Saks Global Enterprises LLC, et al. - Chapter 11 APA Summary

Store Closing Sales / Consulting Agreement Summary

Parties Involved

• Saks Global Enterprises LLC, as Merchant
• GA Retail Solutions, LLC, as Consultant
• The Consultant is not an "insider" of the Global Debtors as defined in section 101(31) of the Bankruptcy Code. No common identity of directors or controlling shareholders exists between the Consultant and the Global Debtors.

Assets Being Sold

• Merchandise and FF&E located at nine Closing Stores identified in the Consulting Agreement, including locations in New Orleans, Birmingham, Tulsa, Phoenix, Bala Cynwyd, Richmond, Columbus, East Rutherford, and Boston.
• Merchandise means all first quality goods, saleable in the ordinary course, located in the Stores on the Sale Commencement Date or delivered thereafter pursuant to the terms of the Consulting Agreement.
  • Merchandise excludes: (i) goods belonging to sublessees, licensees or concessionaires; (ii) FF&E and improvements to real property; (iii) damaged or defective goods; (iv) goods held on memo, consignment or as bailee (except for consignment goods from B.H. Multi Com Corp., B.H. Multi Color Corp. and their affiliates if Supervisors are provided); and (v) gift cards (third party and Merchant branded).
• FF&E means the furniture, furnishings, trade fixtures, machinery, equipment, office supplies, supplies, conveyor systems, racking, rolling stock and other tangible personal property, including raw materials, owned by Merchant and located in the Stores.
• Store Closure Assets shall not include any consignment, concession, licensed, bailment, memo or other non-Debtor owned goods (Excluded Sale Assets), unless (i) the applicable owner has provided express advance written consent, or (ii) such owner is paid in full in cash or pursuant to an agreed-upon escrow or other payment mechanics prior to or contemporaneously with any sale.

Consultant Fees and Expenses

• Base Fee: 2.0% of the Gross Proceeds of Merchandise.
• FF&E Fee: 15.0% of all Gross Proceeds of FF&E sales.
• Gross Proceeds means the sum of all gross proceeds (including redemption of gift cards and wholesale sales) during the Sale Term, after application of all discounts and net only of sales taxes.
• Merchant shall be responsible for all reasonable costs and expenses incurred by Consultant in connection with the sale of FF&E in accordance with the FF&E Expense Budget of $215,000.
• Merchant shall be responsible for all costs and expenses of the Sale, including Store-level operating expenses and outside legal expenses.
• An Expense Budget has been established for expenses in connection with the Sale, including supervision costs, advertising costs, and Consultant's corporate travel and legal expenses, not to exceed $50,000 in the aggregate absent Merchant's prior written consent.
  • The Preapproval Threshold shall need to be increased if Merchant requests that Consultant provides Supervisors.
  • Costs incurred to respond to litigation or other legal process shall not be subject to the Preapproval Threshold.
• Consultant shall submit invoices to Merchant on a weekly basis setting forth (i) the Base Fee and/or FF&E Fee earned during the preceding week, and (ii) any expenses incurred by Consultant during the preceding week.
• No later than two business days after submission, the Base Fee, FF&E Fee, and any expenses shall be paid in full by Merchant via wire transfer to Consultant.
• Consultant's fees and expenses shall be paid from the gross proceeds of the Store Closing Sales.
• A final reconciliation and settlement of all amounts payable to Consultant (including Expense Budget items and fees) shall be completed no later than 45 days following the Sale Termination Date for the last Store.

Consultant Services

• Consultant shall, in collaboration with and upon request of the Merchant:
  • Provide qualified Supervisors engaged by Consultant to oversee the Sale and management of the Stores in an effort to maximize revenue and sell all of the Merchandise prior to the end of the Sale (only if expressly requested by Merchant).
  • Determine appropriate point-of-sale and external advertising, subject to the reasonable advance approval of Merchant.
  • Determine appropriate discounts of Merchandise, staffing levels, and appropriate bonus and incentive programs for the Stores' employees, each subject to the reasonable advance approval of Merchant.
  • Oversee display of Merchandise for the Stores.
  • Evaluate sales of Merchandise by category, provide sales reporting (but only if, and to the extent that, Merchant provides Consultant access to the point-of-sale data in the ordinary course), and monitor expenses.
  • Assist Merchant in obtaining any required permits and governmental consents required to conduct the Sale.
  • Price, market and sell the FF&E on behalf of Merchant, provided that the Consultant shall not sell or dispose of any FF&E bearing Merchant's trade names, logos, or other intellectual property without Merchant's consent.
  • Provide such other related services deemed necessary or appropriate by Merchant and Consultant, including arranging wholesale sales of the Merchandise and sharing relevant information regarding the Merchandise with potential buyers.
• Consultant does not warrant or guarantee any particular results or outcomes in connection with the Sales.

Store Closing Sales Authorization

• The Global Debtors and the Consultant are authorized to conduct the Store Closing Sales in accordance with the Final Order, the Store Closing Procedures, and the Consulting Agreement.
• The Store Closing Sales may be advertised as "store closing," "sale on everything," "everything must go," or similar-themed sales through the posting of signs (including exterior banners at non-enclosed mall closing locations, and at enclosed mall closing locations to the extent the applicable entrance does not require entry into the enclosed mall common area), and use of sign-walkers, A-frames, and street signage.
• The Committee shall be provided with reasonable prior notice of any messaging, branding, or advertising identifying specific brands by name.
• Neither the Global Debtors nor the Consultant shall be required to obtain the approval of any third party, including any Governmental Unit or landlord, to conduct the Store Closing Sales.
• All newspapers, advertising media, and landlords are directed to accept the Final Order as binding authority to authorize the Global Debtors and the Consultant to conduct the Store Closing Sales and the sale of Merchandise and FF&E.
• The Global Debtors are authorized to discontinue operations at the Closing Stores at the conclusion of the applicable Store Closing Sales.

Sale Free and Clear

• The Consultant, on behalf of the Global Debtors, is authorized to sell the Store Closure Assets, and all Sales of Store Closure Assets shall be free and clear of any and all liens, claims, encumbrances, and other interests.
  • Any such liens, claims, encumbrances, and other interests shall attach to the proceeds of the Sale of the Store Closure Assets with the same validity, amount, priority, and extent that any such liens, claims, and encumbrances had with respect to the Store Closure Assets, subject to any claims and defenses that the Global Debtors may possess and the Consultant's fees and expenses.
• Except with respect to the sale of any Excluded Sale Assets, all sales of Store Closure Assets shall be "as is" and final.
• All state and federal laws relating to implied warranties for latent defects shall be complied with and are not superseded by the sale of said goods or the use of the terms "as is" or "final sales."
• The Consultant shall accept return of any goods that contain a latent defect which the lay consumer could not reasonably determine was defective by visual inspection prior to purchase for a full refund, provided that the consumer must return the merchandise within the time period prescribed by the Debtors' return policy that was in effect when the merchandise was purchased, the consumer must provide a receipt, and the asserted defect must in fact be a "latent" defect. Such returned goods shall not be resold by the Debtors.

Key Dates

• Sale Commencement Date: On or about February 20, 2026
• Sale Termination Date: On or about April 30, 2026 (but in any event, no later than May 31, 2026 by agreement of the Parties)
• The Parties may mutually agree in writing to extend or terminate the Sale at any Store(s) prior to the Sale Termination Date.
• If the Sale in one or more Stores is delayed or interrupted due to Health Regulations, the Sale Termination Date may be extended by the time period for which the Sale was delayed or interrupted by agreement of the Parties.

Store Closing Procedures

• The Store Closing Sales will be conducted during normal business hours or such hours as otherwise permitted by the applicable unexpired lease.
• The Store Closing Sales will be conducted in accordance with applicable state and local "Blue Laws," and no Store Closing Sales will be conducted on Sunday unless the Global Debtors have been operating such stores on Sundays.
• On "shopping center" property, neither the Global Debtors nor the Consultant shall distribute handbills, leaflets, or other written materials to customers outside of any Closing Stores' premises, unless permitted by the applicable lease or if distribution is customary in the "shopping center."
• On "shopping center" property, neither the Global Debtors nor the Consultant shall use any flashing lights or amplified sound to advertise the Store Closing Sales or solicit customers, except as permitted under the applicable lease or agreed in writing by the landlord.
• The Global Debtors and the Consultant shall be permitted to utilize sign walkers, displays, hanging signs, and interior banners in connection with the Store Closing Sales, provided that such sign walkers, displays, hanging signs, and interior banners shall be professionally produced and hung in a professional manner and such sign walkers shall be used in a safe and professional manner.
• Neither the Global Debtors nor the Consultant shall make any alterations to the storefront, roof, or exterior walls of any Closing Stores or shopping centers, or to interior or exterior store lighting, except as authorized by the applicable lease. The hanging of in-store signage shall not constitute an alteration to a Closing Store.
• Affected landlords will have the ability to negotiate with the Global Debtors, or at the Global Debtors' direction, with the Consultant, any particular modifications to the Store Closing Procedures.
• The Global Debtors and the landlord of any Closing Store are authorized to enter into Side Letters modifying the Store Closing Procedures without further order of the Court, and such Side Letters shall be binding as among the Global Debtors, the Consultant, and any such landlords.
• In the event of any conflict between the Store Closing Procedures, the Final Order, and any Side Letter, the terms of such Side Letter shall control.
• Conspicuous signs will be posted in each of the affected stores to the effect that all sales are "final."
• The Global Debtors will keep store premises and surrounding areas clear and orderly, consistent with past practices.

Customer Programs

• Returns: The Closing Stores will accept returns of merchandise sold in the ordinary course of business prior to the initiation of the Store Closing Sales, so long as the return is otherwise in compliance with the Debtors' return policies in effect as of the date such item was purchased and the customer is not repurchasing the same item to take advantage of the sale price. Items sold during the Store Closing Sales will be sold on an "as final" basis and returns will not be accepted for such items at either the Closing Stores or Go-Forward Stores.
• Gift Cards: For the first 15 days following the initiation of the Store Closing Sales, the Closing Stores will accept validly issued gift cards. After the expiration of the first 15 days, the Closing Stores will no longer accept gift cards. Go-Forward Stores, inclusive of saksfifthavenue.com and neimanmarcus.com, will continue to accept gift cards in the ordinary course of business. Gift cards are not redeemable for cash at any time.
• Promotional Gift Cards: The Global Debtors will continue to accept promotional gift cards at the Go-Forward Stores, however, such promotional gift cards may not be used to purchase goods from the Store Closing Sales. Upon issuance of any promotional gift card from the date hereof through the end of the Store Closing Sales, a printed disclosure will be issued to customers stating that such promotional gift cards may not be used in connection with the Store Closing Sales.
• Credit Cards: Upon commencement of the Store Closing Sales, the Closing Stores will no longer accept applications for Saks and Neiman Marcus branded credit cards. Go-Forward Stores will continue to accept credit card applications in the ordinary course of business (Saks Fifth Avenue branded cards at Saks Fifth Avenue Go-Forward Stores and saksfifthavenue.com; Neiman Marcus branded cards at Neiman Marcus Go-Forward Stores and neimanmarcus.com). The Global Debtors shall cease accepting in-store payments on Saks and Neiman Marcus branded credit card balances at the Closing Stores. The Closing Stores, Go-Forward Stores, and full-chain ecommerce platforms will continue to accept customer payments using credit cards for purchases of Merchandise issued under the Debtors' existing credit card programs.
• Customer Rewards Programs: Upon commencement of the Store Closing Sales, purchases made at the Closing Stores will continue to be eligible to earn rewards under the Rewards Programs. For the first 15 days following the initiation of the Store Closing Sales, the Closing Stores will continue to accept redemptions of rewards points, after which the Closing Stores will no longer accept redemptions of points earned under the Rewards Programs. Go-Forward Stores will continue to earn and accept redemptions under the Rewards Programs.
• Employee Discount: During the Store Closing Sales, both the Closing Stores and the Go-Forward Stores will continue to honor employee discounts in the ordinary course of business, consistent with existing policies in place prior to the initiation of the Store Closing Sales.
• The Debtors and the Consultant shall post conspicuous signs on the website and in the Closing Stores, including at their cash registers, explaining the above "consumer provisions" to customers, including the return policies and gift card policy.
• During the Sale Term, Merchant will allow customers to elect to take advantage of either (i) the discounts afforded to customers in connection with Merchant's loyalty/membership program benefits and/or Merchant's coupons that are valid at the time of sale or (ii) the then-prevailing discounts being offered. Merchant will not allow customers to apply both forms of discounts at the time of purchase on a cumulative basis.

Severance and Employees

• The Global Debtors are authorized to implement and make payments under the Store Closing Severance Program.
• No Severance Payments shall be paid to any executives, directors, or "insiders," as that term is defined in the Bankruptcy Code, absent further Court order.
• The Committee's right to challenge the Global Debtors' designation of any employee as a non-insider is expressly preserved. To the extent the Committee later determines that an insider has received, or is contemplated to receive, any payment under the Store Closing Severance Program, the Committee's right to object or otherwise move to disallow, prohibit, or clawback such payment is expressly preserved.
• During the Sale Term, Merchant shall be the employer of the Store's employees, other than the Supervisors, and shall pay all taxes, costs, expenses, accounts payable and other liabilities relating to the Stores and the Stores' employees.
• Merchant shall provide throughout the Sale Term central administrative services necessary for the Sale, including internal payroll processing, MIS services, cash and inventory reconciliation, data processing and reporting, email preparation and distribution, information technology updates, functionality, maintenance and accounting, all at no cost to Consultant.
• Consultant shall have no liability to any claim by or on behalf of Merchant's employees for wages, benefits, severance pay, termination pay, vacation pay, pay in lieu of notice of termination or any other liability arising from Merchant's employment, hiring or retention of its employees, and such employees shall not be considered employees of Consultant.
• The Supervisors shall not be considered employees of Merchant.
• To the extent the Global Debtors are subject to any state "fast pay" laws in connection with the Store Closing Sales, the Global Debtors shall be presumed to be in compliance with such laws to the extent, in applicable states, such payroll payments are made by the later of: (a) the Global Debtors' next regularly scheduled payroll; and (b) seven calendar days following the termination date of the relevant employee.

Indemnification

• Notwithstanding anything to the contrary in the Consulting Agreement, the Global Debtors and their estates shall not indemnify the Consultant for any damages arising out of the Consultant's fraud, willful misconduct, gross negligence, bad faith, self-dealing, breach of fiduciary duty (to the extent any fiduciary duty exists), violation of the Final Order, or material breach of the Consulting Agreement by the Consultant.
• If, before the earlier of (i) the entry of an order confirming a chapter 11 plan in these Chapter 11 Cases (that order having become a final order no longer subject to appeal), or (ii) the entry of an order closing these Chapter 11 Cases, the Consultant believes that it is entitled to the payment of any amounts by the Global Debtors on account of the Debtors' indemnification, contribution, and/or reimbursement obligations under the Consulting Agreement (as modified by the Final Order), including the advancement of defense costs, the Consultant must file an application therefor in this Court, and the Global Debtors may not pay any such amounts to the Consultant before the entry of an order by this Court approving the payment.
• All parties in interest (including the Committee) shall retain the right to object to any demand by the Consultant for indemnification, contribution, or reimbursement.
• Merchant hereby indemnifies, defends and holds Consultant and its affiliates and their respective members, managers, partners, officers, directors, employees, attorneys, advisors, principals, consultants and Supervisors harmless from and against all liabilities, claims, demands, damages, costs and expenses (including reasonable attorneys' fees) arising from or related to:
  • The acts or omissions of Merchant or Merchant Indemnified Parties.
  • Any liability or other claims, including product liability claims, asserted by customers, any Store employees or any other person (excluding the Consultant Indemnified Parties) against Consultant or any Consultant Indemnified Party, except claims arising from Consultant's own gross negligence or willful misconduct.
  • Any harassment, discrimination or violation of any laws or regulations or any other unlawful, tortious or otherwise actionable treatment of any Consultant Indemnified Parties or Merchant's customers by Merchant or any Merchant Indemnified Parties.
  • Merchant's failure to pay over to the appropriate taxing authority any taxes required to be paid by Merchant during the Sale Term in accordance with applicable law.
  • Any claims of Merchant's employees for wages, benefits, severance pay, termination pay, vacation pay, pay in lieu of notice of termination or any other liability arising from Merchant's employment, hiring or retention of its employees.
  • Any liability or other claims arising out of liens, claims, interests and encumbrances asserted against the Merchandise or FF&E by any third parties.
  • Any claims by any Consultant Indemnified Parties relating to exposure to hazardous materials in connection with the services rendered under this Agreement.
• Merchant hereby agrees to promptly reimburse the Consultant Indemnified Parties for any legal fees or other expenses reasonably incurred by the Consultant Indemnified Parties in connection with such claims as they are incurred.
• Consultant hereby indemnifies, defends and holds Merchant and its affiliates and their respective members, managers, partners, officers, directors, employees, attorneys, advisors, principals and consultants harmless from and against all Losses arising from or related to:
  • The willful misconduct or grossly negligent acts or omissions of Consultant.
  • Any harassment, discrimination or violation of any laws or regulations or any other unlawful, tortious or otherwise actionable treatment of the Merchant Indemnified Parties or Merchant's customers by Consultant or any of the Consultant Indemnified Parties.
  • Any claims made by any party engaged by Consultant as an employee, agent, representative or independent contractor arising out of Consultant's or any of the Consultant Indemnified Parties' acts or omissions.
• The Consultant shall not be liable for sales taxes except as otherwise expressly provided in the Consulting Agreement.
• The payment of any and all sales taxes (except as expressly provided in the Consulting Agreement) is the responsibility of the Global Debtors.
• The Consultant shall not be liable for any claims against the Global Debtors, and the Global Debtors shall not be liable for any claims against the Consultant, in each case, other than as expressly provided for in the Consulting Agreement, as modified by the Final Order.

Inventory and Merchandise

• The Global Debtors are authorized to transfer inventory to the Closing Stores only from Saks Fifth Avenue and Neiman Marcus inventory held at distribution centers or other Closing Stores.
• The Global Debtors are authorized to enter into postpetition agreements for the receipt of augment merchandise on consignment (Augment Merchandise) to support the Store Closing Sales.
• Any Augment Agreement is hereby approved without further order of this Court. The Global Debtors shall provide copies of any Augment Agreements to counsel for the Committee and the Ad Hoc Group of Secured Noteholders and DIP Lenders, on a professional eyes' only basis promptly following execution.
• Upon written notice by an Augment Provider to the Global Debtors of an event of default under an Augment Agreement, the Global Debtors shall immediately cease further sales of Augment Merchandise unless otherwise agreed to in writing by the applicable Augment Provider.
• All sales of Merchandise and FF&E shall be made on behalf of, and solely in the name of, Merchant.
• Consultant does not have, nor shall it have, any right, title or interest in Merchandise or FF&E.
• All sales of Merchandise or FF&E shall be by cash, gift card, gift certificate, merchandise credit, debit card or credit card and, at Merchant's discretion, by check or otherwise in accordance with Merchant's policies, and shall be "final" with no returns accepted or allowed, unless otherwise directed by Merchant.

Privacy and Confidential Information

• Neither the Store Closing Procedures, Consulting Agreement, nor the Final Order authorize the transfer or sale of personal identifying information (PII) of any customers or employees, or any Vendor Confidential Information, unless such sale or transfer is permitted by the Global Debtors' privacy policy and Applicable Privacy Laws.
• The foregoing shall not limit the Consultant's use of the Global Debtors' customer lists and mailing lists in accordance with the Consulting Agreement solely for purposes of advertising and promoting the Store Closing Sales.
• To the extent that the Global Debtors propose to sell or abandon FF&E which may contain PII about the Global Debtors' employees and/or customers or Vendor Confidential Information, the Global Debtors shall remove the PII or Vendor Confidential Information from such items of FF&E before such sale or abandonment.
• Vendor Confidential Information means all non-public, proprietary or confidential information of or relating to any vendor or service provider of the Global Debtors, whether maintained in digital or physical form, including without limitation:
  • Consignment agreements and related economics.
  • Wholesale pricing, margins, and markdown structures.
  • License agreements and royalty terms.
  • Sell-through data by SKU or brand.
  • Inventory positions by vendor.
  • Vendor contract lists and sourcing information.
  • Advertising, marketing, and promotional allocations attributable to specific brands.
  • Any other non-public information provided by vendors in the ordinary course of business.
  • Any customer data owned or co-owned by third parties, including concessionaires.
• Nothing in the Final Order or the Consulting Agreement shall (a) release, modify, or limit any confidentiality or non-disclosure obligations owed to vendors under existing agreements, or (b) impair or waive any rights or remedies of vendors with respect to Vendor Confidential Information.

Reporting Requirements

• Weekly Reporting: The Global Debtors shall provide the Committee's professional advisors (on a professional eyes-only basis) with no less than substantially the same weekly reporting with respect to the Store Closing Sales as is provided to the Ad Hoc Group of Secured Noteholders and DIP Lenders.
• Final Reporting: Within twenty days following the conclusion of the Store Closing Sales, the Global Debtors shall (on a confidential basis) provide to the U.S. Trustee, the Committee, and the Ad Hoc Group of Secured Noteholders and DIP Lenders:
  • A summary report of the Store Closing process that will include (i) the list of stores closed and (ii) gross revenue from the Store Closure Assets sold.
  • A report showing payment of the Consultant's fees, setting forth detail and information regarding the calculation of such fees and expenses, if any, reimbursed to the Consultant.
  • The foregoing shall not require the Debtors, their professionals, or the Consultant to prepare or undertake to prepare any additional or new reports not otherwise being prepared.

Dispute Resolution Procedures with Governmental Units

• Nothing in the Final Order, the Consulting Agreement, or the Store Closing Procedures releases, nullifies, or enjoins the enforcement of any liability to a governmental unit under environmental laws or regulations.
• The store closings and the Store Closing Sales shall not be exempt from laws of general applicability, including public health and safety, criminal, tax, labor, employment, environmental, antitrust, fair competition, traffic and consumer protection laws.
• Nothing in the Final Order shall be deemed to bar any Governmental Unit from enforcing General Laws in the applicable non-bankruptcy forum, subject to the Global Debtors' rights to assert in that forum or before this Court that any such laws are not in fact General Laws or that such enforcement is impermissible under the Bankruptcy Code or the Final Order.
• Provided that the Store Closing Sales are conducted in accordance with the terms of the Final Order, the Consulting Agreement, and the Store Closing Procedures, and in light of the provisions in the laws of many Governmental Units that exempt court-ordered sales from their provisions, to the extent that the sale of Store Closure Assets is subject to any Restrictive Laws, the Global Debtors and the Consultant will be presumed to be in compliance with any Restrictive Laws and are authorized to conduct the Store Closing Sales in accordance with the terms of the Final Order and the Store Closing Procedures without the necessity of further showing compliance with any Restrictive Sale Laws.
• Within three business days after entry of the Final Order, the Global Debtors will serve by first-class mail copies of the Final Order, the Consulting Agreement, and the Store Closing Procedures on the Dispute Notice Parties.
• Any time within ten days following entry of the Final Order, any Governmental Unit may assert that a Reserved Dispute exists by serving written notice of such Reserved Dispute (the Dispute Notice), explaining the nature of the dispute to the parties listed in the Final Order.
• If the Global Debtors, the Consultant and the Governmental Unit are unable to resolve the Reserved Dispute within fifteen days after service of the Dispute Notice, the Governmental Unit may file a motion with the Court requesting that the Court resolve the Reserved Dispute (a Dispute Resolution Motion).
• Filing a Dispute Resolution Motion shall not be deemed to affect the finality of the Final Order or to limit or interfere with the Global Debtors' or the Consultant's ability to conduct or to continue to conduct the Store Closing Sales pursuant to the Final Order, absent further order of the Court.
• Each and every federal, state, or local agency or Governmental Unit with regulatory authority over the Store Closing Sales and all newspapers and other advertising media in which the Store Closing Sales are advertised shall consider the Final Order as binding authority that no further approval, license, or permit of any Governmental Unit shall be required, nor shall the Global Debtors or the Consultant be required to post any bond, to conduct the Store Closing Sales.
• If the landlord of any Closing Store contends that the Global Debtors or the Consultant is in breach of or default under the Store Closing Procedures, such landlord shall provide at least five days' written notice, served by email or overnight delivery.
• If the parties are unable to resolve the dispute, either the landlord or the Global Debtors shall have the right to schedule a hearing before the Court on no less than five business days' written notice to the other party.

Additional Store Closings

• To the extent that the Global Debtors determine in their business judgment that conducting additional Store Closing Sales is warranted, which shall only be after consultation with the Committee's professional advisors, such Store Closing Sales shall be conducted pursuant to the terms of the Final Order, the Consulting Agreement, and the Store Closing Procedures.
• Seven days prior to commencing Store Closing Sales at any Additional Closing Stores, the Global Debtors (a) first consult with the Committee's advisors, and (b) subsequently shall file a Supplemental Store Closure Notice with this Court identifying:
  • The Additional Closing Stores.
  • The timeframe expected for such Store Closing Sales to occur.
  • Any additional Store Closing Severance Program amounts to be paid with respect to such Store Closing Sales.
  • Any other changes to the terms of the Final Order, the Consulting Agreement, or the Store Closing Procedures (if any) the Global Debtors intend.
• Each Supplemental Store Closure Notice shall be served (by email, if known) within one business day after the filing of such Supplemental Store Closure Notice upon specified parties.
• The Committee, the Additional Closing Store Landlords, and any other interested parties shall have seven days after the filing of the applicable Supplemental Store Closure Notice to object to the application of the Final Order.
• Unless the Court orders otherwise, after the expiration of this objection period, the Global Debtors are authorized to proceed with conducting the Store Closing Sales at the Additional Closing Stores in accordance with the Final Order, the Consulting Agreement, the Store Closing Procedures, and as otherwise indicated in the Supplemental Store Closure Notice.

Post-Closing Arrangements

• At the conclusion of the Sale at each Closing Store, the Consultant shall vacate such Store; provided that Consultant may abandon any FF&E not sold in the Sale at such Store, without cost or liability of any kind to the Consultant.
• The Global Debtors will have the option to remove the FF&E prior to the Termination Date.
• The rights of any parties in interest, including landlords, to assert claims for the disposition of such abandoned FF&E or other abandoned Store Closing Assets are reserved, as are all parties' rights (including the Committee's) to object to such claims.
• The Global Debtors and/or the Consultant are authorized and empowered to transfer Store Closure Assets that are property of the Global Debtors among the Closing Stores.
• The Consultant is hereby authorized to sell the Global Debtors' FF&E and abandon the same, in each case, as provided for and in accordance with the terms of the Consulting Agreement.
• At the conclusion of the Sale for each Store, Consultant shall surrender the premises for such Store to Merchant in broom clean condition with any unsold FF&E to be left in place at the Stores.
• Notwithstanding anything to the contrary in the Final Order or the Consulting Agreement, the Global Debtors shall not sell or abandon any property that the Global Debtors know is not owned by a Debtor without the owner's advance written consent (which may be via email), and the Global Debtors will work in good faith with the owner of any such property to arrange for the return of the property to the owner; provided that the Global Debtors and the Consultant may abandon property owned by the applicable landlord at the applicable Closing Store in accordance with the terms of the Final Order; provided further, that the Global Debtors shall not abandon any property against which the Global Debtors know a third party has asserted a lien without providing notice to such party.
• The Global Debtors shall work in good faith and in a commercially reasonable manner with any owners of Excluded Sale Assets to facilitate the identification, retrieval, temporary storage, or other agreed-upon arrangements with respect to any such goods.

Insurance

• Merchant shall maintain, throughout the Sale Term, liability insurance policies (including products liability, comprehensive commercial general liability insurance and auto liability insurance), with at least the coverage limits currently existing thereunder, covering injuries to persons and property in or in connection with the Stores and/or the Merchandise, and shall cause Consultant to be named an additional insured with respect to all such policies.
• Merchant shall maintain throughout the Sale Term, in such amounts as it currently has in effect, workers compensation insurance in compliance with all applicable statutory requirements.
• Required coverages shall be maintained with insurers with an AM Best rating of at least A-VII.
• Consultant shall maintain, throughout the Sale Term, comprehensive commercial general liability insurance in an amount of at least one million dollars ($1,000,000) per occurrence and at least five million dollars ($5,000,000) in the aggregate covering injuries to persons and property in or in connection with Consultant's provision of services at the Stores.
• Nothing in the Motion, the Interim Order, and/or the Final Order alters or modifies the terms and conditions of any insurance policies or related agreements issued by ACE American Insurance Company and/or any of its U.S.-based affiliates.

Amendments to Consulting Agreement

• The Global Debtors are authorized to immaterially amend the Consulting Agreement from time to time in accordance with its terms, without further order of this Court, subject to the Global Debtors providing the proposed amended Consulting Agreement by email to counsel to (i) the U.S. Trustee, (ii) the Committee, and (iii) the Ad Hoc Group of Secured Noteholders and DIP Lenders (collectively, the Amendment Notice Parties).
• If the Global Debtors and the Consultant desire to materially amend the Consulting Agreement as to the Consultant's fees and expenses, the Global Debtors shall provide the proposed amended Consulting Agreement by email to counsel to the Amendment Notice Parties, and each of the Amendment Notice Parties shall have one business day to object to such proposed amendment to the Consulting Agreement (the Amendment Objection Period).
• If no Amendment Notice Party objects to such proposed amendment received during the Amendment Objection Period, such proposed amendment shall become immediately effective without further action of the Court.
• If any Amendment Notice Party objects to such proposed amendment during the Amendment Objection Period, and such objection (a Modification Objection) cannot be resolved consensually, the Global Debtors and the Consultant shall not execute such modification of the Consulting Agreement absent a further order of the Court approving the modification.
• Any Modification Objection that cannot be consensually resolved may, subject to the Court's availability, be scheduled for a hearing within three business days of the Global Debtors' request for such hearing.