AMENDMENT NO. 1
TO
WAREHOUSING AGREEMENT
AMENDMENT NO. 1 TO WAREHOUSING AGREEMENT, dated as of
May 28, 1994, between XXXXXXXX CONVERTIBLES, INC., a Delaware
corporation ("Xxxxxxxx"), and XXXXXXXX WAREHOUSING, INC., a New
York corporation ("Warehousing")
W I T N E S S E T H:
WHEREAS, Xxxxxxxx and Warehousing are parties to a Warehousing
Agreement (the "Warehousing Agreement"), dated as of December 31, 1993,
pursuant to which the parties agreed to certain warehousing and distribution
arrangements in connection with the operation of Xxxxxxxx Convertibles stores;
WHEREAS, the parties desire to amend certain of the terms and
conditions of the Warehousing Agreement upon the terms and conditions
hereinafter set forth;
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. All terms used herein which are
defined in the Warehousing Agreement and not otherwise defined
herein are used herein as defined therein.
2. Amendment to First Preamble. The first "Whereas"
clause of the Warehousing Agreement is hereby amended by deleting
such clause in its entirety and replacing it with the following:
WHEREAS, Xxxxxxxx is in the business of owning, operating and
licensing retail stores operating under the name (i) "Xxxxxxxx
Convertibles(REGISTERED TRADEMARK) specializing in sofabeds,
companion pieces and related items, (ii) Xxxxxxxx Leather
Specializing in leather furniture and
(iii) Elegant Living specializing in upholstered living room
furniture (the Xxxxxxxx Convertibles, Xxxxxxxx Leather and Elegant
Living Stores are hereinafter referred to as the "Xxxxxxxx Stores");"
3. Amendment to Second Preamble. The second
"Whereas" clause of the Warehousing Agreement is hereby amended
by deleting the phrase "and Florida" appearing therein and
inserting the phrase ", Florida and California" in its place.
4. Amendment to Definitions. The definition of the
word "Merchandise" appearing in the Warehousing Agreement is
hereby amended by deleting such phrase in its entirety and
replacing it with the following:
""Merchandise" shall mean (i) sofabeds, sofas, loveseats and
related articles compatible with the type and quality of merchandise
generally sold in Xxxxxxxx Convertibles stores, (ii) leather furniture
and related articles compatible with the type and quality of
merchandise generally sold in Xxxxxxxx Leather stores, (iii)
upholstered living room furniture and related articles compatible with
the type and quality of merchandise generally sold in Elegant Living
stores and (iv) Accessories."
5. Amendment to Section 3(a). Section 3(a) of the
Warehousing Agreement is hereby amended by deleting such Section
in its entirety and inserting the following in its place.
"3. Warehousing Fees. (a) Xxxxxxxx shall pay to Warehousing
within 25 days after the end of each calendar month a warehousing fee
equal to the sum of (i) 5% of the aggregate Net Sales (as defined
below) of all Pre-purchased Inventory (other than Accessories) and
Special Order Merchandise (other than Accessories) delivered to
customers of Xxxxxxxx Stores owned by Xxxxxxxx or its subsidiaries
during such calendar month and (ii) 5% of the aggregate suggested
retail selling price of all Merchandise delivered during such calendar
month to Xxxxxxxx Stores owned by Xxxxxxxx or its subsidiaries for
display or use. With respect to Merchandise delivered to customers of
Xxxxxxxx Stores owned by Xxxxxxxx or any of its subsidiaries,
affiliates or partnerships controlled by Xxxxxxxx or any subsidiary of
Xxxxxxxx or delivered to such stores for display or use, Xxxxxxxx
shall be solely and exclusively entitled to any and all discounts or
rebates, including, without limitation, volume related discounts and
any warehouse handling, truckload or other shipping discounts
(including early payment discounts) refunded or credited to Xxxxxxxx
by its suppliers and Warehousing shall have no interest in, and not be
entitled to, any such discounts or rebates."
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6. Amendment to Section 9 (b) . Section 9 (b) of the
Warehousing Agreement is hereby amended by deleting the phrase
"Attention: Xxxxxx X. Xxxxxxx" appearing therein and inserting
the phrase "Attention: Xxxx X. Love" in its place.
7. Continued Effectiveness. The Warehousing Agreement is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed
in all respects except that all references in the Warehousing Agreement to (i)
Xxxxxxxx Convertibles stores shall mean Xxxxxxxx Stores as such term is defined
in this Amendment and (ii) "this Agreement", "hereto", "herein", "thereof",
"hereunder" or words of like import referring to the Warehousing Agreement
shall mean the Warehousing Agreement as amended by this Amendment.
8. Effective Date. The provisions of this Amendment
shall be retroactive to, and effective as of, January 1, 1994.
9. Governing Law. This Amendment shall be governed
by and construed in accordance with the laws of the State of New
York, without giving effect to the conflict of laws principles
thereof.
10. Counterparts. This Amendment may be executed in
any number of counterparts, each of which shall be deemed an
original and together which shall be deemed one instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the day and year first above written.
XXXXXXXX CONVERTLES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: President
XXXXXXXX WAREHOUSING, INC.
By: /s/ Xxxx X. Love
-------------------------
Name: Xxxx X. Love
Title: President
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