Exhibit 10.23
CONDITIONAL SALE AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 15th day of August 2002.
BY AND BETWEEN: ROSY BLUE HONGKONG LTD., a corporation
having an office in Hongkong
(hereinafter the "Seller")
AND: XXXXX XXXXX & SONS INC., a corporation
governed under the laws of Canada,
having its Head Office at 0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx, X0X 0X0
(hereinafter the "Buyer" or "Birks")
WHEREAS the Seller has agreed to sell from time to time the goods
described in Appendix A attached hereto (the "Goods"), to the Buyer, the whole
upon the terms and conditions hereinafter set forth in this Agreement;
NOW, THEREFORE, THIS AGREEMENT WITNESSES THAT IN CONSIDERATION of the
mutual covenants hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. The Buyer agrees to buy the Goods selected by the Buyer shipped from
time to time by the Seller.
2. The title to, property and ownership in any Goods now or hereafter
in the possession of the Buyer are and shall remain with the Seller and subject
at all times to the direction and control of the Seller and free from any and
all claims, demands, charges and liens whatsoever, until the entire purchase
price thereof, or any outstanding balance thereon, have been fully paid to the
Seller in accordance with the provisions of this Agreement. To secure the full
payment of the entire purchase price of the Goods, or of any outstanding balance
thereon, the Buyer hereby grants and conveys, to the Seller, a security interest
in all the Goods purchased hereunder as well as a security interest in the
proceeds of sale of the Goods. Notwithstanding the foregoing, for the purposes
of the laws of the province of Quebec, this agreement constitutes an instalment
sale agreement pursuant to articles 1745 to 1749 of the Civil Code of Quebec and
until full payment of the entire purchase price or of any outstanding balance
thereof or of any other sums payable under this agreement, the title to and
ownership of the Goods, replacement and proceeds of sale thereof, shall remain
in the Seller, but at Buyer's risk. Furthermore, for the purposes of the laws of
the province of Quebec, in order to secure all its obligations under this
Agreement, the Buyer hereby hypothecates to and in favor of the Seller, the
proceeds of any sale or other disposition of the Goods and any debts resulting
from such sale or other disposition as well as any insurance or expropriation
indemnity payable in respect of the foregoing, to the extent of the sum of CDN$
1,000 with interest thereon at the rate of twenty-five percent (25%) per annum.
3. The Goods and any proceeds of sale thereof, from the date of
shipment of the Goods to the Buyer until such time as the unsold Goods are
returned by the Buyer to the Seller or
until the Seller has been paid in full the price of all such Goods sold in
accordance with this Agreement, shall be at the absolute risk of the Buyer.
4. The Buyer acknowledges that the Goods are personal property and
shall be collateral for all purposes under applicable conditional sale and
personal property legislation. The Seller shall be entitled to file this
agreement as a security agreement, conditional sales contract, instalment sale
agreement, or otherwise and/or to file a financing statement, RD Form, or other
document to evidence the security interest granted to the Seller hereunder and
the reservation of title with the Seller. The Buyer hereby appoints the Seller
as its agent and attorney-in-fact to execute any financing statement, RD Form,
or other document which may be required to perfect Seller's security interest
hereunder. The Buyer hereby waives the right to receive a copy of any fixtures
notice and any financing statement filed by the Seller relating to this
agreement, or any verification statement issued by any personal property
registry (including the Saskatchewan Personal Property Registry) that relates to
any such financing statement. The parties hereto agree that The Land Contracts
(Actions) Act (Saskatchewan) shall have no application to any action as defined
in such Act with respect to this Agreement and that The Limitation of Civil
Rights Act (Saskatchewan) shall have no application to this Agreement.
5. The Buyer hereby agrees:
5.1 to maintain the Goods in its premises set out in Appendix A
attached hereto (the "Stores");
5.1 to identify and hold the Goods separately, and to hold
separately in a segregated account the proceeds arising from
the sale of the Goods, in both cases as a gratuitous deposit
for and on behalf of the Seller, until the purchase price for
the Goods has been paid in full;
5.2 to indemnify, defend and hold the Seller harmless from and
against all damage, depreciation or loss (hereinafter referred
to as a "Loss") of or to the Goods, including, without
limiting the generality of the foregoing, Loss due to
pilferage, fire, theft, disappearance, destruction, flooding,
deterioration or otherwise, and to maintain in force, an
insurance policy or policies, at its own expense, for the
duration of this Agreement, providing coverage against such
Loss with reputable insurers for the full replacement value
thereof. The Seller shall be added as loss payee with regard
to the Goods in said insurance policy or policies and evidence
thereof shall be provided to the Seller upon request;
5.3 to keep the Goods and the proceeds therefrom free and clear
from any lien, charge, hypothec, security interest or
encumbrance whatsoever;
5.4 to pay all business and other taxes imposed on the Goods or
the location thereof, by reason of this Agreement;
5.5 to collect and remit to the appropriate authorities all taxes,
rates, fees, levies or other amounts due by virtue of its sale
of the Goods to any third party and to indemnify, defend and
save the Seller harmless from and against any liability which
may be incurred by the Seller in respect of such taxes, rates,
fees, levies or other amounts;
5.6 to maintain a separate set of books and records showing the
separate transactions made by the Buyer in respect of the
Goods, which shall be up-to-date and accurate, and to make
available on the Buyer's premises such books and records for
inspection by the Seller from time to time during business
hours, which inspection shall be made by the Seller without
unduly disturbing the Buyer's business;
5.7 to use its best efforts to sell the Goods to its customers in
the ordinary course of business.
6. Upon sale by the Buyer of any of the Goods, the Buyer shall
forthwith, and in any event within thirty (30) days from the date on which the
sales report (reporting the sale of such Goods) would be due, remit complete and
full payment to the Seller of the agreed upon purchase price for the Goods, the
Buyer hereby expressly acknowledging the Seller's rights of ownership to said
proceeds arising from the sale thereof until full payment of the purchase price
for the Goods to the Seller. Any item from among the Goods which is returned to
the Buyer for credit within such thirty (30) day period will be treated as if
the sale had not occurred. The purchase price for the Goods are as stated in
Appendix A.
7. The Buyer agrees to furnish to the Seller on a monthly basis (on or
before the 15th day of each month) a separate sales report indicating all sales
of the Goods in its possession for the prior month.
8. During the annual physical inventory conducted by Buyer, Buyer shall
prepare and submit to Seller, within sixty (60) days after the completion of
such inventory, a report reconciling Seller's outstanding Goods to physical
inventory on hand (the "Reconciliation Report"). The shrinkage evidenced by the
Reconciliation Report shall be deemed to reflect sales of Goods to be paid for
in accordance with the payment terms of this Agreement. The Reconciliation
Report shall be signed by the Seller and Buyer to certify their agreement to the
contents thereof.
9. The Seller shall have the right for the duration of this Agreement,
to send an employee or representative to any of the Stores at any time during
normal business hours, to examine and count the Goods, and the Buyer will extend
all reasonable assistance in connection therewith. The Seller undertakes to
exercise such right in a reasonable way.
10. In the event of a discrepancy in inventories between the inventory
provided by the Buyer and a physical count of the Goods, the latter shall
prevail, and the Seller shall immediately issue an invoice or a credit note to
the Buyer, as the case may be, to make the necessary adjustments. All invoices
and credit notes issued pursuant to this clause shall be payable upon receipt
thereof by the Buyer, and the Goods referred to therein shall be invoiced or
credited, as the case may be, at the stipulated price.
11. The Buyer represents to and warrants and covenants and agrees with
the Seller as follows:
11.1 it is a corporation legally incorporated and validly existing,
in good standing, under the laws of the Canada, with full
corporate power to enter into this Agreement;
11.2 the entering into of this Agreement and the performance of the
Buyer's obligations hereunder have been duly authorized by all
necessary corporate action on its part;
11.3 the making and performance of this Agreement will not result
in the breach of, constitute a default under, contravene any
provision of, or result in the creation of any lien, charge,
encumbrance or security interest upon any of its property or
assets pursuant to any of its stocks, bonds, notes or
debentures outstanding, or any agreement, indenture or other
instrument to which it is a party or by which it or its
property may be bound or affected;
11.4 on the date hereof, the Buyer's only right, title and interest
in and to the Goods is hereunder and the Buyer owns no Goods
or other products of the Seller;
11.5 except in the case of the Stores located at 00 Xxxx Xxxxxx,
Xxxxx Xxxx, Xxx-Xxxxxxxxx, Xxxxxx, in respect of which it is
the owner of such premises, it is the tenant under each of the
leases for the premises where the Stores are located, that all
rent due by it under such leases is current and not in arrears
and that it is not in default of any terms of any leases as of
the date of execution hereof.
12. The term of this Agreement shall commence on the date hereof and
shall continue for an indefinite term, provided that (i) the Seller shall be
entitled to terminate this Agreement immediately upon ten (10) days notice to
the Buyer for any reason determined to be appropriate by the Seller; and (ii)
the Buyer shall be entitled to terminate this Agreement upon ten (10) days
notice to the Seller for any reason determined to be appropriate by the Buyer.
13. Upon termination of this Agreement:
13.1 the Buyer agrees, at its sole expense, to return to the Seller
or to deliver forthwith to the address and in a manner
designated by the Seller, all unsold Goods;
13.2 the Seller shall have, in addition to any other rights and
remedies provided by law, the absolute right to take
possession of and remove its Goods without process of law and
for that purpose may enter at any time any premises where the
Goods are situated.
14. No waiver by the Seller of any default shall operate as a waiver of
any other default and the terms of this Agreement shall be binding upon the
successors and assigns of the parties hereto. In particular, but without
restriction, the acceptance by the Seller of payments on dates other than those
when such payments are required to be made pursuant to this Agreement shall not
constitute a waiver of any rights of the Seller pursuant to this Agreement nor
any implicit or explicit amendment to the terms of this Agreement.
15. The Seller may, at any time, irrespective of default or termination
of this Agreement, remove or cause to be removed any or all of its Goods from
the possession of the Buyer. The Buyer agrees not to remove the Seller's unsold
Goods from the Stores, other than by sale in the ordinary course of the Buyer's
business, without the prior written consent of the Seller.
16. Notwithstanding any termination of this Agreement, each party shall
continue to be liable for all of its unfulfilled obligations to the other
incurred prior to or upon such termination.
17. The Buyer agrees to immediately advise and inform the Seller, in
writing, in the event of seizure before or after judgment of the Goods in any of
the Stores, or in the event Buyer becomes insolvent or bankrupt or goes into
liquidation or receivership, either voluntarily or under an order of a court of
competent jurisdiction, or makes a general assignment for the benefit of its
creditors or otherwise acknowledges itself insolvent. The Buyer agrees to assist
the Seller in retaking immediate possession of its unsold Goods not yet returned
to the Seller and any and all proceeds of sale.
18. The Parties agree that all values and amounts contemplated in this
Agreement and related documents are in United States currency unless indicated
otherwise.
19. This Agreement is personal in character and shall not be assigned by
the Buyer. This Agreement does not constitute the Buyer an agent of the Seller.
Nothing in this Agreement shall be deemed to constitute either of the Parties
the partner of the other and it is understood and agreed that the relationship
between the Parties is that of independent contractor. The terms and conditions
of this Agreement are set out in full herein and there is no agreement, warranty
or condition whereby the terms and conditions hereof can be modified in any
manner whatsoever otherwise than by a written amendment executed by the
authorized representatives of the Parties.
20. Any notice or other written communication permitted or required to
be given hereunder shall be in writing and shall be given by delivery or sent by
telecopier or similar telecommunications device and addressed:
20.1 to the Seller at:
ROSY BLUE HONGKONG LTD.
Xxxx 0000-0-Xxxx Xxxxxxxx Xxxxx
00-00X Xxxxx'x Xxxx Xxxxxxx
Xxxxxxxx
20.2 to the Buyer at:
XXXXX XXXXX & SONS INC.
Attn: Vice President Merchandising
Copy to Vice president General Counsel
0000, Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
or such other address as may be designated from time to time in accordance with
this section, and shall be deemed to have been received if sent by telecopier or
similar telecommunications device on the next business day following such
transmission or, if delivered, to have been given and received on the date of
such delivery.
21. The remedies of the Seller hereunder, at law and in equity, are
cumulative and are not exclusive of one another. The exercise of one or more
remedies shall not prevent the Seller
from exercising any or all other rights it may have. The acceptance by the
Seller of any payment after default by the Buyer hereunder shall not operate to
extend the time of payment of any amount then remaining unpaid hereunder or
constitute a waiver of any of the other rights of the Seller and any extension,
latitude, benefit or indulgence granted by the Seller shall not in any way
prevent the Seller from requiring the Buyer, thereafter, to make strict and
punctual payments and performance of the terms and conditions of this Agreement.
22. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and may be modified only by an
instrument in writing signed by both parties.
23. The introductory paragraph hereto and Appendix A annexed to this
Agreement are an integral part of this Agreement.
24. Words importing the singular number only shall include the plural,
and vice versa, and words importing the masculine shall include the feminine
gender, and words importing general persons shall include entities and
corporations and vice versa.
25. The Buyer agrees to sign any document that may be necessary in the
opinion of the Seller in order to give effect to and implement the foregoing.
26. This Agreement shall be governed by the applicable conditional sale
and personal property legislation in the Province or Territory where the Goods
are located as such place of location is indicated on Appendix A. The parties
agree that all claims and disputes arising out of or in connection with this
Agreement shall be adjudicated exclusively in the Courts of the Province or
Territory where the Goods are located as such place of Goods is indicated on
Appendix A. Buyer consents to the jurisdiction of the Courts of the Province or
Territory where the Goods are located as such place of Goods is indicated on
Appendix A.
27. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
28. The parties have requested that this Agreement and its related
documents be drawn up in English. Les parties ont exige que la present
convention et les document s`y rattachant soient rediges en anglais.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date
first written above.
SELLER BUYER
ROSY BLUE HONGKONG LTD. XXXXX XXXXX & SONS INC.
Per: Per:
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APPENDIX A
TO THE CONDITIONAL SALE AGREEMENT DATED AUGUST 15TH, 2002,
BETWEEN ROSY BLUE HONGKONG LTD. AND XXXXX XXXXX & SONS INC.
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DESCRIPTION OF GOODS | PRICE PER ITEMS | LOCATION OF GOODS
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ROSY BLUE HONGKONG LTD. XXXXX XXXXX & SONS INC.
Per: Per:
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Dated: Dated:
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