property owned by Merchant (the “Owned Real Estate”), including but not limited to the real property identified on Exhibit 1(d) annexed hereto;
(e)
marketing and selling, and/or otherwise designating the purchasers, assignees, and/or licensees of any or all intellectual property owned by Merchant (the “Intellectual Property”), including but not limited to the intellectual property identified on Exhibit 1(e) annexed hereto, provided that, the disposition of any Intellectual Property that would result in the sale or lease of personally identifiable information (as such term is defined in section 101(41A) of the Bankruptcy Code) shall be subject to a determination made by a consumer privacy ombudsman appointed in Merchant’s chapter 11 cases; and
(f)
marketing and selling, and/or otherwise designating the purchasers, licensees, and/or assignees of any or all of Merchant’s other real and tangible and intangible personal property (the “Other Assets” and, collectively with the Merchandise, the Owned FF&E, all Leases, all Contracts, the Owned Real Estate, and the Intellectual Property, the “Assets”).  For the avoidance of doubt, the Other Assets include but are not limited to all cash on hand and in the Debtors’ retail store locations, cash in transit, cash in bank accounts, Merchant’s interest in and rights with respect to cash posted as collateral for letters of credit, receivables (including
 
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credit card receivables), deposits, security deposits, credit card processing float, proceeds of retail sales in all of the Debtors’ retail store locations from and after the date of this Agreement to the extent not used to pay down the DIP Obligations (as defined in the Final DIP Order), claims and causes of action arising under chapter 5 of the Bankruptcy Code and similar state law (“Avoidance Actions”), and all other claims and causes of action, including but not limited to commercial tort claims, based on facts and circumstances existing as of the Closing, whether or not theretofore discovered or asserted (“Other Causes of Action”).  Notwithstanding the foregoing, the Assets shall not include (a) the Consulting Agreement by and between Merchant and a joint venture comprised of Hilco Merchant Resources, LLC and Gordon Brothers Retail Partners, LLC (the “Phase 1 Consultant”), dated January 29, 2018 (the “Phase 1 Liquidation Agreement”), which shall not be subject to the Lease/Contract Designation Rights (as defined below) or otherwise assumed by Purchaser or (b) the proceeds from the sale of Additional Agent Goods (as defined in the Phase 1 Liquidation Agreement) pursuant to the Phase 1 Liquidation Agreement, other than the “Additional Agent Goods Fee” due to Merchant under the Phase 1 Liquidation Agreement.  Merchant shall not reject or amend the Phase 1 Liquidation Agreement without the express written consent of Purchaser.  For the avoidance of doubt, all Net Proceeds, less the Consulting Fee, plus the Additional Agent Goods Fee (each as defined in the Phase 1 Liquidation Agreement) shall constitute Assets under this Agreement and shall be remitted to Purchaser pursuant to the terms hereof.
WHEREAS, the Official Committee of Unsecured Creditors appointed in the Bankruptcy Cases (the “Committee”) filed an adversary proceeding (the “Adversary Proceeding”) on March 29, 2018 seeking, among other relief, to avoid certain liens securing the Notes Claims.
NOW, THEREFORE, in consideration of the Purchase Price (defined below) and the mutual covenants and agreements set forth in this Agreement, the Parties hereby agree as follows:
Section 2.  Appointment of Agent/Approval Order.  Consistent with the Bidding Procedures and as soon as practicable after full execution of this Agreement, Merchant shall file in the Bankruptcy Cases a proposed form of order (the “Approval Order”) in a form reasonably satisfactory to Merchant and Purchaser.  At the Sale Approval Hearing, Merchant shall seek entry of the Approval Order as the “Sale Order,” as that term is used in the Bidding Procedures Order.  The Approval Order shall, among other things:
(a)            find that:
(i)
this Agreement is in the best interest of Merchant, its estate and creditors, and other parties in interest
(ii)
the Parties entered into this Agreement in good faith pursuant to Section 363(m) of the Bankruptcy Code and without collusion as described in Section 363(n) of the Bankruptcy Code;
 
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(iii)
time is of the essence in effectuating this Agreement and proceeding with the GOB Sale at the Stores uninterrupted;
(iv)
Merchant’s decisions to (a) enter into this Agreement and (b) perform its obligations under this Agreement are a reasonable exercise of Merchant’s sound business judgment consistent with its fiduciary duties and is in the best interests of Merchant, its estate, its creditors, and other parties in interest; and
(v)
this Agreement was negotiated in good faith and at arms’ length and Purchaser is entitled to the protection of section 363(m) and 364(e) of the Bankruptcy Code; and
(b)            order, adjudge, and decree that:
(i)
this Agreement and all of the transactions contemplated hereby are approved in their entirety;
(ii)
the Parties are authorized to continue to take any and all actions as may be necessary or desirable to implement this Agreement and each of the transactions contemplated hereby;
(iii)
following the occurrence of the closing under this Agreement, which shall occur no later than April 19, 2018 (the “Closing”), subject to payment of the Cash Purchase Price (as defined below) and Purchaser’s compliance with its other obligations hereunder, Agent shall have the exclusive right to market and sell, and/or otherwise designate the purchasers, licensees, and/or assignees of, any or all of the Assets free and clear of all liens, claims, and encumbrances thereon without further order of the Bankruptcy Court;
(iv)
the sale, license, transfer, or other conveyance of any Assets (other than the Assets being sold pursuant to the GOB Sale, as to which no further notice shall be required) reflected in notices filed in the Bankruptcy Cases from time to time by the Agent, substantially in the form annexed hereto as Exhibit 2(b)(iv) (each an “Asset Designation Notice”), shall be automatically effective on the date reflected in the applicable Asset Designation Notice and subject to the satisfaction of any closing conditions reflected therein, and the sale or other conveyance of such Assets shall be free and clear of all liens, claims, and encumbrances without further order of the Bankruptcy Court, provided, however, that nothing in the Approval Order shall inhibit the ability of Agent to seek other or further orders of the Court in connection with the sale or other disposition of any Assets;
(v)
the form of Asset Designation Notice is approved;
 
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(vi)
subject to Agent’s compliance with its payment obligations under this Agreement and the Approval Order, Agent is authorized to execute, in the name of and as agent for Merchant, any and all deeds, bills of sale, and other instruments or documents necessary to effectuate the sale, transfer, or other conveyance of any of the Assets;
(vii)
following the payment of the Cash Purchase Price but subject to Agent’s obligation to pay Expenses and fund the Wind-Down Payment pursuant to the Wind-Down Budget (as defined below), all proceeds (cash or otherwise) of any of the Assets except as otherwise set forth in this Agreement (“Proceeds”), including but not limited to all Proceeds arising from the sale, lease, licensing, assignment, or other disposition of any of the Assets, shall be the sole property of Purchaser, and Purchaser shall be entitled to retain all Proceeds for its own account, subject to further distribution among the entities comprising Purchaser pursuant to any agreements between the entities comprising Purchaser and the Second Lien Noteholders;
(viii)
the Wind-Down / Expense Advance shall be deemed held in escrow for the exclusive purpose of paying (1) Expenses (as defined below) and (2) administrative expenses and other amounts pursuant to and solely as reflected in the Wind-Down Budget (provided that such payments may be made from the Wind-Down / Expense Advance as and when due without further order of the Court or action by any Party), and shall not be used for any other purpose without the express written consent of Agent in its sole discretion;
(ix)
following the occurrence of the Closing, subject to Agent’s obligation to pay Expenses and fund the Wind-Down Payment, Merchant and any trustee appointed in the Bankruptcy Cases or any successor cases thereto shall hold the Assets (other than the Assets being sold through the GOB Sale and the Wind-Down / Expense Advance) strictly in trust for the benefit of Purchaser and, as such, the Assets shall not constitute property of Merchant’s bankruptcy estate pursuant to and consistent with 11 U.S.C. § 541(b)(1) at any time following the Closing;
(x)
following the payment of the Cash Purchase Price but subject to Agent’s obligation to pay Expenses and fund the Wind-Down Payment, any Proceeds received by, or otherwise in the possession of, Merchant at any time shall be segregated and held strictly in trust for the benefit of Purchaser, shall not be commingled with Merchant’s own assets, and, as such, shall not become property of Merchant’s bankruptcy estate pursuant to and consistent with 11 U.S.C. §541(b)(1), and shall be paid over to Purchaser immediately;
(xi)
upon the payment of the Cash Purchase Price, and solely to the extent that any Assets or Proceeds are, notwithstanding the Approval Order,
 
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subsequently determined to constitute property of Merchant’s estate, but subject to Agent’s obligation to pay Expenses and fund the Wind-Down Payment, Purchaser shall have a senior lien on such Assets and all Proceeds thereof, which lien is deemed automatically perfected, provided that nothing in the Approval Order shall inhibit Purchaser’s ability, and the Approval Order shall expressly authorize Purchaser, to take any action Purchaser deems appropriate to perfect and enforce such lien;
(xii)
upon the payment of the Cash Purchase Price and subject to Agent’s obligation to pay Expenses and fund the Wind-Down Payment, until all Assets have been sold or otherwise disposed of, and solely to the extent that any Assets or Proceeds are, notwithstanding the Approval Order, subsequently determined to constitute property of Merchant’s estate, Purchaser shall have a superpriority administrative expense claim against Merchant to the extent of any amounts owing from Merchant to Purchaser in connection with this Agreement, including as a result of any breach of this Agreement and/or as a result of any Proceeds being in Merchant’s possession;
(xiii)
the Lease/Contract Designation Rights are approved, and Purchaser is authorized to designate the assignees of any or all of the Contracts and Leases pursuant thereto;
(xiv)
at any time (i) with respect to any unexpired real estate Lease under which Merchant is lessee, prior to the earlier to occur of (1) September 2, 2018 and (2) expiration of such Lease by its terms or the rejection thereof, and (ii) with respect to all other Contracts and Leases, prior to the earlier to occur of (1) December 31, 2018, and (2) rejection thereof (the shortest of the foregoing periods applicable to a particular Contract or Lease is the “Designation Rights Period” applicable to that Contract or Lease), Purchaser shall have the exclusive right, which right may be exercised at any time and from time to time, to file a notice in the Bankruptcy Cases (each such notice, a “Lease/Contract Assumption Notice”) substantially in the form annexed hereto as Exhibit 2(b)(xiii) designating the assignee of any one or more Leases and/or Contracts and setting forth the proposed cure amount due pursuant to section 365 of the Bankruptcy Code (each a “Cure Amount”);
(xv)
the counterparties to the Leases or Contracts identified in any Lease/Contract Assumption Notice shall have twenty-one days to object to the proposed assumption and assignment;
(xvi)
if no objection to the proposed assumption and assignment of a Lease or Contract is timely received, such Lease or Contract shall, upon payment of the applicable cure payment, if any, to the applicable
 
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counterparty, automatically be deemed assigned to and assumed by the assignee identified in the Lease/Contract Assumption Notice pursuant to section 365 of the Bankruptcy Code, without further order of the Bankruptcy Court or further action by any person or entity;
(xvii)
if an objection to the proposed assumption and assignment of a Lease or Contract is timely received, such Lease or Contract shall not be assumed or assigned until such objection is resolved by agreement of the applicable counterparty or order of the Bankruptcy Court;
(xviii)
the designee under any Lease/Contract Assumption Notice shall be required, if requested by the applicable counterparty, to provide adequate assurance of future performance with respect to such Lease or Contract if the applicable counterparty so requests;
(xix)
pursuant to section 365(k) of the Bankruptcy Code, neither Merchant nor any other Party shall have any further obligation under any Lease or Contract after assumption and assignment thereof pursuant to the Lease/Contract Designation Rights;
(xx)
in addition to the Lease/Contract Designation Rights, Purchaser shall have the right, upon written notice to Merchant and as reflected in notices filed in the Bankruptcy Cases from time to time, direct Merchant to reject any Lease or Contract as specified by Purchaser;
(xxi)
at the Closing, all funds held in escrow by Wilmington Trust, National Association (“WT”) pursuant to that certain Escrow Agreement dated as of March 5, 2018 by and among the members of Agent, the Second Lien Noteholders, and WT shall be released at the Closing for application to the Cash Purchase Price;
(xxii)
Agent shall have the exclusive right to use the Stores and all other Assets for the purpose of conducting the GOB Sale, free of any interference from any entity or person, subject to compliance with the Sale Guidelines (as defined below) and Approval Order;
(xxiii)
Agent, as the exclusive agent for Merchant, is authorized to conduct, advertise, post signs, utilize sign-walkers, and otherwise promote the GOB Sale as a “going out of business”, “store closing”, “sale on everything”, “everything must go”, or similar themed sale, in accordance with the Sale Guidelines (as the same may be modified and approved by the Bankruptcy Court), subject to compliance with the Sale Guidelines, the Approval Order, and all applicable federal, state, and local laws, regulations and ordinances, including, without limitation, all laws and regulations relating to advertising, privacy, consumer protection, occupational health and safety and the environment, together with all applicable statutes, rules, regulations and
 
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orders of, and applicable restrictions imposed by, governmental authorities (collectively, the “Applicable General Laws”), other than all applicable laws, rules and regulations in respect of “going out of business”, “store closing” or similar-themed sales and permitting (collectively, the “Liquidation Sale Laws”);
(xxiv)
Agent is authorized to conduct the GOB Sale notwithstanding any Liquidation Sale Laws;
(xxv)
so long as the GOB Sale is conducted in accordance with the Sale Guidelines and the Approval Order and in a safe and professional manner, Purchaser shall be deemed to be in compliance with any Applicable General Laws;
(xxvi)
Agent is granted a limited license and right to use all Intellectual Property for purposes of conducting the GOB Sale and otherwise marketing any or all of the Assets;
(xxvii)
unless otherwise ordered by the Bankruptcy Court, all newspapers and other advertising media in which the GOB Sale is advertised shall be directed to accept the Approval Order as binding and to allow the Parties to consummate the transactions provided for in this Agreement, including, without limitation, conducting and advertising the GOB Sale in the manner contemplated by this Agreement;
(xxviii)
unless otherwise ordered by the Bankruptcy Court, all utilities, landlords, creditors, and other interested parties and all persons acting for or on their behalf shall not interfere with or otherwise impede the conduct of the GOB Sale, or institute any action in any forum other than the Bankruptcy Court that in any way directly or indirectly interferes with or obstructs or impedes the conduct of the GOB Sale;
(xxix)
the Bankruptcy Court retains exclusive jurisdiction over the enforcement and interpretation of, and over and all matters arising from, this Agreement;
(xxx)
Merchant is directed to provide weekly reporting to Agent of all amounts expended for Expenses and pursuant to the Wind-Down Budget;
(xxxi)
Merchant shall make its books and records available to Purchaser at all times;
(xxxii)
Purchaser shall not be liable for any claims against Merchant except as expressly provided for in this Agreement;
 
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(xxxiii)
all payments made by Merchant from the Wind-Down Payment shall be made pursuant to, and solely in accordance with, the Wind-Down Budget;
(xxxiv)
Purchaser shall neither have nor incur any obligation to advance or fund any amounts to or for Merchant except as set forth in this Agreement and the Wind-Down Budget;
(xxxv)
any amendment to or other modification of the Wind-Down Budget shall only be effective upon approval by Purchaser in its sole discretion;
(xxxvi)
Agent is authorized to sell the Additional Agent Merchandise on the terms set forth herein, subject to the Sale Guidelines;
(xxxvii)
following the occurrence of the Closing, the Adversary Proceeding is deemed dismissed with prejudice;
(xxxviii)
following the occurrence of the Closing, neither the Debtor nor any other entity acting on its behalf or as its successor (including but not limited to the Committee and any chapter 7 or 11 trustee) may recover from the Notes Trustee or any holders of Second-Lien Notes any costs or expenses of preserving, or disposing of, any of the collateral securing Merchant’s obligations under the Indenture and the Second-Lien Notes pursuant to section 506(c) of the Bankruptcy Code;
(xxxix)
Purchaser and its designees are granted derivative standing to pursue the Avoidance Actions (subject to section 11.2(f) below) and Other Causes of Action in the name of and/or on behalf of Merchant;
(xl)
in the event any of the provisions of the Approval Order are modified, amended or vacated by a subsequent order of the Bankruptcy Court or any other court, Purchaser shall be entitled to the protections provided in Bankruptcy Code sections 363(m) and 364(e) and, no such appeal, modification, amendment or vacatur shall affect the validity and enforceability of the GOB Sale or the liens or priority authorized or created under this Agreement or the Approval Order;
(xli)
neither Purchaser nor any entity comprising Purchaser is or shall be a mere continuation of Merchant or otherwise subject to successor liability in connection with any of the Assets;
(xlii)
upon receipt by the DIP Administrative Agent (as defined in the Final DIP Order) and certain other persons as directed in the Payoff Letter (as defined below) of the DIP Payoff (as defined below) pursuant to Section 3.1(a) of this Agreement, all ongoing commitments under the DIP Credit Agreement (as defined in the Final DIP Order) shall be canceled and terminated;
 
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(xliii)
to the extent Purchaser has not designated the purchaser or other assignee of any Assets (the “Residual Assets”) as of December 31, 2018 (as may be extended by written agreement of the Parties, the “Designation Rights Termination Date”), (1) ownership of all cash (on hand, in the bank, in transit, or otherwise), credit card processing float, accounts receivable, notes receivable, credit card receivables, other receivables, deposits, security deposits, proceeds of retail sales in all of the Debtors’ retail store locations, rights to refunds, other rights to payment, and Intellectual Property comprising Residual Assets shall vest in Purchaser or its nominee and (2) ownership of all other Residual Assets shall revert to the Debtors’ estates, each on the Designation Rights Termination Date; and
(xliv)
this Agreement, the Approval Order, and all provisions hereof and thereof are binding on any successor to Merchant, including but not limited to any chapter 7 or chapter 11 trustee, and subject to Agent’s obligation to pay Expenses and fund the Wind-Down Payment, any such successor shall continue to hold all Assets and Proceeds strictly in trust for the benefit of Purchaser.
Section 3.  Consideration to Merchant and Agent.
3.1            Purchase Price.  The aggregate consideration being provided to Merchant in exchange for Purchaser’s rights and Merchant’s obligations under this Agreement is as follows (collectively, the “Purchase Price), which shall be allocated among the Assets in accordance with Purchaser’s bid letter dated April 4, 2018:
(a)            Cash Purchase Price.  At the Closing and subject to the receipt of a payoff letter (the “Payoff Letter”) in form and substance satisfactory to the DIP Administrative Agent, Agent shall (i) pay to the DIP Administrative Agent, for the benefit of the DIP Lenders, and certain other persons as directed in the Payoff Letter, the amount in cash (the “DIP Payoff”) necessary to (1) indefeasibly pay the Pay-Off Amount (plus any Per Diem Interest) (as each such term is defined in the Payoff Letter), which amount shall include all DIP Obligations, including, without limitation, all outstanding principal, accrued interest, fees (including, without limitation, the outstanding Pre-Petition Tranche A Prepayment Premium and the Pre-Petition Specified Tranche A-1 Prepayment Premium (as each such term is defined in the DIP Credit Agreement)), costs and expenses (including, without limitation, all attorneys’ fees, costs and expenses), (2) cash collateralize outstanding letters of credit in accordance with the DIP Credit Agreement, and (3) fund the DIP Indemnity Account in accordance with Paragraph 36 of the Final DIP Order, (ii) fund the Carve Out Account in the amount of $15,800,000 in accordance with the last two sentences of Paragraph 39(c) of the Final DIP Order to be held in escrow in the trust account of Young Conaway Stargatt & Taylor LLP, all as set forth in the Payoff Letter, and (iii) pay $3,000,000 to Merchant to provide liquidity for outstanding checks.  Together, items (i), (ii), and (iii) are the “Cash Purchase Price.”  The Payoff Letter shall contain a release from each of the Merchant, the Agent and the Prepetition Second Lien Parties in favor of the DIP Lenders.  Each capitalized term used but not defined in this Section 3.1(a) shall have the meaning set forth in the Final DIP Order.
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(b)            Credit Bid.  At the Closing, pursuant to the Credit Bid and as provided in the Approval Order, $125,000,000 of Notes Claims shall be deemed offset and exchanged for Purchaser’s rights and Merchant’s obligations under this Agreement.
(c)            Wind-Down Funding.  Subject to the occurrence of the Closing, in addition to the Cash Purchase Price and the Credit Bid, Agent shall pay cash from the Proceeds of the Assets (or, solely to the extent the Proceeds are not available, funds provided by Agent) to Merchant from time to time after the Closing (the “Wind-Down Payment”), in the amount of $93,800,000 (the “Wind-Down Cap”) for the purpose of paying certain administrative expenses of Merchant’s bankruptcy estate as set forth in the Wind-Down Budget (as defined below).  Payments from the Wind-Down Payment for Wind-Down Services are subject to and to be used solely as set forth in the budget and schedule attached as Exhibit 3.1(c) hereto (as may be amended from time to time by agreement of the Parties, subject to approval by Purchaser in its sole discretion and, solely with respect to compensation of the Committee’s professionals, 503(b)(9) Claims, and Stub Rent Claims (each as defined below), subject to approval by the Committee, the “Wind-Down Budget”).  Merchant shall provide Purchaser with a register of all checks and ACH/wire transfers Merchant intends to issue pursuant to the Wind-Down Budget at least one business day before issuance, which register shall identify the payees, amounts, and expense categories of such payments.  If so requested by Purchaser, Merchant shall, to the extent commercially feasible, (i) establish separate bank accounts for specific categories of expenses identified in the Wind-Down Budget (the “Wind-Down Accounts”), (ii) deposit the portions of the Wind-Down Payment allocable to categories for which Wind-Down Accounts have been established into such accounts, and (iii) not pay from any Wind-Down Account any amounts other than the administrative expenses reflected in the Wind-Down Budget for the applicable category.  Any portion of the Wind-Down Payment that has not been expended by Merchant as of the Designation Rights Termination Date shall revert and be returned to Purchaser upon the dismissal or conversion of Merchant’s chapter 11 bankruptcy cases or the effective date of a plan of liquidation of Merchant.  Any costs incurred by Merchant in connection with providing the Wind-Down Services (as defined below) shall be subject to the Wind-Down Budget and subject to the Wind-Down Cap and Merchant shall have no obligation to provide such Wind-Down Services unless the cost to do so is included in the Wind-Down Budget or provided for as an Expense.
(d)            Wind-Down / Expense Advance.  As necessary from time to time on or before April 28, 2018, Agent shall advance (including through retention of Proceeds by Merchant) to Merchant the aggregate sum of $50,000,000 (the “Wind-Down / Expense Advance”) solely for payment of (i) Expenses (as defined below) and (ii) administrative expenses reflected in the Wind-Down Budget, as and when due.  Any payment from the Wind-Down / Expense Advance (a) of expenses reflected in the Wind-Down Budget shall be credited against the Wind-Down Payment and (b) of Expenses shall constitute a payment of Expenses by Agent.  The Wind-Down / Expense Advance shall, to the extent commercially feasible, be held in a segregated account and shall not be used for payment of any amounts other than as set forth in this paragraph 3.1(d).
(e)            Expenses.  After the Closing, Agent shall be responsible for the payment of all Expenses pursuant to Section 4.1 below.
(f)            Assumption of Certain Claims.
 
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(i)            Upon the occurrence of the Closing, Agent shall assume the obligation to pay (a) $2,000,000 (the “503(b)(9) Cap”) on account of claims against Merchant under section 503(b)(9) of the Bankruptcy Code (“503(b)(9) Claims”) and (b) $8,000,000 (the “Stub Rent Cap”) on account of claims against Merchant on account of stub rent (“Stub Rent”).  An amount equal to the sum of the 503(b)(9) Cap and the Stub Rent Cap shall be placed into a segregated account established by Agent to be held in trust for the benefit of holders of 503(b)(9) Claims and Stub Rent Claims.  To the extent the sum of all allowed Stub Rent Claims or 503(b)(9) Claims, as the case may be, exceeds the Stub Rent Cap or the 503(b)(9) Cap, as applicable, such claims shall be paid pro rata up to, and subject to, the Stub Rent Cap or the 503(b)(9) Cap, as applicable.  All payments by Agent on account of Stub Rent Claims and 503(b)(9) Claims shall be paid directly to the applicable claimants and shall be credited against the Wind-Down Payment.
(ii)            Within ten days after entry of the Approval Order, Merchant shall file and serve upon each known trade creditor and landlord identified in Merchant’s books and records as holding a 503(b)(9) Claim and/or a Stub Rent Claim a notice identifying such entity’s respective 503(b)(9) Claim or Stub Rent Claim (the “Creditor Notice”).  Each recipient of a Creditor Notice shall have twenty days to file with the Bankruptcy Court and serve upon Merchant, Purchaser, and the Committee a response to such Creditor Notice identifying with specificity any dispute regarding such entity’s 503(b)(9) Claim and/or Stub Rent Claim.  If no response is timely filed by a recipient of a Creditor Notice, the amount and priority of the 503(b)(9) Claim and/or Stub Rent Claim identified on such Creditor Notice shall be binding and conclusive upon the holder thereof, and such holder shall thereafter be barred from objecting to such amount and priority.  If a recipient of a Creditor Notice timely files a response thereto, Merchant and Agent, in consultation with the Committee, shall use best efforts to resolve the dispute asserted therein, provided that disputes that cannot be resolved within ten days shall be resolved by the Bankruptcy Court at the next scheduled omnibus hearing thereafter.  The actual out-of-pocket costs of preparing, filing, and serving the Creditor Notice shall be paid by Agent as an Expense.  Within sixty days after the entry of the Approval Order, Merchant shall provide Agent with a reconciliation of all of the allowed 503(b)(9) Claims and allowed Stub Rent Claims.  Purchaser shall have no obligation to investigate, assess, object to, or contest the merits of any 503(b)(9) Claims or Stub Rent Claims and is entitled to rely on the amounts included on such reconciliation.
(iii)            This paragraph 3.1(f) shall survive termination of this Agreement for any reason.
3.2            Consideration to Purchaser.
(a)            Proceeds.  Upon the payment of the Cash Purchase Price but subject to Agent’s obligations to pay the Expenses and the Wind-Down Payment, all Proceeds shall be the exclusive property of Purchaser, subject to further distribution among the entities comprising Purchaser pursuant to any agreements between the entities comprising Purchaser and the Second Lien Noteholders.
(b)            Assets and Proceeds Held in Trust.  Subject to Section 3.2(a), Merchant shall hold all of the Assets in trust for the benefit of Purchaser.  Subject to Section 3.2(a), any
 
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Proceeds received by, or otherwise in the possession of, Merchant at any time shall be segregated and held strictly in trust for the benefit of Purchaser, shall not be commingled with Merchant’s own assets, shall not become property of Merchant’s bankruptcy estate, and shall be paid over to Purchaser immediately.  For the avoidance of doubt, the costs associated with maintaining the Assets available for sale pursuant to this Agreement shall be borne by Purchaser either as Expenses (as defined below) or through the Wind-Down Payment.
(c)            Merchant and Purchaser further agree that if at any time, Merchant holds any amounts due to Purchaser under this Agreement, Merchant may, in its discretion, offset such amounts being held by Merchant against any undisputed amounts due and owing by, or required to be paid by, Purchaser or Agent hereunder.
(d)            Remaining Merchandise.  To the extent that there is Merchandise remaining at the Sale Termination Date (the “Remaining Merchandise”), such Remaining Merchandise shall be deemed automatically transferred to Agent free and clear of all liens, claims, and encumbrances.  Agent and its affiliates shall be authorized to sell or otherwise dispose of the Remaining Merchandise with all logos, brand names, and other Intellectual Property intact, and shall be authorized to advertise the sale of the Remaining Merchandise using the Intellectual Property.
3.3            Proceeds of GOB Sales.
(a)            Following the payment of the Cash Purchase Price but subject to Agent’s obligation to pay Expenses and fund the Wind-Down Payment, Agent may (but shall not be required to) establish its own accounts (including without limitation credit card accounts and systems), dedicated solely for the deposit of the Proceeds of the GOB Sales (the “GOB Sale Proceeds”) and the disbursement of amounts payable to Agent in connection with the GOB Sales (the “Agency Accounts”), and Merchant shall promptly, upon Agent’s reasonable request, execute and deliver all necessary documents to open and maintain the Agency Accounts; provided, however, Agent shall have the right, in its sole and absolute discretion, to continue to use Merchant’s Designated Deposit Accounts (as defined below) as the Agency Accounts in which case Merchant’s Designated Deposit Accounts shall be deemed to be Agency Accounts.  Agent shall exercise sole signatory authority and control with respect to the Agency Accounts.  The Agency Accounts shall be dedicated solely to the deposit of GOB Sale Proceeds and other amounts contemplated by this Agreement in connection with the GOB Sale and the distribution of amounts payable hereunder in connection with the GOB Sale.  Merchant shall not be responsible for, and Agent shall pay as an Expense hereunder, all bank fees and charges, including wire transfer charges, related to the GOB Sale and the Agency Accounts.  Upon Agent’s notice to Merchant of Agent’s designation of the Agency Accounts (other than Merchant’s Designated Deposit Accounts), all GOB Sale Proceeds (including credit card GOB Sale Proceeds) shall be deposited into the Agency Accounts.
(b)            Agent shall have the right to use Merchant’s credit card facilities, including Merchant’s credit card terminals and processor(s), credit card processor coding, Merchant’s identification number(s) and existing bank accounts for credit card transactions relating solely to the GOB Sale.  In the event that Agent elects to use Merchant’s credit card facilities, Merchant shall process credit card transactions on behalf of Agent and for Agent’s account, applying
 
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customary practices and procedures.  Without limiting the foregoing, Merchant shall cooperate with Agent to download data from all credit card terminals each day during the Sale Term to effect settlement with Merchant’s credit card processor(s), and shall take such other actions necessary to process credit card transactions on behalf of Agent under Merchant’s identification number(s).  At Agent’s request, Merchant shall cooperate with Agent to establish Merchant’s identification numbers under Agent’s name to enable Agent to process all such credit card GOB Sale Proceeds for Agent’s account.  Merchant shall not be responsible for, and Agent shall pay as an Expense hereunder, all credit card fees, charges, and chargebacks related to the GOB Sale, whether received during or after the Sale Term.  Agent shall not be responsible for, as an Expense or otherwise, any credit card fees, charges, or chargebacks relating to periods prior to the Closing.
(c)            Unless and until Agent establishes its own Agency Accounts (other than Merchant’s Designated Deposit Accounts), all GOB Sale Proceeds and other amounts contemplated by this Agreement (including credit card GOB Sale Proceeds), shall be collected by Merchant and deposited on a daily basis into depository accounts designated by, and owned and in the name of, Merchant for the Stores, which accounts shall be designated solely for the deposit of GOB Sale Proceeds and other amounts contemplated by this Agreement (including credit card GOB Sale Proceeds), and the disbursement of amounts payable to or by Agent hereunder (the “Designated Deposit Accounts”).  All funds in the Designated Deposit Accounts shall at all times be held in trust for the benefit of Purchaser, subject to Agent’s obligation to pay Expenses and fund the Wind-Down Payment.  The Designated Deposit Accounts shall be cash collateral accounts, with all cash, credit card payments, checks and similar items of payment, deposits and any other amounts in such accounts being GOB Sale Proceeds or other amounts contemplated hereunder, and Merchant hereby grants to Purchaser, subject to Agent’s obligation hereunder to fund the Wind-Down Payment and Expenses, a first priority senior security interest in each Designated Deposit Account and all funds on deposit in such accounts from and after the Closing.
(d)            Merchant shall take all actions necessary to designate Agent as an authorized signer on all Designated Deposit Accounts and to grant Agent the ability to initiate wire transfers from such Designated Deposit Accounts, provided that Purchaser’s interest in the Designated Deposit Accounts shall be subject to Agent’s obligation to pay Expenses and fund the Wind-Down Payment.
(e)            On each business day to the extent practicable, Merchant shall promptly pay to Agent by wire funds transfer all funds in the Designated Deposit Accounts (including, without limitation, GOB Sale Proceeds, GOB Sale Proceeds from credit card sales, and all other amounts) deposited into the Designated Deposit Accounts for the prior day(s), subject to Section 3.2(c) above.
Section 4.  Expenses.
4.1            Subject to and only upon entry of the Approval Order, in addition to and not subject to the Wind-Down Payment or Wind-Down Cap, Agent shall be unconditionally responsible for all “Expenses,” which shall be paid by Agent in accordance with Section 4.2
 
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below.  As used herein, “Expenses” shall mean the Store-level operating expenses that arise during the Sale Term, limited to the following:
(a)            actual payroll with respect to all Retained Employees used in connection with conducting the GOB Sale for actual days/hours worked at a Store during the Sale Term as well as payroll for any temporary labor engaged for the GOB Sale during the Sale Term;
(b)            any amounts payable by Merchant for benefits for Retained Employees (including FICA, unemployment taxes, workers’ compensation and healthcare insurance, but excluding Excluded Payroll Benefits) for Retained Employees used in the GOB Sale, in an amount not to exceed 23% of the base payroll for all Retained Employees (the “Payroll Benefits Cap”);
(c)            subject to Section 6.1, the actual Occupancy Expenses categorized on Exhibit 4.1(c) in all cases limited on a per Store, per diem basis not to exceed the respective aggregate monthly amounts shown on Exhibit 4.1(c);
(d)            Retention Bonuses for Retained Employees, as provided for in Section 9.4 below;
(e)            advertising and direct mailings relating to the GOB Sale, Store interior and exterior signage and banners, and sign-walkers, in each case relating to the GOB Sale, including the amounts set forth in section 15.1;
(f)            credit card fees, bank card fees, and chargebacks and credit/bank card discounts with respect to Merchandise sold in the GOB Sale;
(g)            bank service charges (for Store, corporate accounts, and Agency Accounts), check guarantee fees, and bad check expenses to the extent attributable to the GOB Sale;
(h)            costs for additional Supplies at the Stores necessary to conduct the GOB Sale as and to the extent requested by Agent;
(i)            all fees and charges required to comply with applicable laws in connection with the GOB Sale as and to the extent agreed to by Agent;
(j)            Store cash theft and other store cash shortfalls in the registers;
(k)            all actual costs and expenses associated with Agent’s on-site supervision of the Stores and Distribution Centers, including (but not limited to) any and all fees, wages, taxes, third party payroll costs and expenses, and deferred compensation of Agent’s field personnel, travel to, from or between the Stores and Distribution Centers, and out-of-pocket and commercially reasonable expenses relating thereto (including reasonable and documented corporate travel to monitor and manage the GOB Sale);
(l)            postage, courier and overnight mail charges requested by Agent to the extent relating to the GOB Sale;
 
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(m)            third party payroll processing expenses associated with the GOB Sale;
(n)            costs of transfers initiated by Agent of Merchandise and Additional Agent Merchandise between and among the Stores and Distribution Centers during the Sale Term, including delivery and freight costs, it being understood that Agent shall be responsible for coordinating such transfer of Merchandise;
(o)            retention payments for Merchant’s corporate employees in an amount not to exceed $300,000 in the aggregate, subject to agreement of Merchant and Purchaser in their respective discretion;
(p)            to the extent Agent elects to use Merchant’s e-commerce site and related sales platform (“E-Commerce Platform”), costs of operating the E-Commerce Platform equal to (i) actual expenses to operate the E-Commerce Platform in an amount equal to $300,000 per week (prorated for partial weeks), plus (ii) the actual costs of shipping Online Merchandise to customers who purchase such Online Merchandise through the E-Commerce Platform from the Sale Commencement Date through and including the date that is seven (7) days after Agent provides Merchant with notice of Agent’s intention to discontinue using the E-Commerce Platform as a sales platform to fulfill customer orders, plus (iii) actual marketing expenses related to the E-Commerce Platform specifically requested by Agent in writing (including by email) such as, but not limited to, paid search and external advertising; and
(q)            compensation of a consumer privacy ombudsman, if one is appointed by the United States Trustee, subject to approval of such compensation by the Bankruptcy Court.
Notwithstanding anything herein to the contrary, to the extent that any Expense category listed in section 4.1 is also included on Exhibit 4.1(c), Exhibit 4.1(c) shall control and such Expenses shall not be double counted.   There will be no double counting or payment of Expenses to the extent that Expenses appear or are contained in more than one Expense category.
As used herein, the following terms have the following respective meanings:
(i)            Central Service Expenses” means costs and expenses for Merchant’s central administrative services necessary for the GOB Sale, including, but not limited to, internal payroll processing, MIS services, cash and inventory reconciliation, data processing and reporting, information technology updates, functionality, and maintenance, and accounting (collectively, “Central Services”).
(ii)            Excluded Payroll Benefits” means (i) the following benefits arising, accruing or attributable to the period prior to, during, or after the Sale Term:  (w) vacation days or vacation pay, (x) sick days or sick leave or any other form of paid time off, (y) maternity leave or other leaves of absence and (z) ERISA coverage and similar contributions and/or (ii) any other benefits in excess of the Payroll Benefits Cap, including, without limitation, any payments due under the WARN Act.
(iii)            Occupancy Expenses” means, with respect to the Stores, base rent, percentage rent, HVAC, utilities, CAM, storage costs, real estate and use taxes, Merchant’s association dues and expenses, utilities expenses, cash register maintenance, routine repairs,
 
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building maintenance, trash and snow removal, housekeeping and cleaning expenses, local and long-distance telephone and internet/wifi expenses, security (including, without limitation, security systems, courier and guard service, building alarm service and alarm service maintenance), and rental for furniture, fixtures and equipment.
(iv)            Third Party” means, with reference to any Expenses to be paid to a Third Party, a party which is not affiliated with or related to Merchant.
(v)            Notwithstanding any other provision of this Agreement to the contrary, “Expenses” shall not include: (i) Excluded Payroll Benefits; (ii) Central Service Expenses, (iii) Occupancy Expenses or any occupancy-related expenses of any kind or nature in excess of the respective per Store occupancy-related amounts expressly provided for as an Expense under Section 4.1(c) above; (iv) any expenses of any kind relating to or arising from Merchant’s home office, and/or (v) any other costs, expenses or liabilities payable by Merchant not provided for herein, all of which shall be paid solely by Merchant (including from the Wind-Down Payment, to the extent provided in the Wind-Down Budget).
4.2            Payment of Expenses.
Subject to and only upon entry of the Approval Order, Agent shall be responsible for the payment of all Expenses out of Proceeds (or from Agent’s own accounts if and to the extent there are insufficient Proceeds).  All Expenses incurred during each week of the GOB Sale (i.e. Sunday through Saturday) shall be paid by Agent to or on behalf of Merchant, or paid by Merchant and thereafter reimbursed by Agent as provided for herein; provided, however, in the event that the actual amount of an Expense is unavailable on the date of the reconciliation (such as payroll), Merchant and Agent shall agree to an estimate of such amounts, which amounts will be reconciled once the actual amount of such Expense becomes available.  Agent and/or Merchant may review or audit the Expenses at any time.
4.3            Distribution Center Expenses
Agent shall be responsible for allocating and designating the shipment of Merchandise from Merchant’s Distribution Centers to the Stores.  All costs and expenses of operating the Distribution Centers, including, but not limited to, use and occupancy expenses, Distribution Center employee payroll and other obligations, and/or processing, transferring, consolidating, shipping, and/or delivering goods within or from the Distribution Centers (the “Distribution Center Expenses”), shall be borne by Agent as an Expense except to the extent provided for in the Wind-Down Budget.
Section 5.  Merchandise.
5.1            Merchandise Subject to This Agreement.
(a)            Excluded Goods” means all (1) goods that are not owned by Merchant, including but not limited to goods that belong to sublessees, licensees, department lessees, or concessionaires of Merchant and (2) goods held by Merchant on memo, on consignment (except to the extent otherwise agreed by the applicable consignor), or as bailee.  Merchant shall be
 
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solely responsible for the disposition and/or abandonment of all Excluded Goods and all costs, expenses, and obligations associated therewith. Purchaser shall incur no cost, expense, or obligation in connection with any Excluded Goods.
(b)            Merchandise” means all goods owned by Merchant for resale as of the occurrence of the Closing, other than Excluded Goods.
(c)            On-line Merchandise” means all inventory that is both (i) designated for sale through the E-Commerce Platform as of the Sale Commencement Date and (ii) located in Merchant’s West Jefferson Distribution Center as of the Sale Commencement Date.
5.2            Distribution Center Allocation.  Allocation and designation of Merchandise located in the Distribution Centers to the Stores shall be in Agent’s sole discretion, subject to the Wind-Down Budget.
Section 6.  Sale Term.
6.1            Term.  Subject to satisfaction of the conditions precedent set forth in Section 10 hereof, the GOB Sale shall commence at each Store on a date determined by Agent in its sole discretion after the occurrence of the Closing (the “Sale Commencement Date”) and shall end at each Store no later than August 31, 2018 (the “Sale Termination Date”, and the period from the Sale Commencement Date to the Sale Termination Date as to each Store being the “Sale Term”), provided that the Sale Commencement Date shall occur no later than April 19, 2018.  Agent may, in its discretion, earlier terminate the GOB Sale on a Store-by-Store basis upon not less than seven (7) days’ prior written notice (a “Vacate Notice”) to Merchant (the “Vacate Date”), provided, that it being understood that Agent’s obligations to pay all Expenses, including Occupancy Expenses, for each Store subject to a Vacate Notice shall continue until the applicable Vacate Date, provided, however, that, with respect to Occupancy Expenses, Agent’s obligations to pay all Occupancy Expenses for each Store shall continue until the last day of the calendar month in which the Vacate Date occurs for such Store.
6.2            Vacating the Stores.  At the conclusion of the GOB Sale, Agent agrees to leave each Store in “broom clean” condition, ordinary wear and tear excepted, except for unsold items of Owned FF&E which may be abandoned by Agent in place in a neat and orderly manner pursuant to Section 7 below.  Agent shall vacate each Store on or before the Sale Termination Date as provided for herein, at which time Agent shall surrender and deliver the Store premises, and Store keys, to Merchant unless the applicable Lease is being conveyed pursuant to the Lease/Contract Designation Rights.  Agent’s obligations to pay all Expenses for the Stores shall continue as provided for in Section 6.1.
Section 7.  FF&E.
7.1            Abandonment of FF&E.  Agent shall be authorized to abandon any and all FF&E, whether owned or not by Merchant, in place without any cost or liability to Agent.  For the avoidance of doubt, Agent shall have no responsibility whatsoever with respect to FF&E that is not owned by Merchant, provided that nothing in this Section 7 shall limit Agent’s rights with
 
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respect to Owned FF&E under the Asset Designation Rights or with respect to leased FF&E under the Lease/Contract Designation Rights.
Section 8.  Conduct of the GOB Sale.
8.1            Rights of Agent.  Subject to entry of the Approval Order, in addition to any other rights granted to Agent elsewhere in this Agreement, Agent shall be permitted to conduct the GOB Sale as a “going out of business”, “store closing”, “sale on everything”, “everything must go”, or similar themed sale throughout the Sale Term without compliance with any Liquidation Sale Laws.  The Agent shall conduct the GOB Sale in the name of and on behalf of Merchant in a commercially reasonable manner and in compliance with the terms of this Agreement and subject to the Approval Order.  Agent shall conduct the GOB Sale in accordance with the sale guidelines attached hereto as Exhibit 8.1(the “Sale Guidelines”).  In addition to any other rights granted to Agent hereunder in conducting the GOB Sale the Agent, in the exercise of its reasonable discretion shall have the right:
(a)            to establish Sale prices and discounts and Store hours;
(b)            except as otherwise expressly included as an Expense, to use without charge during the Sale Term all FF&E, computer hardware and software, existing Supplies, intangible assets (including Merchant’s name, logo and tax identification numbers), Store keys, case keys, security codes and safe and lock combinations required to gain access to and operate the Stores, and any other assets of Merchant located at the Stores (whether owned, leased, or licensed);
(c)             (i) consistent with the Wind-Down Budget, to be provided by Merchant with central office facilities, central administrative services and personnel to process and perform Central Services and provide other central office services reasonably necessary for the GOB Sale; (ii) to use reasonably sized offices located at Merchant’s central office facility to effect the GOB Sale; and (iii) to use all customer lists, mailing lists, email lists, and web and social networking sites utilized by Merchant in connection with its business (to the extent such items can be segregated to the Stores and  solely in connection with the GOB Sale and pursuant to such reasonable restrictions requested by Merchant in order for Merchant to comply with its privacy policy and applicable laws governing the use and dissemination of confidential consumer personal data);
(d)            to establish and implement advertising, signage and promotion programs consistent with the “going out of business”, “store closing”, “sale on everything”, “everything must go”, or similar themed sale, including without limitation by means of media advertising, and similar interior and exterior signs and banners, and the use of sign walkers, each at Agent’s expense; and
(e)            to transfer Merchandise between and among the Stores and Distribution Centers at Agent’s expense.
8.2            Terms of Sales to Customers; Final/As Is Sales.  All sales of Merchandise will be “final sales” and “as is,” and appropriate signage and sales receipts will reflect the same.  Agent
 
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shall not warrant the Merchandise in any manner, but will, to the extent legally permissible, pass on all manufacturers’ warranties to customers.  All sales will be made only for cash or nationally recognized bank credit cards.   Upon entry of the Approval Order, Agent shall not accept or honor coupons during the Sale Term.  The Agent shall clearly mark all receipts for the Merchandise sold at the Stores during the Sale Term so as to distinguish such Merchandise from the goods sold prior to the Sale Commencement Date.  Unless otherwise agreed between Agent and the issuer of Merchant’s private-label credit cards (“PLCCs”), Agent shall not accept PLCCs as a form of payment during the Sale.
8.3            Sales Taxes.
(a)            During the Sale Term, all sales, excise, gross receipts and other taxes attributable to sales of Merchandise and Additional Agent Merchandise, as indicated on Merchant’s point of sale equipment (other than taxes on income) payable to any taxing authority having jurisdiction (collectively, “Sales Taxes”) shall be added to the sales price of Merchandise and Additional Agent Merchandise and collected by Agent, on Merchant’s behalf, at the time of sale.  All Sales Taxes shall be deposited into a segregated account designated by Merchant and Agent solely for the deposit of such Sales Taxes (the “Sales Taxes Account”).  Merchant shall prepare and file all applicable reports and documents required by the applicable taxing authorities, and Merchant shall promptly pay all Sales Taxes from the Sales Taxes Account.  Merchant will be given access to the computation of gross receipts for verification of all such tax collections.  Provided that Agent performs its responsibilities in accordance with this Section 8.3, Agent shall have no further obligation to Merchant, any taxing authority, or any other party, and Merchant shall indemnify and hold harmless Agent from and against any and all costs, including, but not limited to, reasonable attorneys’ fees, assessments, fines or penalties which Agent sustains or incurs as a result or consequence of the failure by Merchant to promptly pay such taxes to the proper taxing authorities and/or the failure by Merchant to promptly file with such taxing authorities all reports and other documents required by applicable law to be filed with or delivered to such taxing authorities.  If Agent fails to perform its responsibilities in accordance with this Section 8.3, and provided Merchant complies with its obligations hereunder, Agent shall indemnify and hold harmless Merchant from and against any and all costs, including, but not limited to, reasonable attorneys’ fees, assessments, fines or penalties which Merchant sustains or incurs as a result or consequence of the failure by Agent to collect Sales Taxes and/or the failure by Agent to promptly deliver any and all reports and other documents required to enable Merchant to file any requisite returns with such taxing authorities.
(b)            Without limiting the generality of Section 8.3(a) hereof, it is hereby agreed that, as Agent is conducting the GOB Sale solely as agent for Merchant, various payments that this Agreement contemplates that one party may make to the other party (including the payment by Agent of the Guaranteed Amount) do not represent the sale of tangible personal property and, accordingly, are not subject to Sales Taxes.
8.4            Supplies.  Agent shall have the right to use, without charge, all existing supplies located at the Stores, Distribution Centers and corporate office(s), including, without limitation, boxes, bags, paper, twine and similar sales materials (collectively, “Supplies”).  In the event that additional Supplies are required in any of the Stores during the GOB Sale, Merchant agrees to
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promptly provide the same to Agent, if available, for which Agent shall reimburse Merchant at Merchant’s cost therefor.
8.5            Returns of Merchandise.  Agent shall accept returns of goods sold by Merchant prior to the Closing for a period of ten days from and including the Sale Commencement Date.  Thereafter, Agent shall have no obligation to accept returns of goods sold by Merchant prior to the Closing.  Agent’s acceptance of returns shall not impact the Wind-Down Budget or the Wind-Down Cap.
8.6            Gift Certificates & Credits.  Agent shall accept Merchant’s gift certificates, gift cards, store credits, return credits, or similar merchandise credits issued by Merchant (collectively, “Gift Certificates”) for a period of ten days from and including the Sale Commencement Date.  Thereafter, Agent shall have no obligation to accept Gift Certificates.  Agent’s acceptance of Gift Certificates shall not impact the Wind-Down Budget or the Wind-Down Cap.
8.7            Right to Monitor.  Merchant shall have the right to monitor the GOB Sale and activities attendant thereto and to be present in the Stores during the hours when the Stores are open for business; provided that Merchant’s presence does not unreasonably disrupt the conduct of the Sale.  Merchant shall also have a right of access to the Stores at any time in the event of an emergency situation and shall promptly notify Agent of such emergency.
8.8            Sale Reconciliation.  On each Wednesday during the Sale Term, Agent and Merchant shall cooperate to reconcile Expenses, make payments/setoffs on account of the GOB Sale Proceeds and reconcile such other GOB Sale-related items as either party shall reasonably request, in each case for the prior week or partial week (i.e. Sunday through Saturday), all pursuant to procedures agreed upon by Merchant and Agent (the “Weekly Sale Reconciliation”).  Within thirty (30) days after the end of the Sale Term, or as soon as practicable thereafter, Agent and Merchant shall complete a final reconciliation of the Sale (the “Final Reconciliation”), the written results of which shall be certified by representatives of each of the Merchant and Purchaser as a final settlement of accounts between the Merchant and Purchaser with respect to the GOB Sale.  Within five (5) days after the completion of the Final Reconciliation and execution of a settlement letter including an appropriate mutual release for the benefit of Merchant and Purchaser, Agent shall pay to Merchant, or Merchant shall pay to Agent, as the case may be, any and all amounts due the other pursuant to the Final Reconciliation.  The Approval Order shall provide that the Final Reconciliation, once agreed to by Merchant and Purchaser, shall be automatically deemed approved pursuant to Bankruptcy Code section 105(a) and Rule 9019 of the Federal Rules of Bankruptcy Procedure without further order of the Bankruptcy Court or action by any party.  During the Sale Term, and thereafter until all of Merchant’s and Purchaser’s and Agent’s obligations under this Agreement have been satisfied, Merchant and Purchaser shall have reasonable access to Merchant’s and Purchaser’s records with respect to the GOB Sale (including, but not limited to Merchandise, GOB Sale Proceeds, and Expenses) to review and audit such records.
 
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8.9            Additional Agent Merchandise.
(a)            Agent shall be entitled to include in the Sale additional merchandise procured by Agent which is of like kind as, and no lesser quality to, the Merchandise located in the Stores (“Additional Agent Merchandise”).  Agent shall be responsible for payment of all costs associated with any Additional Agent Merchandise.  All proceeds of the sale of Additional Agent Merchandise shall remain the exclusive property of Agent.
(b)            The Additional Agent Merchandise shall be at all times subject to the control of Agent.  If requested by Agent, Merchant shall, at Agent’s expense, insure the Additional Agent Merchandise and, if required, promptly file any proofs of loss with regard to same with Merchant’s insurers.

(c)            Any transactions relating to the Additional Agent Merchandise are, and shall be construed as, a true consignment from Agent to Merchant.  Merchant acknowledges, and the Approval Order (as and when applicable) shall provide, that the Additional Agent Merchandise shall be consigned to Merchant as a true consignment under Article 9 of the Uniform Commercial Code in effect in the State of Delaware (the “UCC”). Agent is hereby, and shall be through the Approval Order, granted a first priority security interest in (i) the Additional Agent Merchandise and (ii) the Additional Agent Merchandise Proceeds, which security interest shall be deemed perfected pursuant to the Approval Order without the requirement of filing UCC financing statements or providing notifications to any prior secured parties (provided that Agent is hereby authorized to deliver any notices and file any financing statements and amendments thereof under the applicable UCC identifying Agent’s interest in the Additional Agent Merchandise and any proceeds from the sale thereof as consigned goods thereunder and Merchant as the consignee therefor, and Agent’s security interest in such Additional Agent Merchandise and Additional Agent Merchandise proceeds.

(d)            Agent shall provide signage in the Stores notifying customers that the Additional Agent Merchandise has been included in the Sale.
8.10            E-Commerce Platform.  Subject to the Wind-Down Budget and payment of Expenses, Agent shall use the E-Commerce Platform in connection with the GOB Sale to fulfill customer orders made during the GOB Sale Term and otherwise promote the GOB Sale (in Agent’s capacity as Agent hereunder), provided that Agent shall have the option, in its sole discretion, to terminate the use of the E-Commerce Platform at any time after four weeks of use.  During the use of the E-Commerce Platform, and consistent with the Wind-Down Budget (i) Merchant shall continue to provide for the operation and maintenance of the E-Commerce Platform, including information technology and E-Commerce Platform updates, and provide Agent with all assistance with respect to the functionality of the E-Commerce Platform, fulfillment of orders, and promotion of the GOB Sale and (ii) Agent shall pay as an Expense those amounts reflected in Section 4.1(p) through and including the date that is seven (7) days after Agent provides Merchant with notice of Agent’s intention to discontinue using the E-Commerce Platform as a sales platform to fulfill customer orders (the “LDOB Date”); provided, however, that, if Agent continues the Sale at the Stores after the LDOB Date, Merchant shall, as a Central Service and at no cost or expense to Agent (other than as provided in the Wind-Down Budget), maintain the E-Commerce Platform with limited functionality for the limited purposes
 
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of advertising and promoting the Sale at the Stores, periodically updating such advertising and promotions, and maintaining and updating the Store locator function at no cost or expense to Agent.  With respect to the E-Commerce Platform, (i) Agent shall be authorized to sell Additional Agent Goods through the E-Commerce Platform and (ii) the Parties may implement such other processes, procedures, and agreements as may be necessary or appropriate for the efficient and continued operation of the E-Commerce Platform.  In the event Agent elects to discontinue using the E-Commerce Platform as a sales platform to fulfill customer orders, Merchant agrees that neither Merchant nor any other person or entity shall complete any sale of goods for Merchant’s or any other person’s or entity’s account utilizing the E-Commerce Platform during the GOB Sale Term, Merchant shall otherwise comply with Merchant’s obligations under this Agreement in respect of the E-Commerce Platform, and Merchant shall, as a Central Service and at no cost or expense to Agent (other than as provided in the Wind-Down Budget), maintain the E-Commerce Platform with limited functionality for the limited purposes of advertising and promoting the GOB Sale at the Stores, periodically updating such advertising and promotions, and maintaining and updating the Store locator function.  As part of the Allocation Schedule, Merchant and Agent shall mutually agree upon an allocation of certain On-line Merchandise to be promptly delivered to the Stores and not sold through the E-Commerce Platform (the “Designated On-line Merchandise”).  In the event Agent ceases using the E-Commerce Platform as a sales platform prior to the Sale Termination Date, Merchant shall be responsible for processing and ticketing all Merchandise not sold through the E-Commerce Platform for sale in the Stores and delivering any remaining On-line Merchandise (the “Remaining On-line Merchandise”) to the Stores according to a mutually agreed upon allocation schedule.
Section 9.  Employee Matters.
9.1            Merchant’s Employees.  Subject to the Wind-Down Budget and payment of Expenses, Agent may use Merchant’s employees in the conduct of the Sale to the extent Agent deems necessary for the Sale, and Agent may select and schedule the number and type of Merchant’s employees required for the Sale.  Agent shall identify any such employees to be used in connection with the Sale (each such employee, a “Retained Employee”).  Notwithstanding the foregoing, Merchant’s employees shall at all times remain employees of Merchant.  Agent’s selection and scheduling of Merchant’s employees shall at all times comply with all applicable laws and regulations.  Merchant and Agent agree that, except to the extent that wages and benefits of Retained Employees constitute Expenses hereunder, nothing contained in this Agreement and none of Agent’s actions taken in respect of the Sale shall be deemed to constitute an assumption by Agent of any of Merchant’s obligations relating to any of Merchant’s employees including, without limitation, Excluded Payroll Benefits, Worker Adjustment Retraining Notification Act (“WARN Act”) claims and other termination type claims and obligations, or any other amounts required to be paid by statute or law; nor shall Agent become liable under any employment agreement, collective bargaining agreement, or be deemed a joint or successor employer with respect to such employees.  For the avoidance of doubt, Merchant shall be responsible for providing any required notice under the WARN Act with respect to its employees and otherwise comply with the WARN Act with respect to any “plant closing” or “mass layoff’ (as defined in the WARN Act) or group termination or similar event affecting the employees, whether before or after the date of this Agreement.  Merchant shall not, without the prior consent of Agent, raise the salary or wages or increase the benefits for, or pay any bonuses
 
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or other extraordinary payments to, any Store or Distribution Center employees prior to the Sale Termination Date.  Merchant shall not transfer any employee in anticipation of the Sale nor any Retained Employee during the Sale Term, in each case without Agent’s prior consent.  To the extent reasonably requested by Agent, and at Agent’s expense, Merchant shall use commercially reasonable efforts to hire additional temporary employees to facilitate the GOB Sale, which employees shall constitute Retained Employees for purposes of this Agreement.
9.2            Termination of Employees.  Agent may in its discretion stop using any Retained Employee at any time during the Sale, subject to the conditions provided for herein.  In the event that Agent desires to cease using any Retained Employee, Agent shall notify Merchant at least seven (7) days prior thereto; provided, however, that, in the event that Agent determines to cease using an employee “for cause” (such as dishonesty, fraud or breach of employee duties), the seven (7) day notice period shall not apply; provided, further, however, that Agent shall immediately notify Merchant of the basis for such “cause.”  From and after the date of this Agreement and until the Sale Termination Date, Merchant shall not transfer or dismiss employees of the Stores or Distribution Centers except “for cause” without Agent’s prior consent.  Notwithstanding the foregoing, Agent shall not have the right to terminate the actual employment of any employee, but rather may only cease using such employee in the Sale and paying any Expenses with respect to such employee (and all decisions relating to the termination or non-termination of such employees shall at all times rest solely with Merchant).
9.3            Payroll Matters.  During the Sale Term, Merchant shall process the payroll for all Retained Employees and any former employees and temporary labor engaged for the Sale.  Each Wednesday (or such other date as may be reasonably requested by Merchant to permit the funding of the payroll accounts before such payroll is due and payable) during the Sale Term, Agent shall transfer to Merchant’s payroll accounts an amount equal to the base payroll for Retained Employees plus related payroll taxes, workers’ compensation and benefits for such week, to the extent such amount constitutes Expenses hereunder.
9.4            Employee Retention Bonuses.  Subject to approval by the Bankruptcy Court, Agent may pay, as an Expense, retention bonuses and/or severance pay (“Retention Bonuses”) (which bonuses shall be inclusive of payroll taxes, but as to which no benefits shall be payable), up to a maximum of $7,400,000 in the aggregate, to such Retained Employees who do not voluntarily leave employment, are not otherwise entitled to receive severance pay, and are not terminated “for cause,” as Agent may determine in its discretion.  Subject to approval by the Bankruptcy Court, the amount of such Retention Bonuses shall be in an amount to be determined by Agent, in its discretion, and shall be payable within thirty (30) days after the Sale Termination Date, and shall be processed through Merchant’s payroll system.
Section 10.  Conditions Precedent and Subsequent.
(a)            The willingness of Purchaser to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by Purchaser in its sole discretion:
 
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(i)            Entry of the Approval Order shall have occurred no later than April 18, 2018;
(ii)          All representations and warranties of Merchant hereunder shall be true and correct in all material respects as of the Closing, and Merchant shall have in all material respects performed the obligations and complied with the covenants required by this Agreement to be performed or complied with by it prior to the Closing; and
(iii)         All of the Parties shall have executed this Agreement.
(b)            The willingness of Merchant to enter into the transactions contemplated under this Agreement, and the occurrence of the Closing, are directly conditioned upon the satisfaction of the following conditions at the time or during the time periods indicated, unless specifically waived in writing by Merchant:
(i)            The Bankruptcy Court shall have entered the Approval Order no later than April 18, 2018;
(ii)          All representations and warranties of Purchaser hereunder shall be true and correct in all material respects as of the Closing, and Purchaser shall have in all material respects performed the obligations and complied with the covenants required by this Agreement to be performed or complied with by it prior to the Closing; and
(iii)         All of the Parties shall have executed this Agreement.
Section 11.  Representations, Warranties and Covenants.
11.1            Merchant’s Representations, Warranties and Covenants.  Merchant hereby represents, warrants and covenants in favor of Purchaser as follows:
(a)            As of the date of this Agreement and at the Closing, Merchant (i) is duly organized, validly existing and in good standing under the laws of State of Delaware; (ii) has all requisite corporate power and authority to own, lease and operate the Assets and to carry on its business as presently conducted; (iii) is, and during the Sale Term will continue to be, duly authorized and qualified to do business and in good standing in each jurisdiction where the nature of its business or properties requires such qualification, including all jurisdictions in which the Stores are located, except, in each case, to the extent that the failure to be in good standing or so qualified could not reasonably be expected to have a material adverse effect on the ability of Merchant to execute and deliver this Agreement and perform fully its obligations hereunder; and (iv) has paid when due, and until the sale or other disposition of all of the Assets, will continue to pay when due, all United States Trustee fees.
(b)            Subject only to entry of the Approval Order, Merchant, as of the date of this Agreement and at the Closing, has the right, power and authority to execute and deliver this Agreement and each other document and agreement contemplated hereby (collectively, together with this Agreement, the “Agency Documents”) and to perform fully its obligations thereunder.  Merchant has taken all necessary actions required to authorize the execution, delivery and performance of the Agency Documents, and no further consent or approval is required for
 
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Merchant to enter into and deliver the Agency Documents, to perform its obligations thereunder and to consummate the Sale, except for any such consent the failure of which to be obtained could not reasonably be expected to prevent or materially delay or impair the ability of Merchant to execute and deliver this Agreement and perform fully its obligations hereunder.  Each of the Agency Documents has been duly executed and delivered by Merchant and, upon the due authorization, counter-execution, and delivery of this Agreement by Purchaser, constitutes the legal, valid and binding obligation of Merchant enforceable in accordance with its terms.
(c)            The Cash Purchase Price determined pursuant to Section 3.1(a) above shall not exceed $574,831,000 as of April 19, 2018.
(d)            Merchant, as of the date of this Agreement and at the Closing, owns good and marketable title to all of the Assets, free and clear of all security interests, liens, claims and encumbrances of any nature other than the security interests securing the DIP Obligations (as defined in the Final DIP Order) and the Second-Lien Notes.  Merchant shall not create, incur, assume or suffer to exist any security interest, lien or other charge or encumbrance upon or with respect to any of the Assets.  From and after the Closing, subject to the Wind-Down Budget, Merchant shall perform such tasks and services as are necessary to maintain all of the Assets in salable condition, to preserve the Assets and the economic value thereof, and to maintain good, clear, and marketable title to all of the Assets at all times until all Assets have been sold or otherwise disposed of, and such tasks and services as Purchaser may otherwise reasonably request in connection with the Assets, including but not limited to paying all ad valorem taxes and utilities when due, performing all routine maintenance, cooperating with Purchaser to obtain the refund of all deposits and security deposits, and renewing all necessary licenses and registrations (collectively, all of the foregoing are the “Wind-Down Services”).
(e)            Merchant has maintained its pricing files in the ordinary course of business, and prices charged to the public for goods are the same in all material respects as set forth in such pricing files for the periods indicated therein, all pricing files and records are true and accurate in all material respects as to the actual cost to Merchant for purchasing the goods referred to therein and as to the selling price to the public for such goods without consideration of any point of sale discounts, as of the dates and for the periods indicated therein.  Merchant represents that (i) the ticketed prices of all items of Merchandise do not and shall not include any Sales Taxes and (ii) all registers located at the Stores are programmed to correctly compute all Sales Taxes required to be paid by the customer under applicable law, as such calculations have been identified to Merchant by its retained service provider.
(f)            Through the Sale Commencement Date, Merchant has ticketed or marked, and shall continue to ticket or mark, all items of inventory received at the Stores in a manner consistent with similar Merchandise located at the Stores, and in accordance with Merchant’s ordinary course past practices and policies relative to pricing and marking inventory.
(g)            Since March 1, 2018, Merchant has not, and through the Sale Commencement Date Merchant shall not, purchase for or transfer to or from the Stores any merchandise or goods outside the ordinary course.
 
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(h)            To Merchant’s knowledge after reasonable inquiry, all Merchandise is in compliance with all applicable federal, state and local product safety laws, rules and standards.  Merchant shall provide Agent with its historic policies and practices, if any, regarding product recalls prior to the Sale Commencement Date.
(i)            Subject to the Wind-Down Budget, Merchant shall, throughout the Sale Term, maintain in good working order, condition, and repair all cash registers, heating systems, air conditioning systems, elevators, escalators and all other mechanical devices necessary or appropriate for the conduct of the Sale at the Stores.  Except as otherwise restricted by the Bankruptcy Code upon filing of the Bankruptcy Case or the Wind-Down Budget, and absent a bona fide dispute, throughout the Sale Term, Merchant shall remain current on all expenses and payables necessary or appropriate for the conduct of the GOB Sale.
(j)            Subject the Wind-Down Budget, payment of Expenses by Agent, and approval by the Bankruptcy Court, Merchant has paid, and will continue to pay throughout the Sale Term, all self-insured or Merchant-funded employee benefit programs for Store employees, including health and medical benefits and insurance and all proper claims made or to be made in accordance with such programs.
(k)            Since March 1, 2018, Merchant has not taken, and shall not throughout the Sale Term take, any actions with the intent of increasing the Expenses of the Sale, including without limitation increasing salaries or other amounts payable to employees; except to the extent an employee was due an annual raise in the ordinary course.
(l)            Prior to the execution of this Agreement, Merchant has provided Agent reasonable access to all pricing and cost files, computer hardware, software and data files, inter-Stores transfer logs, markdown schedules, invoices, style runs and all other documents relative to the price, mix and quantities of inventory located at the Stores and the Distribution Centers or on order or in transit.
(m)            To Merchant’s knowledge after reasonable inquiry, all documents, information and supplements provided by Merchant to Agent in connection with Agent’s due diligence and the negotiation of this Agreement were true and accurate in all material respects at the time provided.
(n)            Other than filing the Bankruptcy Case, no action, arbitration, suit, notice, or legal, administrative or other proceeding before any court or governmental body has been instituted by or against Merchant, or has been settled or resolved, or to Merchant’s knowledge, is threatened against or affects Merchant, relative to Merchant’s business or properties, or which questions the validity of this Agreement, or that if adversely determined, would adversely affect the conduct of the Sale.
The representations set forth in Sections 11.1(e), (f), (g), and (h) shall not survive the Closing.
11.2            Purchaser’s Representations, Warranties and Covenants.  Purchaser hereby represents, warrants and covenants in favor of Merchant as follows:
 
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(a)            Each member comprising Purchaser: (i) is duly and validly existing and in good standing under the laws of the State of its organization; (ii) has all requisite power and authority to carry on its business as presently conducted and to consummate the transactions contemplated hereby; (iii) is duly authorized and qualified to do business and in good standing in each jurisdiction where the nature of its business or properties requires such qualification, including, in the case of the entities comprising Agent, all jurisdictions in which the Stores are located, except, in each case, to the extent that the failure to be in good standing or so qualified could not reasonably be expected to have a material adverse effect on the ability of such member to execute and deliver this Agreement and perform fully its obligations hereunder.
(b)            To the extent permitted and authorized under the Indenture, (i) each member comprising Purchaser has the right, power and authority to execute and deliver each of the Agency Documents to which it is a party and to perform fully its obligations thereunder; (ii) each member comprising Purchaser has taken all necessary actions required to authorize the execution, delivery and performance of the Agency Documents, and no further consent or approval is required on the part of such member for such member to enter into and deliver the Agency Documents, to perform its obligations thereunder and to consummate the transactions contemplated thereby, and (iii) each of the Agency Documents has been duly executed and delivered by the members of Purchaser party thereto and, assuming the due authorization, execution, and delivery of this Agreement by Merchant, constitutes the legal, valid and binding obligation of such member enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting the rights of creditors generally and by general principles of equity.  No court order or decree of any federal, state or local governmental authority or regulatory body is in effect that would prevent or impair, or is required for, Purchaser’s consummation of the transactions contemplated by this Agreement, and no consent of any third party which has not been obtained is required therefor, other than as provided herein.  No contract or other agreement to which Purchaser is a party or by which Purchaser is otherwise bound will prevent or impair the consummation of the transactions contemplated by this Agreement.
(c)            No action, arbitration, suit, notice or legal administrative or other proceeding before any court or governmental body has been instituted by or against Purchaser, or has been settled or resolved or, to Purchaser’s knowledge, has been threatened against or affects Purchaser, which questions the validity of this Agreement or any action taken or to be taken by Purchaser in connection with this Agreement or which, if adversely determined, would have a material adverse effect upon Purchaser’s ability to perform its obligations under this Agreement.
(d)            The GOB Sale shall be conducted in compliance with all applicable state and local laws, rules and regulations and Merchant’s leases and other agreements, except as otherwise provided for in the Sale Guidelines and Approval Order.
(e)            Absent prior consent by Merchant, Purchaser will not cause any non-emergency repairs or maintenance (emergency repairs are repairs necessary to preserve the security of a Store premise or to ensure customer safety) to be conducted at the Stores.
(f)            Purchaser shall not prosecute, or otherwise use offensively or defensively, Avoidance Actions against any of Merchant’s (1) non-insider trade vendors or landlords,
 
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(2) employees and officers with respect to retention payments received pursuant to Retention Agreements in 2017, or (3) directors with respect to directors’ fees received, and such Avoidance Actions shall be released as of the Closing.  This paragraph 11.2(f) shall survive any termination of this Agreement for any reason.
Section 12.  Insurance.
12.1            Merchant’s Liability Insurance.  Until the Designation Rights Termination Date or as otherwise directed by Purchaser or set forth in this Agreement, Merchant shall continue to maintain, subject to the Wind-Down Budget and the Wind-Down Cap, in such amounts as it currently has in effect, all of its liability insurance policies, including but not limited to commercial general liability, products liability, comprehensive public liability, auto liability and umbrella liability insurance, covering injuries to persons and property in, or in connection with, the Assets and/or Merchant’s operation of its business and the Store and Distribution Centers; and Merchant shall cause Purchaser to be named as an additional named insured (as its interest may appear) with respect to all such policies.  Merchant shall deliver to Purchaser certificates evidencing such insurance setting forth the duration thereof and naming Purchaser as an additional named insured, in form reasonably satisfactory to Purchaser.  All such policies shall require at least thirty (30) days’ prior notice to Purchaser of cancellation, non-renewal or material change.  In the event of a claim under any such policies, Merchant shall be responsible for the payment of all deductibles, retentions or self-insured amounts thereunder (which may be reimbursed as an Expense and/or pursuant to the Wind-Down Payment, subject to the Wind-Down Budget and the Wind-Down Cap), unless it is determined that liability arose by reason of the willful misconduct or grossly negligent acts or omissions of Purchaser, or Purchaser’s employees, independent contractors or agents.  Merchant shall not make any change in the amount of any deductibles or self-insurance amounts on or after the date of this Agreement without Purchaser’s prior written consent.
12.2            Merchant’s Casualty Insurance.  Until the Designation Rights Termination Date or as otherwise directed by Purchaser or set forth in this Agreement, Merchant shall continue to maintain, subject to the Wind-Down Budget and the Wind-Down Cap, all of its presently existing property casualty coverage related to the Assets (including but not limited to fire, flood, wind, hail, natural disaster, theft, and extended coverage casualty insurance) until the sale or other disposition of all Assets covered by such policies.  From and after the date of this Agreement, all such policies will also name Purchaser as an additional named insured or loss payee, as applicable (as its interest may appear).  In the event of a loss to the Assets on or after the date of this Agreement, all proceeds of such insurance shall constitute Proceeds hereunder.  Merchant shall deliver to Purchaser certificates evidencing such insurance, setting forth the duration thereof and naming Purchaser as an additional insured or loss payee, as applicable, in form and substance reasonably satisfactory to Purchaser.  All such policies shall require at least thirty (30) days’ prior notice to Purchaser of cancellation, non-renewal or material change.  Merchant shall not make any change in the amount of any deductibles or self-insurance amounts on or after the date of this Agreement without Purchaser’s prior written consent.  Upon the sale, conveyance, or other disposition of any Asset specifically identified in any of Merchant’s casualty insurance policies, Merchant, if reasonably requested by Purchaser, shall cancel the casualty coverage specifically applicable to such Asset.
 
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12.3            Agent’s Insurance.  Agent shall maintain, at Agent’s cost (as an Expense) and in such amounts as Agent currently has in effect, commercial general liability policies covering injuries to persons and property in or in connection with Agent’s agency at the Stores and shall cause Merchant to be named as an additional insured with respect to such policies.  Agent shall deliver to Merchant certificates evidencing such insurance policies setting forth the duration thereof and naming Merchant as an additional insured, in form and substance reasonably satisfactory to Merchant.  In the event of a claim under any such policies, Agent shall be responsible for the payment of all deductibles, retentions or self-insured amounts thereunder, unless it is determined that liability arose by reason of the willful misconduct or grossly negligent acts or omissions of Merchant or Merchant’s employees, independent contractors or agents (other than Agent or Agent’s employees, agents or independent contractors).  Agent shall not make any change in the amount of any deductibles or self-insurance amounts prior to the Sale Termination Date without Merchant’s prior written consent.
12.4            Worker’s Compensation Insurance.  Merchant shall, at all times while any employees are in its employ, maintain in full force and effect workers’ compensation insurance (including employer liability insurance) in compliance with all statutory requirements.
Section 13.  Purchaser’s Security Interest.
Subject to Agent’s obligation to pay Expenses and fund the Wind-Down Payment:
(a)            Upon the occurrence of the Closing, and solely to the extent that any Assets or Proceeds are, notwithstanding the Approval Order, subsequently determined to constitute property of Merchant’s estate, Purchaser shall have a senior lien on all Assets and Proceeds, which lien shall be deemed by the Approval Order to be automatically perfected.  The Approval Order shall grant Purchaser relief from the automatic stay, and nothing in the Approval Order shall inhibit Purchaser’s ability, to take any action Purchaser deems appropriate to perfect such lien.
(b)            Upon the occurrence of the Closing and until all Assets have been sold or otherwise disposed of, and solely to the extent that any Assets or Proceeds are, notwithstanding the Approval Order, subsequently determined to constitute property of Merchant’s estate, Purchaser shall have a superpriority administrative expense claim against Merchant to the extent of any amounts owing from Merchant to Purchaser in connection with this Agreement, including as a result of any breach of this Agreement.
Section 14.  Designation Rights.
14.1            Lease/Contract Designation Rights.
(a)            Upon the occurrence of the Closing and until the earlier to occur of (i) the end of the Designation Rights Period applicable to a particular Lease or Contract and (ii) the Designation Rights Termination Date, Purchaser shall have the exclusive right to designate the assignees of Merchant’s right, title, and interest in and to any or all of the Leases and Contracts (the “Lease/Contract Designation Rights”) upon the terms and conditions agreed upon between Purchaser and such designee.
 
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(b)            Merchant shall cooperate reasonably with Purchaser to arrange for the sale and assignment of the Leases and Contracts, with such sale and assignment to be on such terms as Purchaser deems acceptable in its sole and absolute discretion.  Without limiting the generality of the foregoing, Merchant agrees (1) to provide Purchaser with all due diligence materials and information as Purchaser shall reasonably request in connection with its efforts to market and attempt to sell the Leases and Contracts (including complete copies thereof and any abstracts prepared with respect thereto, and all communications with the counterparties thereunder, all property surveys, all environmental reports and tax and utility records), with Purchaser to bear all reasonable third party out-of-pocket costs and expenses relating thereto, in all cases to the extent reasonably available to Merchant, and (2) to cooperate with Purchaser, its agents, and any potential purchasers of any of the Leases and/or Contracts.
(c)            Solely to the extent requested by Purchaser, Merchant shall exercise renewal and/or extension options under the Leases and Contracts.
(d)            At any time prior to the earlier to occur of (i) the end of the Designation Rights Period applicable to a particular Lease or Contract and (ii) the Designation Rights Termination Date, Purchaser shall have the right, which right may be exercised at any time and from time to time, to file a Lease/Contract Assumption Notice in the Bankruptcy Cases designating the assignee (which may in certain circumstances be Purchaser, any of the entities comprising Purchaser, any of their respective affiliates, and/or a new entity created by any of the foregoing) of one or more Leases and/or Contracts (which may occur without further order of the Bankruptcy Court pursuant to the Approval Order) and setting forth the proposed cure amount due pursuant to section 365 of the Bankruptcy Code.  The Approval Order shall provide that (a) the counterparties to the Leases or Contracts identified in any Lease/Contract Assumption Notice shall have twenty-one days to object to the proposed assumption and assignment, (b) if no objection to the proposed assumption and assignment of a Lease or Contract is timely received, such Lease or Contract shall, upon payment of the applicable cure payment, if any, to the applicable counterparty, automatically be deemed assumed by Merchant and assigned to the assignee identified in the Lease/Contract Assumption Notice pursuant to section 365 of the Bankruptcy Code, without further order of the Bankruptcy Court or further action by any person or entity, and (c) if an objection to the proposed assumption and assignment of a Lease or Contract is timely received, such Lease or Contract shall not be assumed or assigned until such objection is resolved by agreement of the applicable counterparty or order of the Bankruptcy Court.
(e)            The designee under any Lease/Contract Assumption Notice shall be required, if requested by the applicable counterparty, to provide adequate assurance of future performance with respect to such Lease or Contract if the applicable counterparty so requests.
(f)            Merchant shall have no responsibility for any cure amounts with respect to any Lease or Contract assumption and assignment.
14.2            Asset Designation Rights.
(a)            Upon the occurrence of the Closing, Agent shall have the exclusive right  to market and sell, and/or otherwise designate the purchasers, licensees, transferees, and/or
 
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assignees of (which may in certain circumstances be Purchaser, any of the entities comprising Purchaser, any of their respective affiliates, and/or a new entity created by any of the foregoing), any or all of the Assets free and clear of all liens, claims, and encumbrances thereon, without further order of the Bankruptcy Court (the “Asset Designation Rights”).  Subject to Agent’s payment obligations hereunder, Agent is authorized to execute, in the name of and as agent for Merchant, any and all deeds, bills of sale, and other instruments or documents necessary to effectuate the sale, transfer, or other conveyance of any of the Assets.
(b)            Pursuant to the Approval Order, the sale or other conveyance of any Assets reflected in Asset Designation Notices filed in the Bankruptcy Cases from time to time by the Agent shall be automatically effective on the date reflected in the applicable Asset Designation Notice and subject to the satisfaction of any closing conditions reflected therein, and the sale, license, transfer, or other conveyance of such Assets shall be free and clear of all liens, claims, and encumbrances without further order of the Bankruptcy Court, provided, however, that nothing in the Approval Order shall inhibit the ability of Agent to seek other or further orders of the Court in connection with the sale or other disposition of any Assets.
(c)            Except to the extent provided for by the Wind-Down Budget, the costs of maintaining the Assets available for marketing and sale shall constitute Expenses.  All costs of effectuating assumption and assignment shall be deemed an Expense hereunder.
Section 15.  Miscellaneous.
15.1            Signage.  On April 5, 2018, the Merchant purchased the signage, exclusive of freight, required for the Sale as set forth on Exhibit 15 directly from the sign vendor.  The signage shall be delivered to the Stores so as to be received in accordance with Agent’s instructions on or before the Sale Commencement Date.  Upon entry of the Approval Order and simultaneous with the funding of the Cash Purchase Price, the Agent shall reimburse Merchant for one hundred percent (100%) of Merchant’s actual (without mark-up or lift) documented out of pocket costs in an amount not to exceed $3,000,000 and shall directly pay as an Expense the freight costs associated with shipping such signage to the Stores.
15.2            Notices.  All notices and communications provided for pursuant to this Agreement shall be in writing and sent by electronic mail, as follows:
 
If to Merchant:
 
The Bon-Ton Stores, Inc.
2801 East Market Street
York, PA 17402
Attention:
     
  With copies (which shall not constitute notice) to
   
 
Malfitano Partners
Joseph A. Malfitano, PLLC
747 Third Ave., 2nd Floor 
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New York, NY 10017 
  Attn:  Joseph A. Malfitano (jm@malfitanopartners.com)
 
 
 
 
If to Purchaser:
 
GA Retail, Inc.
 
Attn:  
Scott Carpenter (scarpenter@greatamerican.com)
   
Alan Forman (aforman@brileyfin.com)
     
  and   
     
  Tiger Capital Group, LLC
  Attn:   Christopher Huber (chuber@tigergroup.com) 
    Mark Naughton (mnaughton@tigergroup.com
     
  and   
     
  Wilmington Savings Fund Society, FSB
  Attn:  Patrick J. Healy (phealy@wsfsbank.com) 
     
  With copies (which shall not constitute notice) to:
     
 
Lowenstein Sandler LLP
Counsel to Great American Group WF LLC 
  Attn: Kenneth A. Rosen (krosen@lowenstein.com)
    Andrew Behlmann (abehlmann@lowenstein.com) 
     
  and   
     
 
Kilpatrick Townsend & Stockton LLP
Counsel to WSFS
  Attn:  David Posner (dposner@kilpatricktownsend.com)
     
  and   
     
 
Jones Day
Counsel to Second Lien Noteholders 
  Attn: 
Sidney P. Levinson (slevinson@jonesday.com)
    Joshua M. Mester (jmester@jonesday.com
    John Kane (jkkane@jonesday.com)
15.3            Governing Law/Exclusive Jurisdiction.  This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware without reference to any conflict of laws provisions thereof, except where governed by the Bankruptcy Code.  Each of the Parties irrevocably and unconditionally submits, for itself and its properties, to the exclusive jurisdiction of the Bankruptcy Court, in any action or proceeding arising out of or relating to this Agreement.
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15.4            Amendments.  This Agreement may not be modified except in a written instrument executed by all of the Parties, provided that any amendment or modification to Section 3.1(f) or 11.2(f) shall require the consent of the Committee.
15.5            No Waiver.  No consent or waiver by any Party, express or implied, to or of any breach or default by the other in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such other Party of the same or any other obligation of such Party.  Failure on the part of any Party to complain of any act or failure to act by the other Party or to declare the other Party in default, irrespective of how long such failure continues, shall not constitute a waiver by such Party of its rights hereunder.
15.6            Currency.  All reference to dollars in this Agreement and all schedules, exhibits, and ancillary documents related to this Agreement shall refer to U.S. dollars.
15.7            Successors and Assigns.  This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and assigns, including, but not limited to, any chapter 11 or chapter 7 trustee; provided, however, that this Agreement may not be assigned by any of the Parties without the prior written consent of the other, provided further that notwithstanding the foregoing, GA and Tiger may each collaterally assign this Agreement and their rights thereunder to their respective lenders.
15.8            Execution in Counterparts.  This Agreement may be executed in one or more counterparts.  Each such counterpart shall be deemed an original but all such counterparts together shall constitute one and the same agreement.  This Agreement, to the extent signed and delivered by means of a facsimile machine, electronic mail, or other electronic transmission in which the actual signature is evident, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.  At the request of any Party, each other Party shall re-execute original forms hereof and deliver them to all other Parties.  No Party shall raise the use of a facsimile machine, electronic mail, or other electronic transmission in which the actual signature is evident to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine, electronic mail or other electronic transmission in which the actual signature is evident as a defense to the formation of a contract and each Party forever waives such defense.  In proving this Agreement, it shall not be necessary to produce or account for more than one such counterpart signed by the Party against which enforcement is sought.
15.9            Section Headings.  The headings of sections of this Agreement are inserted for convenience only and shall not be considered for the purpose of determining the meaning or legal effect of any provisions hereof.
15.10            Wiring of Funds.  All amounts required to be paid under any provision of this Agreement shall be made by wire transfer of immediately available funds no later as 2:00 p.m. (Eastern Time) on the date that such payment is due, so long as all information necessary to complete the wire transfer has been received by the payor by 10:00 a.m. (Eastern Time) on the
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date that such payment is due.  In the event that the date on which any such payment is due is not a business day, then such payment shall be made by wire transfer on the next business day.
15.11            Deposit.  Pursuant to the Bidding Procedures, Agent has provided a cash deposit in the amount of $32,700,000 (the “Deposit”), which is being held in escrow by co-counsel to Merchant, Young Conaway Stargatt & Taylor, LLP (the “Escrow Agent”).  At the closing, the Deposit shall be released from escrow by the Escrow Agent and applied to the Cash Purchase Price.  In the event the Closing fails to occur, then, only upon entry of a final and non-appealable order of the Bankruptcy Court determining that such failure was the result of Purchaser’s sole, material, non-excusable breach of this Agreement, then Merchant shall be entitled to retain the Deposit as liquidated damages as Merchant’s sole remedy for such breach.
15.12            Nature of Remedies.  No failure to exercise and no delay in exercising, on the part of the Agent, any right, remedy, power, privilege or adjustment hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, privilege, or adjustment hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, privilege, or adjustment.
15.13            Entire Agreement.  This Agreement contains the entire agreement between the Parties with respect to the transactions contemplated hereby and supersedes and cancels all prior agreements, including, but not limited to, all proposals, letters of intent or representations, written or oral, with respect thereto
15.14            Agent/Purchaser.  Each party hereto acknowledges and agrees that any payment obligation of Purchaser and Agent hereunder is binding upon both the Agent and Purchaser and they shall be jointly and severally responsible therefor.  Any action permitted under this Agreement to be taken by Purchaser may be undertaken by Agent on behalf of all entities comprising Purchaser, subject to any agreements between or among the entities comprising Purchaser, the Second Lien Noteholders, or any of them.
 

[ signature page follows ]

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IN WITNESS WHEREOF, the Parties hereby execute this Agreement by their respective duly authorized representatives as a sealed instrument as of the day and year first written above.
  GA RETAIL, INC.  
       
 
By:
   
  Name:     
  Its:    
       
  TIGER CAPITAL GROUP, LLC  
       
 
By:
   
  Name:     
  Its:    
       
  WILMINGTON SAVINGS FUND SOCIETY, FSB  
     
  As Successor Trustee and Collateral Agent for the Second-Lien Notes   
       
 
By:
    
  Name:     
  Its:    
       
  THE BON-TON STORES, INC., on behalf of itself and the other entities comprising Merchant  
       
 
By:
    
  Name:     
  Its:    
       

 
 

Case 18-10248-MFW
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List of Exhibits

Exhibit 1(a)(1)
Stores
Exhibit 1(a)(2)
Distribution Centers
Exhibit 1(d)
Owned Real Estate
Exhibit 1(e)
Intellectual Property
Exhibit 2(b)(iv)
Form of Asset Designation Notice 
Exhibit 2(b)(xiii)
Form of Lease/Contract Assumption Notice 
Exhibit 3.1(c)
Wind-Down Budget
Exhibit 4.1(c)
Per Store, Per Diem Occupancy Expenses.
Exhibit 8.1
Sale Guidelines

 
 
 

 
Case 18-10248-MFW
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The Bon-Ton Stores, Inc.
Exhibit 1 (a) (1)
Full Company Liquidation Stores Closing List
 
Store List
 
Store #          Store Name
Address
City
State
Zip
Selling Sq Ft
 
2 Hanover
 
400 Eisenhower Drive
 
Hanover
 
PA
 
17331
 
71,636
4 Lewistown
111 East Market Street
Lewistown
PA
17044
46,660
5 Martinsburg
800 Foxcroft Avenue
Martinsburg
WV
25401
65,780
6 Chambersburg
100 Chambersburg Mall
Chambersburg
PA
17201
55,621
7 Park City Furn
870 Plaza Boulevard
Lancaster
PA
17601
32,000
8 Park City
600 Park City Center
Lancaster
PA
17601
178,967
12 Cumberland
1262 Vocke Rd
LaVale
MD
21502
75,134
14 Galleria
2899 Wh teford Road, Ste 282
York
PA
17402
131,915
15 Uniontown
1800 Mall Run Road
Uniontown
PA
15401
80,511
17 Indiana
2334 Oakland Avenue Suite 35
Indiana
PA
15701
60,465
18 Warren
4000 Market Street
Warren
PA
16365
50,070
19 Wilton
3065 Route 50
Saratoga Springs
NY
12866
71,740
21 Oil C ty
6945 US 322
Cranberry
PA
16319
45,168
22 Br ck
80 Brick Plaza
Brick
NJ
08723
53,500
25 Binghamton
601-635 Harry L Dr.
Johnson City
NY
13790
81,112
27 Williamsport
300 Lycoming Mall Circle
Pennsdale
PA
17756
60,952
28 Bloomsburg
225 Columbia Mall Drive
Bloomsburg
PA
17815
46,060
29 Queensgate
2081 Springwood Road
York
PA
17403
114,608
31 Camp Hill
3525 Gettysburg Road
Camp Hill
PA
17011
145,200
32 Colonial Park
4600 Jonestown Road
Harrisburg
PA
17109
136,540
35 Reading
1665 State Hill Road
Wyomissing
PA
19610
159,368
36 Greensburg
5256 Rt 30
Greensburg
PA
15601
100,003
37 Washington
1500 W. Chestnut Street
Washington
PA
15301
78,129
38 Midway
1066 Wyoming Avenue
Wyoming
PA
18644
66,026
39 Wilkes-Barre
14 Wyoming Valley Mall
Wilkes-Barre
PA
18702
159,454
43 Newburgh
1401 Route 300  Ste 139
Newburgh
NY
12550
61,785
44 Ithaca
40 Catherwood Road
Ithaca
NY
14850
62,225
46 Jamestown
318 E. Fairmount Avenue
Lakewood
NY
14750
59,860
48 Westfield
443 E. Main Street
Westfield
MA
01085
74,939
62 Eastern Hills
4545 Transit Road
Williamsville
NY
14221
151,208
63 Sheridan
1706 Sheridan Drive
Buffalo
NY
14223
124,284
64 Southgate
1090 Union Road
West Seneca
NY
14224
100,500
65 McKinley
3701 McKinley Parkway
Blasdell
NY
14219
97,204
67 Lockport
5737 S. Transit Road
Lockport
NY
14094
82,000
68 Olean
402 N. Union Street
Olean
NY
14760
73,017
69 Niagara
6929 Williams Road
Niagara Falls
NY
14303
88,128
72 Bethlehem
2524 Schoenersville Road
Bethlehem
PA
18017
108,650
73 S. Allentown
3300 Lehigh Street
Allentown
PA
18103
101,841
76 Easton
146 Palmer Park Mall
Easton
PA
18045
115,062
78 Quakertown
751 SW End Blvd.
Quakertown
PA
18951
88,126
81 Doylestown
456 North Main Street
Doylestown
PA
18901
61,915
84 Elmira
3300 Chambers Road South, Ste. 50
Horseheads
NY
14845
74,752
94 Camillus
5301 W. Genesee Street
Camillus
NY
13031
64,700
101 Dayton Mall
2700 St. Rt. 725
Dayton
OH
45459
212,000
107 Huber Heights
8221 Old Troy Pike
Huber Heights
OH
45424
101,840
115 Beavercreek
2727 Fairfield Commons
Beavercreek
OH
45431
151,740
117 Piqua
987 E. Ash Street
Piqua
OH
45356
60,000
118 Athens
1004 E. State Street
Athens
OH
45701
42,253
119 New Philadelphia
400 Mill Avenue, Ste. C3
New Philadelphia
OH
44663
73,310
121 Kettering
2050 E. Dorothy Lane
Dayton
OH
45420
87,317
125 Lancaster
1730 River Valley Circle S.
Lancaster
OH
43130
52,725
126 Heath
771 S. 30th Street
Newark
OH
43056
73,185
128 Zanesville
3575 Maple Avenue
Zanesville
OH
43701
70,847
129 Marion
1475 Marion Waldo Road
Marion
OH
43302
75,673
130 Chillicothe
1080 N. Br dge Street
Chillicothe
OH
45601
55,940
132 Richmond
601 East Main St.
R chmond
IN
47374
100,000
137 Sandusky
4314 Milan Road
Sandusky
OH
44870
80,398



 
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The Bon-Ton Stores, Inc.
Exhibit 1 (a) (1)
Full Company Liquidation Stores Closing List
 
Store List
 
Store #          Store Name
Address
City
State
Zip
Selling Sq Ft
 
138 Plover
 
1780 Plover Road
 
Plover
 
WI
 
54467
 
54,564
140 Kohler
4030 Hwy #28
Sheboygan Falls
WI
53085
54,541
142 West Bend
1291 W. Paradise Road
West Bend
WI
53095
61,011
143 Coldwater
373 N. Willowbrook Rd. Suite Z
Coldwater
MI
49036
54,146
144 Alliance
Carnation Mall, 2500 W. State Street
Alliance
OH
44601
55,552
147 Wooster
4095 Burbank Road
Wooster
OH
44691
53,446
148 Morgantown
9550 Mall Road
Morgantown
WV
26501
71,032
150 Warsaw
2856 Frontage Road
Warsaw
IN
46580
80,320
151 Frankfort
202 Limestone Drive
Frankfort
KY
40601
53,954
152 Findlay
1800 Tiffin Avenue
Findlay
OH
45840
74,841
153 Bowling Green
1234 N Main Street
Bowling Green
OH
43402
40,000
154 Howell
3599 E. Grand River Avenue
Howell
MI
48843
72,873
155 Westgate
3311 Secor Road
Toledo
OH
43606
154,000
159 Monroe
2121 Monroe Street
Monroe
MI
48161
99,363
161 Midland
6830 Eastman Avenue
M dland
MI
48642
64,141
163 Jackson
1826 W. Michigan Avenue
Jackson
MI
49202
70,425
173 Muscatine
1903 Park Avenue
Muscatine
IA
52761
43,906
175 Mattoon
700 Broadway Avenue E
Mattoon
IL
61938
54,266
178 Jasper
3875 Newton Street
Jasper
IN
47546
55,238
179 Terre Haute
3401 US Hwy 41 S
Terre Haute
IN
47802
70,380
182 Muncie
3501 N. Granville Avenue
Muncie
IN
47303
80,000
184 Kokomo
1156 South 17th Street
Kokomo
IN
46902
60,135
186 Green Bay Furn
201 Bay Park Square
Green Bay
WI
54304
53,265
189 Southtown
2400 State Route 725
Dayton
OH
45459
54,848
199 Fort Wayne
4201 Coldwater Road
Fort Wayne
IN
46805
122,000
203 Clarksburg
2700 Meadowbrook Mall
Bridgeport
WV
26330
124,285
205 Ashland
10699 US Route 60
Ashland
KY
41102
70,000
206 Kanawha
5700 MacCorkle Avenue SE
Charleston
WV
25304
80,000
209 Winfield
200 Liberty Sq. Shopping Center
Hurricane
WV
25526
70,476
310 St Cloud
600 W St. Germain St.
St. Cloud
MN
56301
93,900
311 Virginia
1440 S 12th Avenue
Virginia
MN
55792
66,582
312 Rice Lake
2900 South Main
R ce Lake
WI
54868
54,661
313 Fergus Falls
2001 West Lincoln Avenue Ste. 2
Fergus Falls
MN
56537
39,536
314 New Ulm
110 N Minnesota Street
New Ulm
MN
56073
47,277
315 Watertown
1300 9th Avenue SE
Watertown
SD
57201
40,320
316 Alexandria
3015 Hwy 29 S Ste. 4037
Alexandria
MN
56308
70,314
317 Havre
1753 Highway 2 NW
Havre
MT
59501
47,161
318 LaCrosse
4000 State Road 16
LaCrosse
WI
54601
41,344
319 Albert Lea
2440 Bridge Avenue
Albert Lea
MN
56007
64,436
320 Moorhead
420 Center Ave, Ste. 1
Moorhead
MN
56560
106,150
321 Bismarck
641 Kirkwood Mall
Bismarck
ND
58506
92,500
323 Brainerd
14136 Baxter Drive Ste. 1
Baxter
MN
56425
82,879
325 Billings
300 S 24th Street W, Ste. E100
Billlings
MT
59102
60,224
326 Ottumwa
1110 Quincy Ave
Ottumwa
IA
52501
55,282
327 Great Falls
1200 10th Avenue South
Great Falls
MT
59405
70,000
328 Rap d City
2200 N Maple Avenue
Rapid C ty
SD
57701
88,977
329 Rock Springs
2445 Foothill Blvd.
Rock Springs
WY
82901
60,018
330 Dickinson
Prairie Hills Mall
Dickinson
ND
58601
42,980
331 Minot
2400 10th Street SW
Minot
ND
58701
52,468
332 Willmar
1605 S. 1st. Street
Willmar
MN
56201
88,701
334 Norfolk
1700 Market Lane
Norfolk
NE
68701
77,365
335 Hastings
3001 W 12th Ste. 4
Hastings
NE
68901
52,950
336 North Platte
1100 South Dewey
North Platte
NE
69101
43,500
338 Kearney
4915 2nd Avenue
Kearney
NE
68847
87,500
339 Scottsbluff
2302 Frontage Road Box 29
Scottsbluff
NE
69361
72,699
340 Kalispell
20 North Main
Kalispell
MT
59901
80,000
341 Blaine
301 Northtown Dr.
Blaine
MN
55434
130,722



 
Case 18-10248-MFW
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The Bon-Ton Stores, Inc.
Exhibit 1 (a) (1)
Full Company Liquidation Stores Closing List
 
Store List
 
Store #          Store Name
Address
City
State
Zip
Selling Sq Ft
 
342 Stillwater
 
2001 Washington Avenue
 
Stillwater
 
MN
 
55082
 
95,360
343 Aberdeen
3315 6th Avenue Southeast Ste. 2
Aberdeen
SD
57401
79,668
344 Grand Junction
2424 US Highway 6 & 50
Grand Junct on
CO
81505
72,279
345 Mankato
1850 Adams Street
Mankato
MN
56001
71,046
348 Bemidji
1401 Paul Bunyan Drive NW
Bemidji
MN
56601
56,392
349 Butte
3100 Harrison Avenue Ste. 5
Butte
MT
59701
65,000
351 Missoula
2901 Brooks Avenue
Missoula
MT
59801
45,167
352 Fargo
3902 13th Avenue South
Fargo
ND
58103
103,200
353 Rosedale
1675 West Highway 36
Roseville
MN
55113
149,908
354 Midway
1400 University Avenue West
St. Paul
MN
55104
124,136
355 Southtown
7831 Southtown Center
Bloomington
MN
55431
133,103
356 Edina
300 Southdale Center
Edina
MN
55435
143,608
357 Rochester
1201 SW 12th Street
Rochester
MN
55902
78,130
401 Ames
2801 N Grand Ave
Ames
IA
50010
49,888
402 Mason C ty
102 S Delaware Avenue
Mason City
IA
50401
59,500
403 Fort Dodge
217 S. 25th St., Ste 33
Fort Dodge
IA
50501
54,179
404 Marshalltown
2500 S Center Street
Marshalltown
IA
50158
42,142
406 Oak View
3201 S 144th Street
Omaha
NE
68144
149,326
408 Waterloo
2060 Crossroads Blvd.
Waterloo
IA
50702
86,781
409 Austin
1405 18th Avenue NW
Austin
MN
55912
45,277
410 Merle Hay
3800 Merle Hay Road Ste. 100
Des Moines
IA
50310
165,000
412 Coralville
1421 Coral Ridge Avenue
Coralville
IA
52241
98,458
413 Lindale Plaza
4444 1st Avenue NE
Cedar Rapids
IA
52404
100,000
414 Jordan Creek
101 Jordan Creek Parkway, #6000
West Des Moines
IA
50265
159,673
418 Dubuque
555 John F. Kennedy Road
Dubuque
IA
52002
126,839
419 Westroads
707 N 102nd
Omaha
NE
68114
171,800
421 Davenport
320 W Kimberly Road
Davenport
IA
52806
104,913
422 Moline
4600 16th Street
Moline
IL
61265
107,145
423 Southridge
1111 E Army Post Road, Ste. 2003
Des Moines
IA
50315
105,183
424 Sioux Falls
3500 W Empire Mall
Sioux Falls
SD
57106
105,292
429 Southern Hills
4380 Sergeant Road
Sioux C ty
IA
51106
92,695
430 West Burlington
550 S Gear Avenue
West Burlington
IA
52655
66,705
432 Eau Claire
4850 Golf Road
Eau Claire
WI
54701
102,000
437 Valley West
1551 Valley West Drive Ste. 200
West Des Moines
IA
50266
205,248
438 Muskegon
5580 Harvey Street
Muskegon
MI
49444
106,131
439 Sturgeon Bay
58 N 3rd Avenue
Sturgeon Bay
WI
54235
60,000
440 Grandville
3668 Rivertown Parkway
Grandville
MI
49418
150,081
443 Traverse City
1776 Garfield Road
Traverse C ty
MI
49684
49,666
445 Lansing
5220 W Saginaw Highway
Lansing
MI
48917
103,000
447 Lincoln
3 Gateway Mall
Lincoln
NE
68505
100,000
448 Marshfield
503 E Ives Street
Marshfield
WI
54449
48,295
449 Duluth
1600 Miller Trunk Highway
Duluth
MN
55811
140,999
451 Grand Island
3404 W 13th Street
Grand Island
NE
68801
60,081
457 Bay Park
101 Bay Park Square
Green Bay
WI
54304
145,672
463 Holland
12331 James Street
Holland
MI
49424
69,148
464 Okemos
1982 W Grand River Avenue
Okemos
MI
48864
168,757
465 Port Huron
4450 24th Avenue
Fort Gratiot
MI
48060
70,536
475 Bay City
4131 E Wilder Road
Bay C ty
MI
48706
110,536
501 Bloomington
1601 Empire St.
Bloomington
IL
61701
131,606
502 LaSalle Peru
3940 Route 251 Ste 01
Peru
IL
61354
87,500
503 Pekin
3536 Court St.
Pekin
IL
61554
82,100
504 Champaign
2000 North Neil St.
Champaign
IL
61820
154,302
505 Galesburg
1150 W. Carl Sandburg Dr.
Galesburg
IL
61401
84,894
507 Quincy
3347 Broadway
Quincy
IL
62301
106,400
508 Forsyth
1005 Hickory Point Mall
Forsyth
IL
62535
125,455
510 Janesville
2500 Milton Avenue
Janesville
WI
53545
96,000
511 Sterling
2900 E. Lincolnway
Sterling
IL
61081
60,000



 
Case 18-10248-MFW
Doc 632-1
Filed 04/18/18
Page 42 of 60
 
The Bon-Ton Stores, Inc.
Exhibit 1 (a) (1)
Full Company Liquidation Stores Closing List
 
Store List
 
Store #          Store Name
Address
City
State
Zip
Selling Sq Ft
 
512 Cherryvale
 
7200 Harrison Avenue
 
Rockford
 
IL
 
61112
 
128,330
515 Joliet
3340 Mall Loop Drive
Joliet
IL
60435
128,000
516 Spring Hill
4000 Spring Hill Ring Rd
Dundee
IL
60118
128,000
517 Randhurst
1025 Center Dr.
Mount Prospect
IL
60056
205,056
518 White Oaks
2501 W. Wabash
Springfield
IL
62704
125,000
519 Milwaukee Grand Ave
331 W Wisconsin Avenue
Milwaukee
WI
53203
124,055
520 Bayshore
5701 N Lydell Avenue
Glendale
WI
53217
167,606
521 Racine
5500 Durand Avenue
Racine
WI
53406
106,157
522 Brookfield
15875 W Bluemound Road
Brookfield
WI
53005
218,705
523 Southridge
5300 S 76th Street
Greendale
WI
53129
221,000
526 East Towne
53 East Towne Mall
Madison
WI
53704
138,755
527 Mayfair
2400 N Mayfair Road
Wauwatosa
WI
53226
210,713
528 West Towne
36 West Towne Mall
Madison
WI
53719
139,580
529 Brookfield Furniture
18615 W Bluemound Road
Brookfield
WI
53045
55,000
530 Evergreen
9700 S Western Ave
Evergreen Park
IL
60805
120,000
531 Yorktown
230 Yorktown Shopping Center
Lombard
IL
60148
217,887
532 Woodmar
6600 Indianapolis Blvd.
Hammond
IN
46320
111,080
533 Edens Plaza
3200 Lake Avenue
Wilmette
IL
60091
160,578
535 Stratford Square
4 Stratford Square
Bloomingdale
IL
60108
147,116
538 Chicago Ridge
9800 S Ridgeland Ave
Ch cago Ridge
IL
60415
154,241
539 Harlem Irving
4200 N Harlem Avenue
Norridge
IL
60706
168,058
541 North Riverside
7505 W Cermak Road
North Riverside
IL
60546
180,550
542 Southlake
1995 Southlake Mall
Merrillville
IN
46410
144,123
543 Orland Square
4 Orland Square
Orland Park
IL
60462
163,370
546 Yorktown Furniture
2 Yorktown Mall Drive
Lombard
IL
60148
45,708
547 Edens Furniture
3232 Lake Avenue
Wilmette
IL
60091
34,830
548 Schaumburg Furn ture
830 E Golf Road
Schaumburg
IL
60173
58,525
549 Michigan City
305 W US Highway 20
M chigan City
IN
46360
81,420
550 Hawthorn
3 Hawthorne Center
Vernon Hills
IL
60061
112,121
551 Ford City
7601 S Cicero Avenue
Ch cago
IL
60652
155,513
552 Lincolnwood
3333 Touhy Avenue
Lincolnwood
IL
60712
122,650
553 Bradley
1602 N State IL- 50
Bourbonnais
IL
60914
142,200
554 St Charles
3850 E Main Street
St. Charles
IL
60174
141,808
555 Hawthorn Furniture
480 East Ring Road
Vernon Hills
IL
60540
46,290
556 Fox Valley
3 Fox Valley Center
Aurora
IL
60505
131,267
561 Orland Park Furniture
66 Orland Square Drive
Orland Park
IL
60462
71,783
563 Grand Prairie
5203 W. War Memorial Drive
Peoria
IL
61615
181,238
571 Laurel Park
17624 Newburgh Rd
Livonia
MI
48152
148,800
572 Rochester Hills
400 N.Adams St.
Rochester Hills
MI
48309
121,380
573 Partridge Creek
17480 Hall Rd.
Clinton Township
MI
48038
116,254
579 Naperville Frn Clear.
1835 W. Jefferson
Naperville
IL
60540
30,000
       
Count: 212
 



 
Case 18-10248-MFW
Doc 632-1
Filed 04/18/18
Page 43 of 60
 
The Bon-Ton Stores, Inc.
Exhibit 1 (a) (2)
Distribution Centers

 
Store List
 
Store #          Store Name
Address
City
State
Zip
Selling Sq Ft
 
50 Whitehall - DC
 
3585 South Church St
 
Whitehall
 
PA
 
18052
 
n/a
198 Fairborn - DC
1340 E Dayton Yellow Springs Rd
Fairborn
OH
45324
n/a
460 West Jefferson - DC
115 Enterprise Parkway
West Jefferson
OH
43162
n/a
950 Rockford - DC
4650 Shepherd Trail
Rockford
IL
61103
n/a
       
Count: 4
 

 

 

 
Case 18-10248-MFW
Doc 632-1
Filed 04/18/18
Page 44 of 60
 
The Bon-Ton Stores, Inc.
Exhibit 1 (d)
Owned Real Estate
 
Store List
 
Store #          Banner
Store Name
Address
City
State
Zip
Selling Sq Ft
 
4 Bon-Ton
 
Lewistown
 
111 East Market Street
 
Lewistown
 
PA
 
17044
 
50,000
31 Bon-Ton
Camp Hill
3525 Gettysburg Road
Camp Hill
PA
17011
145,375
36 Bon-Ton
Greensburg
Westmoreland Mall, 5256 Route 30
Greensburg
PA
15601
99,800
67 Bon-Ton
Lockport
5737 South Transit Road
Lockport
NY
14094
81,431
128 Elder-Beerman
Zanesville
3575 Maple Avenue
Zanesville
OH
43701
70,847
132 Elder-Beerman
Richmond
601 East Main Street
Richmond
IN
47301
111,350
310 Herberger’s
St. Cloud
600 West Saint Germain Street
St. Cloud
MN
56301
168,755
327 Herberger’s
Great Falls
1200 10th Avenue South
Great Falls
MT
59405
81,969
354 Herberger’s
Midway
1400 University Avenue
St. Paul
MN
55104
124,136
410 Younkers
Merle Hay
3800 Merle Hay Road, Su te 100
Des Moines
IA
50310
165,000
412 Younkers
Coralville
1421 Coral Ridge Avenue
Coralville
IA
52241
98,458
432 Younkers
Eau Claire
4850 Golf Road
Eau Claire
WI
54701
102,000
438 Younkers
Muskegon
5580 Harvey Street
Muskegon
MI
49444
106,131
440 Younkers
Grandville
3668 Rivertown Parkway
Grandville
MI
49418
150,081
449 Younkers
Duluth
1600 Miller Trunk Highway
Duluth
MN
55811
140,999
501 Bergner’s
Bloomington
1601 Empire Street
Bloomington
IL
61701
131,616
503 Bergner’s
Pekin
3500 Court Street
Pekin
IL
61553
82,100
508 Bergner’s
Forsyth
1005 Hickory Point Mall
Forsyth
IL
62535
126,056
514 Carson’s
Aurora Northgate
970 North Lake Street
Aurora
IL
60506
119,000
516 Carson’s
Spring Hill
4000 Spring Hill Mall
Dundee
IL
60118
128,000
518 Bergner’s
Wh te Oaks
2501 West Wabash
Springfield
IL
62704
125,000
521 Boston Store
Racine
5500 Durand Avenue
Racine
WI
53406
106,157
533 Carson’s
Edens Plaza
3200 Lake Avenue
Wilmette
IL
60091
155,000
549 Carson’s
Michigan City
305 West US Highway 20
Michigan C ty
IN
46360
76,121
550 Carson’s
Hawthorn
3 Hawthorne Center
Vernon Hills
IL
60061
112,121
556 Carson’s
Fox Valley
3 Fox Valley Center Drive
Aurora
IL
60504
120,000
572 Carson’s
Rochester Hills
400 North Adams Road
Rochester Hills
MI
48309
61,233
573 Carson’s
Partridge Creek
17480 Hall Road
Clinton
MI
48038
120,000
590 Carson’s
Rockford D.C.
4650 Shepherd Trail
Rockford -Owned
IL
61103
520,000
   
“Quincy Property”
Quincy
IL
   
         
Count: 30
 
 

 
Case 18-10248-MFW
Doc 632-1
Filed 04/18/18
Page 45 of 60
 
The Bon-Ton Stores, Inc.
Exhibit 1 (e)
Intellectual Property

BON TON ENTITIES TRADEMARKS
Reg Number
Serial Number
Name
Mark
966580
72435362
 
BRECKENRIDGE
1143734
73159353
 
CARSON PIRIE SCOTT
1395289
73471798
 
CARSONS
1332638
73495705
 
ELDER-BEERMAN
1392446
73543142
BON-TON STORES, INC., THE
STUART HUGHES
1397712
73543145
THE BON-TON DEPARTMENT STORES, INC.
SUSQUEHANNA TRAIL OUTFITTERS
1526191
73663359
 
PIZZA STRADA
1680687
74078995
 
THE BON-TON
1661242
74097054
 
THE BON-TON
1795407
74340081
 
YOUNKERS
1869666
74355074
 
CEZANI
2006730
74552885
Bon-Ton Trade Corp., The
ANDREA VICCARO
2006731
74552975
 
JENNY BUCHANAN
2001829
74553100
 
CUDDLE BEAR
1935197
74580597
CARSON PIRIE SCOTT II, INC. (F/K/A MCRAE’S, INC.)
MCRAE’S
2021357
74638895
 
COME TO THE RIGHT PLACE
2217957
75023572
CARSON PIRIE SCOTT II, INC. (F/K/A MCRAE’S, INC.)
NATIONAL BANK OF THE GREAT LAKES
2015874
75045762
 
JENNY BUCHANAN
2635572
75348627
 
(RELATIVITY)
2385966
75348885
 
LIVING QUARTERS
2278878
75410193
 
HERBERGER’S
2278879
75410395
THE BON-TON DEPARTMENT STORES, INC.
HERBERGER’S
2407600
75441794
 
STUDIO WORKS
2493154
75654658
 
LIVING QUARTERS
2412363
75857375
 
CHARGE AGAINST BREAST CANCER
2384258
75979374
 
RELATIVITY
2363348
75979521
 
CONSENSUS
 
76232809
BON-TON DEPARTMENT STORES, INC.
MADISON & MAX
3447275
76467824
CARSON PIRIE SCOTT II, INC. (F/K/A MCRAE’S, INC.)
SHE SHE LA LÀ
2856632
76975745
THE BON-TON DEPARTMENT STORES, INC.
MADISON & MAX
3292860
77035952
 
PARADISE COLLECTION
3436925
77055123
 
KENNETH ROBERTS PLATINUM
3483180
77183901
 
INTIMATE ESSENTIALS
3528518
77227149
 
EXERTEK
3709384
77359862
 
LITTLE MISS ATTITUDE
 
77364016
THE BON-TON DEPARTMENT STORES, INC.
AUTHENTIC U
3632950
77520071
 
CELEBRATIONS REGISTRY FOR VERY SPECIAL
OCCASIONS
3628605
77520170
 
CELEBRATIONS REGISTRY FOR VERY SPECIAL
OCCASIONS
3570064
77553578
 
STUDIO WORKS
3666012
77577377
 
BOSTON STORE
3848434
77630455
 
MISS ATTITUDE
3842899
77814203
 
BT JEWELED
3881265
77836970
 
KENNETH ROBERTS
3909131
77881965
 
LIVING QUARTERS
3892546
77969650
CARSON PIRIE SCOTT II, INC.
BERGNER’S
2765740
78116121
CARSON PIRIE SCOTT II, INC.
(RELATIVITY) DESIGN LAB
2934000
78191055
 
MISS ATTITUDE
 
78292100
CARSON PIRIE SCOTT II, INC. (F/K/A MCRAE’S,
INC.)
PERFECT PIMA
 
78560181
 
MARKET STREET EAST
3217597
78867113
THE BON-TON TRADE, LLC
SUSQUEHANNA TRAIL OUTFITTERS
3022152
78976395
 
BRECKENRIDGE
3069447
78976644
 
CHANTEUSE
 
85108157
THE BON-TON DEPARTMENT STORES, INC.
CUSTOMER FIRST
4143662
85194375
   
4139987
85225140
 
KENNETH ROBERTS
4143891
85247954
 
JB
 
85476397
THE BON-TON  STORES, INC.
AFFINITY
4259055
85495083
THE BON-TON DEPARTMENT STORES, INC.
ZOE&BELLA@BT
4552374
85715679
THE BON-TON DEPARTMENT STORES, INC.
CUDDLE BEAR
4357088
85733613
 
ZOE&BELLA @BT
4361044
85772207
CARSON PIRIE SCOTT II, INC.
PARADISE COLLECTION
4507524
85850871
 
STYLE ON THE STREET
4998553
85920357
 
DESIGN DISTRICT
4496279
85929876
 
TRENDÉVOUS
4532638
86044801
   
4626285
86144251
 
BEAUTY STATION
4736593
86261094
   
4991097
86433458
 
BEAUTY STATION
5191722
86532617
 
CHEF’S QUARTERS
5396972
86898865
 
ZOE&BELLA @BT
5005143
86979074
 
CHEF’S QUARTERS
5135982
87019592
 
SANTA’S PANTRY
 
87063073
 
LOVESTYLEREWARDS
 
87063086
THE BON-TON DEPARTMENT STORES  INC.
STYLEREWARDS
 
87368531
 
YULETIDE FARMS
 
87416731
 
DRESSOBSESSED
 
87418738
 
CLOSE TO HOME
 
87471882
 
THE BIG GRILL
 
87488334
 
MEYEWEAR
 
87492351
 
MEYEWEAR
 
87495174
 
FASHION TO GO
 
87495186
 
STYLE TO GO
 
87497118
 
STYLE 2 GO
 
87498911
 
FASHION 2 GO
 
87498969
 
TRAVEL QUARTERS
 
87505353
 
CUDDLE BEAR
 
87528193
 
LIVING QUARTERS
 
87535628
 
BETTER BRANDS. BIGGER SAVINGS.
 
87537827
 
ZOE&BELLA@BT
 
87626265
 
ZOE&BELLA@BT
 


 
Case 18-10248-MFW
Doc 632-1
Filed 04/18/18
Page 46 of 60
 
 
 
Reg Number  Serial Number Name Mark
 
87667636
 
EO
 
87697689
 
BUZZWORX
 
87706897
 
ZOE&BELLA@BT
 
87748141
 
MATTI & MAX
 
87762369
 
MATTI & MAX


 
  BON TON ENTITIES COPYRIGHTS    
Registration Number
Title
Type
 
TX4880277
Doing a good business: 100 years at the Bon-Ton
Literary Work
TX1896055
Elder-Beerman Stores Corporation: a tradition of success
Literary Work
TX5900922
A tale from Flurryville: the Berg’s big surprise
Literary Work
TX5744198
Wow! what a cow: a tale from funky
Literary Work
TX5638101
A tale from Flurryville: Arctic Bart finds his happy heart
Literary Work
TX5658257
Holiday celebrations with recipes from Younkers
Literary Work
TX6497902
Baxter shares his bear
Literary Work
TX2217381
Parisian celebrating a century of service
Literary Work
TX3196448
Presentation - a manual of standards and guidelines
Literary Work
VA239074
Riverchase Galleria  Parisian grand opening
Visual Arts
VA81949
Made in Wisconsin
Visual Arts
VA6480
Cratchits’ Christmas dinner
Visual Arts

 
 

 
Case 18-10248-MFW
Doc 632-1
Filed 04/18/18
Page 47 of 60
 
Exhibit 2(b)(iv)
Form of Asset Designation Notice
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE

In re:
 
THE BON-TON STORES, INC., et al.,1
 
Debtor.
 
 
Chapter 11
 
Case No. 18-10248 (MFW)
 
Jointly Administered


NOTICE OF DESIGNATION OF ASSET PURCHASER

PLEASE TAKE NOTICE that pursuant to the Order Approving Debtors’ Entry Into Agency Agreement and Consummation of the Transactions Contemplated Thereby (the “Approval Order”) [D.I. ____],2 Purchaser hereby designates the entity identified on Schedule A (“Designee”) annexed hereto as the assignee of the Assets identified on Schedule A (the Designated Assets”) pursuant to the agreement between Purchaser, as agent for the Debtors, and Designee, an abstract of which is annexed hereto as Exhibit A (the “Purchase Agreement”).
 
PLEASE TAKE FURTHER NOTICE that pursuant to the Approval Order, upon the closing of the transaction pursuant to the Purchase Agreement, the Designated Assets shall be deemed conveyed to Designee by the Debtors free and clear of all liens, claims, encumbrances, and other interests of any kind.
 





1
The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are: The Bon-Ton Stores, Inc. (5229); The Bon-Ton Department Stores, Inc. (9309); The Bon-Ton Giftco, LLC (2805); Carson Pirie Scott II, Inc. (2140); Bon-Ton Distribution, LLC (5855); McRIL, LLC (5548); Bonstores Holdings One, LLC (8574); Bonstores Realty One, LLC (8931); Bonstores Holdings Two, LLC (8775); and Bonstores Realty Two, LLC (9075). The headquarters for the above-captioned Debtors is 2801 East Market Street, Bldg. E, York, Pennsylvania 17402.
2
Capitalized terms used but not defined in this Notice have the meanings given thereto in the Approval Order.
 

 
Case 18-10248-MFW
Doc 632-1
Filed 04/18/18
Page 48 of 60
 
 
 
Dated: [_], 2018
[COUNSEL TO PURCHASER]
Wilmington, Delaware

_____________________________

 
 

 

 
Case 18-10248-MFW
Doc 632-1
Filed 04/18/18
Page 49 of 60
 
Exhibit 2(b)(iv)
Form of Asset Designation Notice
 
Schedule A


Designated Assets
Designee
   
 
 
 

 

 
Case 18-10248-MFW
Doc 632-1
Filed 04/18/18
Page 50 of 60
 
Exhibit 2(b)(xiii)
Form of Lease/Contract Assumption Notice
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
 

In re:
 
THE BON-TON STORES, INC., et al.,1
 
Debtor.
 
 
Chapter 11
 
Case No. 18-10248 (MFW)
 
Jointly Administered


NOTICE OF ASSUMPTION AND ASSIGNMENT OF [LEASES] / [CONTRACTS]

PLEASE TAKE NOTICE that pursuant to the Order Approving Debtors’ Entry Into Agency Agreement and Consummation of the Transactions Contemplated Thereby (the “Approval Order”) [D.I.___],2 Purchaser hereby designates the entities identified on Schedule A annexed hereto as the assignees of the corresponding Leases and/or Contracts.
 
PLEASE TAKE FURTHER NOTICE that the cure amounts for the Leases and/or Contracts to be assigned pursuant to this Notice and the Approval Order are set forth on Schedule A.
 
PLEASE TAKE FURTHER NOTICE that objections, if any, to the assumption and assignment of any Lease or Contract must be filed with the Bankruptcy Court and served on counsel for Purchaser at the addresses (including e-mail addresses) set forth in the signature block of this Notice on or before [_], 2018.3 If no timely objection to the assumption and assignment of a Lease or Contract is received, the assumption and assignment of such Lease or Contract will become effective automatically pursuant to the Approval Order on the date
 
 

1
The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are: The Bon-Ton Stores, Inc. (5229); The Bon-Ton Department Stores, Inc. (9309); The Bon-Ton Giftco, LLC (2805); Carson Pirie Scott II, Inc. (2140); Bon-Ton Distribution, LLC (5855); McRIL, LLC (5548); Bonstores Holdings One, LLC (8574); Bonstores Realty One, LLC (8931); Bonstores Holdings Two, LLC (8775); and Bonstores Realty Two, LLC (9075). The headquarters for the above-captioned Debtors is 2801 East Market Street, Bldg. E, York, Pennsylvania 17402.
2
Capitalized terms used but not defined in this Notice have the meanings given thereto in the Approval Order.
3
[First business day that is at least 15 days from notice date]
 
 

 
Case 18-10248-MFW
Doc 632-1
Filed 04/18/18
Page 51 of 60
 
 
identified on Schedule A.  If a timely objection to the assumption and assignment of a Lease or Contract is timely filed and served by an entity with appropriate standing, such assignment shall not become effective until agreed to by the parties or ordered by the Court.
 
Dated: [_], 2018
[COUNSEL TO PURCHASER]
Wilmington, Delaware

_____________________________








 
 
Case 18-10248-MFW
Doc 632-1
Filed 04/18/18
Page 52 of 60
 
Exhibit 2(b)(xiii)
Form of Lease/Contract Assumption Notice


Schedule A

Description
Counterparty Name and Address
Assignee Name
and Address
Cure Amount
Effective Date
of Assignment
         



 
Case 18-10248-MFW
Doc 632-1
Filed 04/18/18
Page 53 of 60
 
Exhibit 3.1(c)
Wind Down Payment Budget

   
Budget
 
Expense Vendors
 
$
16.2
 
Payroll
   
35.5
 
Severance
   
3.4
 
Retention
   
-
 
IBNR
   
4.0
 
Sales Tax
   
7.9
1 
Interest
   
-
 
Professional Fees
   
15.8
2 
Contingency
   
1.0
 
Stub Rent & Free Rent
   
8.0
 
503(b)(9)
   
2.0
 
Other
   
-
 
Total
 
$
93.8
 
Plus: Severance and Retention in Agent’s
       
Expenses
   
5.7
 
Total After Severance and Retention in Agent’s Expenses
 
$
99.5
 







1 Reduced to account for the fact that $6 million of sales taxes are already included in the DIP Obligations per email from J. Guglielmo dated April 17, 2018.
2 For the avoidance of doubt, the Professional Fees shall be paid, without duplication, either as part of the payoff of the DIP Obligations or as part of the Wind Down Payment.



 
Case 18-10248-MFW
Doc 632-1
Filed 04/18/18
Page 54 of 60
 
The Bon-Ton Stores, Inc.
Exhibit 4.1(c) - Occupancy - Per Diem
Full Company Liquidation Store Closing List
Excludes Distribution Centers
 
TOTAL - PER DIEM
 
 
Store #          Store Name
 
 
Base Rent
Common Area
Maintenance / LL Property Insurance
 
 
Real Estate
Taxes
 
 
Insurance
Building Repair & Maint.
 
 
Occupancy
Other
Security
 
 
Communications
 
 
Utilities
 
 
Supplies
 
 
Equip.
Leases
 
 
Eqiup.
Maint
Other
Taxes
 
 
Total
 
2 Hanover
 
1,162
 
89
 
362
 
27
 
117
 
20
 
11
 
54
 
194
 
42
 
5
 
4
 
-
 
2,087
4 Lewistown
-
-
62
23
78
21
11
41
133
42
5
4
-
419
5 Martinsburg
458
75
-
35
102
22
18
40
172
52
6
4
131
1,115
6 Chambersburg
581
92
95
22
80
18
10
48
194
43
6
4
-
1,193
7 Park City Furn
941
142
138
12
62
545
14
42
95
31
2
4
-
2,027
8 Park City
749
123
1,597
128
385
34
28
52
2,023
275
15
4
-
5,412
12 Cumberland
767
65
142
31
114
23
20
39
228
74
26
4
36
1,568
14 Galleria
2,918
146
171
69
279
108
19
54
390
105
12
4
35
4,308
15 Uniontown
893
111
170
35
121
46
11
44
384
87
10
4
29
1,944
17 Indiana
499
-
84
15
100
19
6
42
155
56
8
4
-
986
18 Warren
305
-
-
21
111
21
10
42
158
37
6
4
-
714
19 Wilton
722
120
227
27
129
39
28
38
409
74
12
4
-
1,829
21 Oil City
693
38
23
24
113
20
7
50
142
41
6
4
-
1,162
22 Brick
2,118
651
507
33
159
59
34
42
254
67
8
4
-
3,936
25 Binghamton
776
-
1,222
32
126
21
14
41
247
59
7
4
-
2,550
27 Williamsport
606
101
151
24
95
18
8
44
196
41
5
4
-
1,294
28 Bloomsburg
455
-
-
19
86
18
26
39
152
44
5
4
-
849
29 Queensgate
1,877
310
450
39
165
166
30
42
320
79
11
4
19
3,513
31 Camp Hill
-
-
415
62
461
206
15
52
513
130
10
6
2
1,872
32 Colonial Park
384
388
295
54
354
110
13
46
443
78
7
4
-
2,176
35 Reading
902
162
985
91
302
205
15
44
510
131
11
4
52
3,415
36 Greensburg
-
126
401
42
262
20
20
50
320
79
9
4
11
1,344
37 Washington
319
-
-
21
119
16
17
43
219
50
6
4
20
832
38 Midway
700
212
225
30
119
27
11
40
194
60
6
4
-
1,629
39 Wilkes-Barre
747
79
505
55
295
133
13
43
521
106
9
4
39
2,549
43 Newburgh
939
52
359
27
102
23
35
39
291
63
6
4
-
1,939
44 Ithaca
1,085
147
301
320
138
24
15
53
244
57
6
4
-
2,393
46 Jamestown
793
67
19
32
95
22
19
43
220
74
14
4
-
1,401
48 Westfield
1,832
534
801
57
128
48
16
44
397
94
13
4
5
3,973
62 Eastern Hills
1,320
54
-
53
336
269
26
38
319
99
10
4
-
2,528
63 Sheridan
715
104
78
47
197
235
38
43
300
85
7
4
-
1,851
64 Southgate
1,066
223
242