Exhibit 10.2
INTERIM SERVICING AGREEMENT
BY AND AMONG
THE BON-TON STORES, INC.
AND
HSBC BANK NEVADA, N.A.
DATED AS OF JUNE 20, 2005
INTERIM SERVICING AGREEMENT
This Interim Servicing Agreement (this "Agreement") is made and entered into as
of June 20, 2005, by and among HSBC BANK NEVADA, N.A., a national banking
association ("Bank"), and THE BON-TON STORES, INC. ("Servicer").
Servicer has entered into a Purchase and Sale Agreement with Bank dated June 20,
2005 (the "Purchase Agreement"), pursuant to which Servicer has agreed to sell
and Bank has agreed to purchase the consumer private label credit card accounts
and related receivables.
ARTICLE I -- DEFINITIONS
1.01 Certain Definitions. Capitalized terms contained in this Agreement that are
not otherwise defined in this Agreement shall have the respective meanings
assigned to such terms in the Purchase Agreement.
1.02 Construction. Unless the context otherwise clearly indicates, words used in
the singular include the plural and words used in the plural include the
singular. The Recitals and the headings of Articles and Sections of this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not affect the meaning or interpretation of this
Agreement.
ARTICLE II -- SERVICES AND PROCEDURES
2.01 Services after Closing Date.
(a) Subject to the terms of this Agreement the term of this Agreement shall
commence on the Closing Date and terminate on November 1, 2005; provided,
however, that the term of this Agreement may be pursuant to Section 2.06,
terminated by Bank upon no less than fifteen days prior written notice to
Servicer if Bank completes its conversion of the Accounts by a date prior
to the termination date otherwise then in effect (the last day of the term
of this Agreement is hereinafter referred to as the "Conversion Date").
During the term of this Agreement, Servicer shall provide, except as
otherwise noted herein, directly, or indirectly through its Affiliates or
third-party service providers, all of the services that were rendered
prior to the Closing by Servicer in connection with the authorization,
servicing, processing, collection and administration of the Account
Portfolio Assets (the "Services"), including, without limitation, the
Services specified in Exhibits 2.01 (a).
(b) Servicing Obligations after Closing Date. From and after the Closing Date,
Servicer shall, in addition to the Services specified in Exhibit 2.01(a),
also perform Services specified in Exhibit 2.01 (b).
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(c) Servicing Obligations after Conversion Date. From and after the Conversion
Date, Servicer shall have no obligations under this Agreement except as
set forth in Sections 3.04 and 6.01 and Article VII.
2.02 Servicing Standards. Servicer or its Affiliates shall perform the Services
in all material respects in accordance with the policies and procedures of
Servicer relating to the Account Portfolio Assets ("Servicer's Policies and
Procedures") and in substantially the same manner Servicer performed such
services prior to the execution date hereof, with the exception of the
additional Services set forth in Exhibit 2.01(b)(1), which Servicer shall
perform in a commercially reasonable manner; provided, however, that Servicer
shall answer telephone calls in accordance with the standards set forth in
Exhibit 2.01(b)(2) and further provided that notwithstanding anything to the
contrary in this Agreement, Servicer shall have no liability for performing the
Services in conformity with or pursuant to any request or direction of Bank, as
long as such performance is done in a commercially reasonable manner, and
Servicer may rely and shall be protected in acting or refraining from acting
upon any statement, instrument, report, notice, request or document believed by
it to be genuine and to have been signed or presented by the proper parties.
2.03 Reports by Servicer. Until the Conversion Date, Servicer shall prepare or
cause to be prepared and transmit to Bank the following reports:
(a) a Daily Settlement Sheet, which Servicer shall deliver to Bank by 5:00
p.m., C.T., on the Business Day following the day covered by the report
(in the form of Exhibit 2.03(i)); and
(b) the reports listed on Exhibit 2.03(ii), which Servicer shall deliver to
Bank within the time frames specified in Exhibit 2.03(ii). Servicer shall
provide copies of the Masterfile in tape form to Bank following the final
billing cycle date in each month from the Closing Date to the Conversion
Date on or before the fifth Business Day of the following calendar month.
Servicer shall prepare or cause to be prepared and transmit to Bank such
additional reports as Bank shall reasonably request and as are currently
available from Servicer's accounts receivable system.
2.04 Servicer's Policies and Procedures and Manuals. Until the Conversion Date,
Servicer shall make available for Bank's review Servicer's existing manuals in
which the Servicer's Policies and Procedures are reflected.
2.05 Access to System and Premises.
(a) Subject to reasonable security and confidentiality procedures and the
approval of the appropriate service provider, until the Conversion Date,
and upon reasonable prior notice, Servicer will provide Bank, at Bank's
sole expense, with:
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(i) reasonable access during normal business hours to the appropriate
operating location of Servicer;
(ii) reasonable access to employees of Servicer providing Services; and
(iii) reasonable access to all of Servicer's facilities, data, applicable
software, records, files and Account Documentation relating to the
Account Portfolio Assets; provided, however, that such access shall
not unreasonably interfere with Servicer's normal operations.
(b) Until the Conversion Date and subject to reasonable security and
confidentiality procedures, and upon reasonable prior notice, Servicer
shall:
(i) cause its personnel to provide Bank assistance and reasonable access
during normal business hours to Servicer's premises in its
investigation of such matters as Bank may reasonably request,
provided, however, that such investigation shall be conducted in a
manner which does not unreasonably interfere with Servicer's normal
operations;
(ii) subject to provisions of any applicable licensing agreements,
provide Bank with reasonable access during normal business hours to,
or screen prints of, the parameters utilized by the various
operating systems currently in use by Servicer to manage the
Accounts;
(iii) Consult with Bank regarding material decisions in the transfer of
Accounts.
2.06 Assistance with Conversion. Bank and Servicer shall cause the Conversion
Date to occur as soon as practicable but no later than November 1, 2005 (the
"Conversion Date"), unless such delay is outside the Bank's or Servicer's
reasonable control. Both Bank and Servicer shall keep each other informed, on a
regular basis, as to the progress of its conversion efforts. Upon Bank's
reasonable request, Servicer shall provide to Bank, assistance in connection
with conversion of the Accounts to the Bank's processing and servicing system;
provided that such reasonable assistance does not interfere with Servicer's
normal operations. In addition, Servicer agrees that it shall provide in a
timely fashion such deconversion tapes and other materials necessary for
deconversion from its system to the Bank's processing and servicing system. The
form and format of such deconversion tapes shall be mutually agreed upon by Bank
and Servicer. Bank and Servicer shall each bear its own conversion expenses;
provided, however, that Bank shall bear the costs and expenses associated with
the conversion onto its processing and servicing system. To facilitate
Servicer's preparation for deconversion, Bank shall assign resources with prior
conversion experience to the conversion team and supply Servicer as soon as
practicable with a prioritized list of materials that will be
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required to effect a seamless conversion including, but not limited to, any
cardholder or applicant communications.
2.07 Ownership of Accounts; Changes to Terms. Subject to the terms of the Credit
Card Program Agreement, all Cardholder transactions and borrowings during the
term of this Agreement in connection with the Accounts shall create a
relationship of debtor and creditor between each Cardholder and Bank,
respectively; and Bank shall be the owner and holder of all Accounts and the
outstanding balances owed thereunder and shall have all obligations with respect
thereto as such owner and holder. Subject to the terms of the Credit Card
Program Agreement, Servicer acknowledges and agrees that after the Closing Date
it has (i) no right, title or interest in or to any Accounts, outstanding
balances on Accounts or payments made by Cardholders with respect to the
Accounts, and (ii) no right, privilege or power to establish or modify any terms
or conditions of the Cardholder Agreements or other instruments relating to the
Accounts, including, without limitation, the periodic finance charge or any fee
applicable to the Accounts (other than as provided in this Agreement, in the
Credit Card Program Agreement or on an individual account basis in accordance
with past practice and the Servicer's Policies and Procedures). Servicer shall
allow Bank to insert a change of ownership and terms forms, at Bank's expense
(other than ordinary postage costs incurred in mailing statements), in
statements to the Cardholders mailed after the Closing Date and shall mail a
change of ownership and terms forms, at Bank's expense, to zero balance
Cardholders after the Closing Date. Unless otherwise agreed to by the Parties,
Bank agrees that no change of terms, except as required by law, shall become
effective before the Conversion Date. In any case, Bank will cooperate with
Servicer to ensure that any communication with Cardholders regarding a change in
terms or ownership is executed in a manner that minimizes confusion to both
Cardholders and Servicer's employees. Bank shall be responsible for providing
Services with any change of terms notices.
2.08 Insurance Assumption. Bank shall take all actions necessary or advisable to
transfer from Servicer to Bank and assume all obligations in connection with any
credit insurance coverage available to Cardholders prior to the Conversion Date
such that such insurance coverage will be available to Cardholders subsequent to
the Conversion Date.
2.09 Account Documentation. The parties acknowledge that the Purchase Agreement
shall govern the parties' responsibilities with respect to delivery of Account
Documentation.
2.10 Compliance With Laws.
(a) By Servicer. From the Closing Date until the Conversion Date, Servicer
shall comply in all material respects with all federal and state laws and
regulations applicable to Servicer give notice to Services of any
applicable change in law or regulations and shall provide Servicer, at
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Bank's expense, with training in respect of compliance with such laws and
regulations.
(b) By Bank. Bank shall comply in all material respects with all applicable
federal and state laws and regulations. Bank shall also notify Servicer of
any changes in applicable laws and regulations, which impact the provision
of the Services and shall provide Servicer, at Bank's expense, with
training in respect of compliance with such laws and regulations.
2.11 Negative Covenants.
(a) Legal Action. Servicer shall not initiate any legal action with respect to
any Account without Bank's prior written consent, including, without
limitation, any repossessions or bankruptcy contests.
(b) Other Actions. Except as may be required by law, and except as permitted
by this Agreement or the Credit Card Program Agreement, Servicer shall not
intentionally take any action or fail to take any action under this
Agreement with respect to the Accounts which, in the reasonable judgment
of Servicer, will impair any material rights of Bank, and Servicer shall
not intentionally amend, terminate, or otherwise modify or prejudice any
of Bank's rights with respect to any terms or conditions of any Cardholder
Agreement, in each case, other than on an individual Account basis in
accordance with the Servicer's Policies and Procedures.
(c) Change in Servicer's Policies and Procedures. Prior to the Conversion
Date, Servicer shall not make any material change in the Servicer's
Policies and Procedures that would have an adverse effect on the Accounts,
except as may be required by this Agreement or law. Servicer shall provide
Bank with written notice prior to making any material change to the
Servicer's Policies and Procedures.
2.12 Affirmative Covenants. Servicer shall continue to use throughout the term
of this Agreement the contingency procedures used by Servicer as of the Closing,
including contingency procedures for data processing, telecommunications,
payment processing and off-site maintenance and retention of Accounts and
Account Documentation.
ARTICLE III -- FEES, PAYMENTS AND SETTLEMENT
3.01 Servicing Fees.
(a) Compensation for Services. Bank shall pay Servicer a monthly fee
("Servicing Fee") of 0.375% (4.50% annualized) of the aggregate Cardholder
Indebtedness at the end of any given Month for servicing the upcoming full
Month. If the Conversion Date occurs prior to the end of a Month, Servicer
shall return to Bank within 10 days of the Conversion
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Date, a prorata refund of the previously paid monthly Servicing Fee from
the Conversion Date until the end of the Month.
(b) Payment Terms. Servicer shall provide an invoice with supporting
documentation to Bank on or before the tenth day of each Month with
respect to amounts due under Section 3.01(a) for the immediately preceding
Month. Bank shall pay Servicer, within ten (10) days after receipt of the
invoice (such invoice to be e-mailed to Bank), all amounts set forth in
such invoice. All payments under this Agreement shall be made by wire
transfer of immediately available funds to the bank accounts designated by
the respective Parties.
(c) Payment Obligations. Notwithstanding anything to the contrary contained
herein, neither Party shall refuse to make any payment required of it
under this Agreement as a result of a breach or alleged breach by the
other Party of any of its obligations under this Agreement or any other
agreement; provided, however, any payment hereunder shall not constitute a
waiver by such Party of any rights it may have under this Agreement, the
Purchase Agreement, the Credit Card Program Agreement or law.
3.02 Settlement. Bank and Servicer each shall designate a bank account into
which settlement funds due from the other Party to this Agreement shall be
wired. From the Closing Date until the Conversion Date, Servicer shall provide
Bank with a Daily Settlement Sheet in accordance with Section 2.03. Bank or
Servicer, as the case may be, shall pay the net amount due on the Daily
Settlement Sheet each day by wire transfer to the designated settlement account
by initiating such wire transfer by 3:00 p.m., Eastern time on the same day on
which the Daily Settlement Sheet is provided, provided that in the case of Bank,
the Daily Settlement Sheet shall be received by 11:00 a.m. Eastern Time on that
day. If the Daily Settlement Sheet is not received by Bank by 11:00 a.m. Eastern
Time, the net amount due Servicer on such Daily Settlement Sheet shall be wired
by 3:00 p.m. Eastern Time on the following Business Day. In addition to any
other rights and remedies available to a Party under this Agreement, in the
event Servicer or Bank fails to make any such settlement payment by the time
required herein, and such delay results in the receiving Party being unable to
invest such funds overnight, the amount due from Servicer or Bank, as the case
may be, for such day's settlement shall be accompanied by interest on such
amount, calculated on the basis of an interest rate equal to the Federal Funds
Rate plus two percent, divided by three hundred and sixty five (365) for each
day such amount is overdue.
3.03 Payments. All payments on Accounts that are received by Servicer in
connection with its obligations under this Agreement will be processed and
credited within one (1) Business Day and in accordance with Regulation Z;
provided, however, that, as permitted by Regulation Z, Servicer may process and
credit within five (5) days after receipt any payment that does not conform to
the
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payment requirements disclosed on the Account periodic statement. All payments
received by Servicer shall be credited to Account Debtors' Accounts as of the
date of receipt. Servicer agrees that all payments received by Servicer will be
deemed to be held in trust for Bank until settled in accordance with Section
3.02. Bank shall have the right at Bank's sole cost to conduct on-site audit of
the payment processing process during normal business hours; provided, however,
that prior written notice of the audit is provided to Servicer and such audit
does not unreasonably interfere with Servicer's normal operations.
3.04 Funds Received by Servicer After Conversion Date. Following the Conversion
Date, Servicer shall use commercially reasonable efforts to forward, or cause to
be forwarded to Bank within three (3) Business Days after receipt by Servicer,
all funds received by or credited to Servicer under the Account Portfolio Assets
and, within ten (10) Business Days after receipt by Servicer, all correspondence
from Cardholders received with respect to the Account Portfolio Assets. Servicer
shall provide to Bank, via facsimile, a daily settlement sheet which shall
contain a summary of such funds received and forwarded. In the event that Bank
receives funds or correspondence relating to any account not included in the
Account Portfolio Assets, Bank shall use commercially reasonable efforts to,
within three (3) Business Days after receipt, forward, or cause to be forwarded,
to Servicer all such funds and, within ten (10) Business Days after receipt, all
such correspondence. All such funds and correspondence shall be sent by Servicer
or Bank, as applicable, by overnight mail or courier service (in each case, at
Bank's expense). The obligation to transmit funds shall continue for a period of
one year following the Conversion Date. Effective on the Conversion Date,
Servicer hereby appoints and empowers Bank as its true and lawful
attorney-in-fact solely to endorse any check or instrument made payable to
Servicer and submitted as payment on any outstanding balance of any Account and
Bank hereby appoints and empowers Servicer as its true and lawful
attorney-in-fact solely to endorse any check or instrument made payable to Bank
and submitted as payment on any outstanding balance of any Account.
ARTICLE IV -- TERMINATION OF SERVICES
4.01 Termination of Services.
(a) Early Termination of Services. Either Party to this Agreement may
terminate the Services reserving all other remedies and rights hereunder
in whole or in part as follows:
Event of Default. Upon the occurrence of an Event of Default caused
by a Party, the other Party may terminate this Agreement by giving
to the defaulting Party no less than ten (10) Business Days' prior
written notice of its intent to terminate. Such written notice shall
describe in detail the Event of Default. For purposes of this
Agreement, an "Event of Default" hereunder shall occur in the event
a Party fails to make a payment in accordance with Article III
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(other than pursuant to a bona fide dispute over the amount which is
payable) or materially defaults in the performance of any of its
other duties or obligations under this Agreement. If the defaulting
Party makes the payment required in accordance with Article III
within ten (10) Business Days from the date of receipt of written
notice from the other Party, or, in all other cases, corrects the
condition which resulted in the Event of Default within twenty (20)
Business Days from the date of notice from the other Party, the
Services shall not terminate.
(b) Effect of Termination of Services. The termination of this Agreement shall
not terminate, affect, or impair any rights, obligations, or liabilities
of either Party hereto which may accrue prior to such termination or
which, under the terms of this Agreement, continue after the termination
of this Agreement.
ARTICLE V -- REPRESENTATIONS AND WARRANTIES
5.01 Representations and Warranties of Servicer. Servicer represents and
warrants to Bank as follows:
(a) Organization. Servicer is a corporation validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania.
(b) Capacity; Authority; Validity. Servicer has all necessary corporate power
and authority to enter into this Agreement and to perform all of the
obligations to be performed by it under this Agreement. This Agreement and
the performance by Servicer of its obligations hereunder have been duly
and validly authorized by all necessary corporate action of Servicer, and
this Agreement has been duly executed and delivered by Servicer and,
assuming the due authorization, execution and delivery hereof by Bank,
constitutes the valid and binding obligation of Servicer, enforceable
against Servicer in accordance with its terms (except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium,
receivership, conservatorship, and other laws relating to or affecting
creditors' rights generally and by general equity principles.)
(c) Conflicts; Defaults. Neither the execution and delivery of this Agreement
by Servicer nor the performance by Servicer of its obligations hereunder
will (i) conflict with, result in the breach of, constitute an event which
would, or with the lapse of time or action by a third party or both would,
result in a default under, or accelerate the performance required by, the
terms of any material contract, instrument or commitment to which Servicer
is a party or by which it is bound, (ii) violate the articles of
incorporation or by-laws of Servicer, (iii) result in the creation of any
lien, charge or encumbrance upon any of the Account Portfolio Assets, or
(iv) require any consent or approval under any judgment, order, writ,
decree,
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permit or license, to which Servicer is a party or bound, or to which any
of the Account Portfolio Assets are subject.
(d) Consents. Except as contemplated by the Purchase Agreement, no consent,
authorization or approval of, or exemption by, or filing with, any
governmental authority or regulatory agency or any other person is
required to be obtained by Servicer in connection with the execution and
delivery by Servicer of this Agreement or Servicer's performance of its
obligations hereunder.
(e) Compliance with Laws. Except to the extent that Servicer's performance
hereunder requires application of Bank's policies and procedures,
Servicer's execution and delivery of this Agreement and Servicer's
performance hereunder will comply in all material respects with federal
and state laws and regulations.
5.02 Representations and Warranties of Bank. Bank represents and warrants to
Servicer as follows:
(a) Organization. HSBC Bank Nevada, N.A. is a national banking association,
validly existing and in good standing under the laws of the United States
of America.
(b) Capacity; Authority; Validity. Bank has all necessary corporate power and
authority to enter into this Agreement and to perform all of the
obligations to be performed by it under this Agreement. This Agreement and
the performance by Bank of its obligations hereunder have been duly and
validly authorized by all necessary corporate action of Bank, and this
Agreement has been duly executed and delivered by Bank and, assuming the
due authorization, execution and delivery hereof by Servicer, constitutes
the valid and binding obligation of Bank, enforceable against Bank in
accordance with its terms (except as such enforcement may be limited to
bankruptcy, insolvency, reorganization, moratorium, receivership,
conservatorship, the rights and obligations of receivers and conservators
of insured depository institutions under 12 U.S.C. Sections 1821(d) and
(e) and other laws relating to or affecting creditors' rights generally
and by general equity principles.)
(c) Conflicts; Defaults; Etc. Neither the execution and delivery of this
Agreement by Bank nor the performance by Bank of its obligations hereunder
will: (i) conflict with, result in the breach of, constitute an event
which would, or with the lapse of time or action by a third party or both
would, result in a default under, or accelerate the performance required
by, the terms of any material contract, instrument or commitment to which
Bank is a party or by which it is bound, (ii) violate the articles of
incorporation or by-laws, or any other equivalent organizational document,
of Bank, (iii) result in the creation of any lien, charge or encumbrance
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upon any of the Account Portfolio Assets, or (iv) require any consent or
approval under any judgment, order, writ, decree, permit or license, to
which Bank is a party or bound, or to which any of the Account Portfolio
Assets are subject.
(d) Consents. Except as contemplated by the Purchase Agreement, no consent,
authorization or approval of, or exemption by, or filing with, any
governmental authority or regulatory agency or any other person is
required to be obtained by Bank in connection with the execution and
delivery by Bank of this Agreement or Bank's performance of its
obligations hereunder.
(e) Compliance with Laws. Bank's execution and delivery of this Agreement and
Bank's performance hereunder will comply in all material respects with
applicable federal and state laws and regulations.
ARTICLE VI - - CONFIDENTIALITY AND INFORMATION SECURITY
6.01 Confidential Information. Except as specifically provided herein, the
provisions with respect to Confidential Information shall be the same as the
provisions set forth in Section 6.5 of the Purchase Agreement, which provisions
shall be incorporated herein by reference in their entirety including the
survival provisions therein.
6.02 Information Security. Bank and Servicer represent and warrant that they
have developed and implemented and will maintain effective information security
policies and procedures that include administrative, technical and physical
safeguards designed to 1) ensure the security and confidentiality of
Confidential Information provided to the other hereunder, 2) protect against
anticipated threats or hazards to the security or integrity of such Confidential
Information, and 3) protect against unauthorized access or use of such
Confidential Information. All Bank and Servicer personnel handling such
Confidential Information have been appropriately trained in the implementation
of the Party's information security policies and procedures. The Parties
regularly audit and review their information security policies and procedures to
ensure their continued effectiveness and determine whether adjustments are
necessary in light of circumstances including, without limitation, changes in
technology, customer information systems or threats or hazards to Confidential
Information.
ARTICLE VII -- INDEMNIFICATION
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7.01 Indemnification.
(a) By Servicer. Servicer shall indemnify and hold harmless Bank and its
Affiliates and their respective officers, directors and employees, from
and against, any and all liability, damages, costs and expenses,
including, without limitation, any attorneys' fees, disbursements and
court costs ("Losses") incurred by reason of: (i) the inaccuracy of any
representation prior to, or the breach of any warranty of Servicer
contained in this Agreement occurring earlier than, one (1) year from the
Conversion Date; or (ii) the failure to perform any covenant of Servicer
hereunder, including the covenant to materially perform any Services in
accordance with the terms of this Agreement.
(b) By Bank. Bank shall indemnify and hold harmless Servicer and its
Affiliates and their respective officers, directors, employees,
subcontractors and permitted assigns, from and against, any and all Losses
incurred by reason of: (i) the inaccuracy of any representation or the
breach of any warranty of Bank contained in this Agreement; or (ii) the
failure to materially perform any covenant of Bank hereunder.
(c) Indemnification Procedures. Except as otherwise expressly provided herein,
the procedures to be followed as to notice of claims, selection of
counsel, settlement of claims and subrogation with respect to the
indemnifications set forth in Sections 7.01(a) and 7.01(b) shall be the
same as set forth in the Purchase Agreement in Article 7 thereof.
(d) Survival of Indemnification. The provisions of this Article VII shall
survive for a period of three (3) years after the Conversion Date with
respect to all claims.
(e) Limitation on Indemnification. In no event shall any Party be indemnified
for any special, incidental, punitive or consequential damages incurred by
such Party except to the extent that such damages are recovered by a
non-party to this Agreement..
ARTICLE VIII -- MISCELLANEOUS
8.01 Cooperation. Bank shall furnish or cause to be furnished to Servicer all
powers of attorney and other documents necessary or appropriate to enable
Servicer to carry out its servicing duties hereunder. Each Party shall provide
such reasonable cooperation and assistance to the other Party as may be
necessary to enable Servicer to perform the servicing obligations hereunder and
to enable Bank to monitor the Accounts and the servicing obligations of
Servicer.
8.02 Notices. Except as otherwise provided in this Agreement, all notices
permitted or required by this Agreement shall be in writing and shall be deemed
to have been duly gien (a) upon personal delivery (whether by messenger,
overnight delivery, or otherwise), (b) upon facsimile transmission (receipt of
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which has been orally confirmed by the recipient), or (c) five (5) Business Days
after deposit, postage prepaid, in the United States mail, if sent by certified
or registered mail, return receipt requested, and addressed:
If to Servicer:
The Bon Ton Stores, Inc.
2801 East Market Street
York, Pennsylvania 17402
Attention: Treasurer
Facsimile: 717-751-3087
with a copy to
Wolf, Block, Schorr and Solis-Cohen LLP
250 Park Avenue
New York, New York 10177
Attention: Herbert Henryson II
Facsimile: 212-672-1192
If to Bank:
HSBC Bank Nevada, N.A.
1111 Town Center Drive
Las Vegas, NV 89144
Attn: President
Facsimile:(702)243-1260
copy to:
HSBC Retail Services Legal Department
2700 Sanders Road
Prospect Heights, IL 60070
Attn: General Counsel
Facsimile: (847) 564-6001
or in accordance with such other address information as the party to receive
notice may provide in writing to the other party in accordance with the above
notice provisions. Any notice given by any other method will be deemed to have
been duly given upon receipt thereof.
8.03 Assignment. Except as otherwise provided herein, this Agreement shall not
be assigned or transferred by either party; provided, however, that Servicer may
delegate all or part of its servicing obligations under this Agreement to any
Affiliate or any third party; provided further, that no such delegation shall
relieve Servicer of its obligations hereunder.
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8.04 Severability. If any provision or portion thereof of this Agreement is held
invalid, illegal, void or unenforceable by reason of any rule of law,
administrative or judicial provision, or public policy, such provision shall be
ineffective only to the extent invalid, illegal, void, or unenforceable, and the
remainder of such provision and all other provisions of this Agreement shall
nevertheless remain in full force and effect.
8.05 Entire Agreement; Amendments. This Agreement, together with the Exhibits
and Schedules hereto (which are hereby incorporated into and made a part
hereof), constitute the entire agreement between the parties relating to the
subject matter herein. This Agreement may be amended only by a written document
signed by each of the parties. In the course of the planning and coordination of
this Agreement, written documents have been exchanged between the Parties. Such
written documents shall not be deemed to amend or supplement this Agreement.
This Agreement and the rights and obligations created hereunder shall be binding
upon and inure solely to the benefit of the parties hereto and their respective
successors and permitted assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement.
8.06 Waivers. One Party hereto may, with the prior written consent of the other
Party hereto: (a) extend the time for the performance of any of the obligations
or other actions of the other Party under this Agreement; (b) waive any
inaccuracies in the representations or warranties of the other Party contained
in this Agreement or in any document delivered pursuant to this Agreement; (c)
waive compliance with any of the conditions or covenants of the other Party
contained in this Agreement; or (d) waive or modify performance of any of the
obligations of the other Party under this Agreement. Except as provided in the
preceding sentence, no action taken pursuant to this Agreement, including
without limitation, any investigation by or on behalf of one Party, shall be
deemed to constitute a waiver by such Party of compliance with any of the
representations, warranties, covenants, conditions or agreements contained in
this Agreement. The waiver by one Party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach.
8.07 Governing Law; Jurisdiction; Waiver of Trial by Jury. This Agreement shall
be governed by, and construed in accordance with, the laws of the State of
Delaware without regard to its conflict of laws rules. With respect to any
action, suit or proceedings relating to this Agreement or arising in connection
with the transaction contemplated hereby, the parties irrevocably shall submit
to the jurisdiction of the Federal and State courts of Delaware, waive any
objection to the laying of venue of any such action, suit or proceeding in any
such court, waive any claim that any such action, suit or proceeding has been
brought in an inconvenient forum, and waive the right to object that such court
does not have jurisdiction over the parties. The parties further irrevocably
waive the right to trial by jury in any action, suit or proceeding of any kind
or nature in any court to which it may be a party.
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8.08 Account Documentation. Until the Conversion Date, and for any period
required by applicable law, each Party shall maintain books and records, in
accordance with standard accounting practices and procedures, of all
transactions arising in connection with its obligations pursuant to this
Agreement.
8.09 Expenses. Except as otherwise expressly set forth herein, any costs,
expenses, or other charges incurred by either of the Parties hereto shall be
borne by the party incurring such cost, expense or charge.
8.10 Relationship of the Parties. The Parties hereto agree that in performing
their responsibilities pursuant to this Agreement, they are in the position of
independent contractors. This Agreement is not intended to create, nor does it
create, and shall not be construed to create, a relationship of partner or joint
venture or any association for profit between Servicer and Bank. Servicer and
Bank acknowledge that this Agreement is being entered into by Servicer as an
incident to the Purchase Agreement for a limited transitional period as an
accommodation to Bank and that Servicer does not intend to, and shall not be
required to act or serve as a fiduciary of Bank, segregate Bank's funds, or
satisfy regulatory or statutory requirements applicable to Bank.
8.11 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement on the day and year first above written.
THE BON TON STORES, INC., SERVICER
By: /s/ H. Todd Dissinger
________________________________
Title: Vice President and Treasurer
_____________________________
HSBC BANK NEVADA, N.A., BANK
By: /s/ Asin Majeed
________________________________
Title: Executive Vice President
_____________________________
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