Secured Party Bill of sale
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THE CIT GROUP/COMMERCIAL SERVICES, INC., having an office at 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as a secured party in
possession ("Secured Party"), as of this 30th day of June, 2000, hereby sells,
transfers and conveys all of the rights, title and interest of Secured Party
and of Xxx Xxxxxx, Inc. ("Debtor") to DONNKENNY APPAREL, INC., having an
office at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Purchaser"), its
successors and assigns, in and to certain property (collectively, the "Assets)
described on Exhibit A, attached hereto and made a part hereof, for an
aggregate purchase price of One Million One Hundred Forty Thousand Dollars
($1,140,000), the receipt and sufficiency of which is hereby acknowledged.
Secured Party represents and warrants to Purchaser that (a) it holds
a perfected first security interest in the Assets, (b) it has taken possession
of the Assets, (c) the sale of the Assets is being made in a commercially
reasonable manner pursuant to Section 9-504 of the New York Commercial Code,
(d) the inventory portion of the Assets has a cost value of not less than One
Million Dollars ($1,000,000), (e) upon consummation of such sale, the Assets
are free and clear of any liens or security interests or adverse claim, (f)
upon consummation of such sale, the Purchaser has the sole and exclusive right
to possession of the Assets, and (g) upon consummation of such sale, Purchaser
will have valid and marketable title to the Assets, but only to the same
extent that Debtor had valid and marketable title to the Assets immediately
prior to the Second Party's taking possession of the Assets.
Notwithstanding anything herein or otherwise to the contrary, Secured
Party hereby agrees that, in connection with the transactions contemplated
hereby, Purchaser is not assuming any liability or obligation of the Debtor.
Secured Party hereby agrees to indemnify and hold Purchaser harmless
from and against any and all claims, actions, causes of action, losses,
damages, liabilities and expenses (including reasonable attorneys' fees and
expenses) arising out of (a) a breach of any representation or warranty made
by Secured Party herein or (b) any claim of any third party (the "Claim") in
any way relating to transactions occurring at, prior to or contemplated by the
delivery of this Bill of Sale (the "Indemnity"). Purchaser shall promptly
notify Secured Party in writing if a third party makes a Claim ("Notice of
Claim"); provided that any such failure to so notify the Secured Party shall
only relieve the Secured Party of its obligations hereunder to the extent that
the Secured Party is materially and adversely prejudiced thereby. In any such
event, Purchaser shall promptly deliver to Secured Party all relevant
communications and documentation pertaining to such Claim. Upon receipt of a
Notice of Claim, Secured Party shall promptly with
counsel of its choice defend against the Claim to the extent covered by
the Indemnity and identified in the Notice of Claim. If Secured Party
shall fail to act promptly as aforesaid and shall further fail to so act
promptly after written notice for Purchaser to Secured Party specifying
Secured Party's failure to so act ("Default Notice"), Purchaser shall
have the right to undertake the defense of such Claim itself, with
counsel of its choice and shall be reimbursed by Secured Party for its
reasonable attorneys' fees and expenses in connection therewith. Subject
to the immediately preceding sentence, Secured Party shall have the
exclusive right to defend and/or proceed with and prosecute all
proceedings, negotiations, settlements and compromises involving Claims
covered in whole or in part by the Indemnity with counsel of its choice,
and in the case of settlements and compromises, on terms reasonably
acceptable solely to Secured Party provided that to the extent
Purchaser's access to possession, use and ability to dispose of the
Assets are actually being interfered with Purchaser shall have the
right, at the Secured Party's expense, to employ counsel of its own
choice and in such event and to such extent, Secured Party's counsel and
Purchaser's counsel shall cooperate with respect to the defense of any
Claim covered in whole or in part by the Indemnity.
Purchaser hereby agrees to reimburse Secured Party for any
amounts paid to a third party by the Secured Party on behalf of Debtor
prior to the closing of the purchase and sale transaction being effected
hereby, provided that (i) such amounts relate directly to the cost of
the inventory that is part of the Assets that are being purchased hereby
and (ii) Secured Party provides satisfactory documentation to the
Purchaser regarding the requirement described in clause (i) hereof.
In addition, the Purchaser agrees to post letters of credit in
favor of the Secured Party in an aggregate amount equal to $479,911 to
serve as back-to-back letters of credit to the letters of credit listed
on Exhibit E as to which the Debtor is the account party.
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EXCEPT AS SPECIFICALLY PROVIDED ABOVE, THE SALE, TRANSFER AND
CONVEYANCE OF ALL OF THE ASSETS BY SECURED PARTY TO PURCHASER AND PURCHASER'S
PURCHASE OF THE ASSETS IS MADE "AS IS" AND "WHERE IS" AND WITHOUT ANY
WARRANTIES BY, REPRESENTATIONS BY OR RECOURSE TO SECURED PARTY OF ANY KIND,
NATURE OF DESCRIPTION WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES
AND/OR REPRESENTATIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
PHYSICAL CONDITION, QUANTITY OR VALUE.
IN WITNESS WHEREOF, Secured Party has executed and delivered this
Bill of Sale on the date first above written.
THE CIT GROUP/COMMERCIAL
SERVICES, INC.
/s/
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By:
Title:
READ AND AGREED:
DONNKENNY APPAREL, INC.
/s/Xxxxxx X. Xxxx
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By: Xxxxxx X. Xxxx
Title:XXXXXXXX OF THE BOARD
CHIEF EXECUTIVE OFFICER
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EXHIBIT A
TO
Bill of Sale
between
THE CIT GROUP/COMMERCIAL SERVICES, INC.
and
DONNKENNY APPAREL, INC.
The Assets being sold hereunder consist of the following property
presently owned by Xxx Xxxxxx, Inc. (a) all inventory; (b) all general
intangibles, including, but not limited to, all open purchase orders, all
transferable license agreements (including , to the extent transferable, the
license agreement with Xxxxx Xxxxx, but excluding the license agreement with
Xxxxxx Xxxx) and the tradenames "Decade Designs" and "A.Q. Collection"; and
(c) the books and records relating to the foregoing.
This sale excludes all other property whatsoever of whatsoever kind
and nature owned by Xxx Xxxxxx, Inc., including, but not limited to all
accounts and the goods represented thereby including but not limited to all
returns from customers of Xxx Xxxxxx, Inc.
EXHIBIT B
To
Bill of Sale
between
THE CIT GROUP/COMMERCIAL SERVICES, INC.
and
DONNKENNY APPAREL, INC.
Letter of
Credit No. Amount Expiration Issuer Beneficiary
---------- ------ ---------- ------ ----------
A-202293 $453,047 8/2/00 Chase Cotton Land
A-299835 $26,864 7/7/00 Chase Jiangsu Silk I/E
Group Corp.
