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EXH 10.7
Xx. Xxxx Xxxxxxxx
D.I.Y. Home Warehouse, Inc.
0000 Xxxxx Xxxx, Xxxxx 000 June 11, 1999
Xxxxxxxxx, Xxxx 00000
Dear Xxxx:
Upon execution by D.I.Y. Home Warehouse, Inc., having a principle place
of business located at 0000 Xxxxx Xxxx, Xxxxxx Xxxx, Xxxx 00000 ("Merchant"),
this letter shall serve as the agreement (the "Agreement") between Merchant and
Schottenstein Xxxxxxxxx Capital Group, LLC having a principle place of business
located at 0000 Xxxxx Xxxx, Xxxxxxxx, Xxxx 00000 (the "Agent") for Agent to act
as Merchant's sole and exclusive agent to sell all of the merchandise (the
"Merchandise") in Merchant's store listed on Schedule A attached (the "Store")
by means of a "Store Closing," and or "Total Liquidation," sale (the "Sale"). In
consideration of the mutual promises and covenants contained herein and other
good and valuable consideration, Merchant and Agent agree as follows:
1. AGENCY. Merchant appoints Agent its exclusive agent for the purpose of
conducting the Sale of the Merchandise located at the Store. Agent shall be
responsible, with Merchant's assistance, for securing any required licenses and
permits and complying with any "going-out-of-business" laws, rules, ordinances
and regulations. Merchant shall pay any fees and expenses incurred in connection
therewith and Agent will post any bonds required in connection with such
licenses and permits.
2. INVENTORY. As soon as practicable after Merchant's acceptance of this
Agreement, Merchant shall cause to be taken a "retail dollar" and or SKU
physical inventory of the Merchandise in the Store (the "Inventory Count"). The
date that the Inventory Count is taken in each Store shall be referred to as to
each Store as the "Inventory Date". The Inventory Count shall be taken by RGIS
or another independent inventory service mutually designated by Merchant and
Agent (the "Inventory Service") the cost of which shall be shared equally by
Merchant and Agent. Each Store shall be closed during the Inventory Count and
during the Inventory Count, neither Merchant nor
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Agent shall enter such Store without each having a representative present,
except in the case of an emergency. Merchant and Agent, will provide one or more
representative at the store during the Inventory Count. The Inventory Count
shall be taken on the basis of the lowest ticketed price of each item of
Merchandise except for (i) out of season inventory which shall be valued at
fifty (50%) percent of the lowest ticketed price and (ii) damaged, display and
clearance Merchandise price for which Merchant and Agent shall agree upon a
price. Merchant shall remove from the Sale any item of damaged, clearance, or
display Merchandise for which a price cannot be agreed upon as well as
Merchandise as to which Merchant and Agent cannot agree upon the seasonality.
Notwithstanding any of the above, the reduction in the Retail Value, resulting
from Merchant and Agent's pricing of damaged, display and clearance Merchandise,
shall not exceed Fifty Thousand Dollars ($50,000) per Store.
3. RETAIL VALUE. The term "Retail Value" herein shall mean the aggregate of the
item values of the respective items of all the Merchandise. Merchandise shall
include all goods owned by Merchant and located at the Store on the Inventory
Date except: (i) goods which Merchant shall have reasonably shown to belong to
sublessees, licensees or concessionaires of Merchant or to have been placed in
the Store on consignment; and (ii) furniture, fixtures, equipment and
improvements to realty located in the Store. The ticketed price of any item of
Merchandise shall not include any sales or gross receipts taxes. If any item of
Merchandise has more than one ticket, the lower retail price shall prevail
unless Merchant establishes that such Merchandise was inadvertently priced
incorrectly. Merchandise arriving at the Store following the Start Date ("On
Order Merchandise"), shall be valued at the lowest ticketed price less the
discount then prevailing in the Store.
4. SALE TERM. The Sale shall start no later than June 18, 1999 (the "Start
Date"), and shall end no later than the close of business at each Store,
approximately ten weeks thereafter, on August 27, 1999, unless extended by
agreement of the parties (the "End Date"). Agent may terminate the Sale prior to
the End Date at any Store in its reasonable discretion. At the conclusion of the
Sale, Agent agrees to leave the Store in "broom clean" condition, with all
Merchandise (regardless of the condition) being removed by Agent, except for
removal of furniture, fixtures,
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equipment and remaining Supplies (as defined in Section 10 hereof) and to leave
the Store in the same condition as on the Start Date, ordinary wear and tear
excepted.
5. GUARANTEED PAYMENT. Agent guarantees that Merchant shall receive an amount
equal to fifty one and one-half percent (51.5%) of the Retail Value (the
"Guaranteed Payment") of the Merchandise. In the event that the aggregate value
of all the Merchandise shall be less than Three Million Two Hundred Fifty
Thousand Dollars ($3,250,000), the Guaranteed Payment shall be reduced in
accordance with Schedule B. The Guaranteed Payment will be reduced pro rata for
increments or partial increments in accordance with Schedule B. Moreover, in the
event that Agent cannot start the Sale until (i) after June 18th but before June
25th, the Guaranteed Payment shall be reduced by one half of one percent (.5%)
(e.g. from 51.5% to 51%), (ii) after June 25th but before July 2, the Guaranteed
Payment shall be reduced by one percent (1%) (e.g. from 51.5% to 50.5%), and
(iii) after July 2 but before July 9, the Guaranteed Payment shall be reduced by
one and one half percent (1.5%) (e.g. 51.5% to 50.0%). The parties agree to
negotiate in good faith any further reduction in the Guaranteed Payment in the
event Agent is prohibited from starting the Sale until after July 9th.
In addition to the Guaranteed Payment, Merchant will be entitled to
fifty percent (50%) of the Net Profit of the Sale. For purposes of this
Agreement, Net Profit of the Sale is the gross proceeds of the sale after
payment of the Guaranteed Payment, Expenses of Sale and payment to Agent of an
amount equal to two percent (2%) of the Retail Value.
Merchant shall retain all amounts collected during the Sale, as well as
any insurance proceeds resulting from the loss of any Merchandise subject to
this Agreement (the "Proceeds"), out of which it shall pay Expenses of Sale, as
set forth below, and satisfy the Guaranteed Payment. After satisfaction of the
Guaranteed Payment and payment of Expenses of Sale, and subject to the sharing
of the Net Profit of the Sale set forth above, Agent shall be entitled to
receive its share of the Proceeds as its commission herein. As security for the
Guaranteed Payment and Expenses of Sale, Agent will deliver to Merchant an
irrevocable Letter of Credit, in a form attached hereto as Schedule C from Xxxxx
Fargo Bank in the amount of$1,250,000 having an expiration date of not earlier
than
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September 30, 1999. In the event, following the End Date, that Proceeds from the
Sale are insufficient to satisfy the Guaranteed Amount and Expenses of Sale,
Merchant shall be entitled to draw down upon the Letter of Credit for the amount
of the deficiency.
6. SALE CONDUCT. Agent shall conduct the Sale in the name of Merchant in full
and complete compliance with applicable laws, rules, or ordinances in the manner
in which Agent in its discretion reasonably deems fit, including, but not
limited to, advertising, pricing of Merchandise, number and type of personnel,
Store hours, Store maintenance and security. Agent may advertise the Sale as a
Store Closing, or Total Liquidation or similar type sale in accordance with
applicable law and applicable leasehold agreements. Notwithstanding the
Guaranteed Payment, Agent acknowledges that Merchant will after the End Date
have a significant number of stores in Ohio which will continue to operate under
Merchant's name. As a result, Agent will conduct the Sale using its best efforts
and in such a manner as to minimize any bad publicity or loss of goodwill
arising from the conduct of the Sale. Agent may use Merchant's employees to the
extent Agent deems feasible, and Agent may select and schedule the number and
type of Merchant's employees required for the Sale, however, Merchant's
employees shall at all times remain employees of Merchant. On and after the
Start Date, Merchant shall pay, as an Expense of Sale, as hereinafter defined,
the gross wage payroll paid to Merchant's employees used in the Store by the
Agent during the Sale plus (a) the related payroll taxes (including FICA and
Unemployment), (b) Worker's Compensation and (c) health care insurance benefits
(subsections (a), (b) and (c) collectively, the "Benefits") not in excess of
fifteen and 57/100 percent (15.57%) of said gross payroll (the "Fringe Benefit
Cap"). Any amounts in excess of the Fringe Benefit Cap shall be at Merchant's
Expense, as hereinafter defined.
Merchant and Agent acknowledge and agree, that (i) nothing herein nor
any of Agent's actions taken in respect hereto shall be deemed to constitute an
assumption by Agent of any of Merchant's obligations relating to any of
Merchant's employees including, without limitation, vacation, pension,
withdrawal, severance pay, vacation pay, sick leave or pay, maternity leave or
pay, Worker Adjustment Retraining Act ("WARN") claims (if any) and other
termination type
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claims and obligations; and (ii) Merchant hereby indemnifies Agent in respect to
any claims asserted by any of Merchant's employees, except as to claims arising
out of the negligence or wrongful act or omission of Agent, and Merchant is
solely and specifically responsible for all of Merchant's obligations under any
collective bargaining agreements and any purported oral service contracts.
7. EXPENSES OF SALE. Merchant shall collect all Proceeds out of which shall be
paid all "Expenses of Sale." In the event that Proceeds are not sufficient to
pay such Expenses of Sale, Merchant shall be entitled to draw down upon the
Letter of Credit, as set forth in Paragraph 6, for the amount of the deficiency
after the End Date. Expenses of Sale shall be (i) the actual gross wage payroll
paid to Merchant's employees used in the Store by the Agent during the Sale plus
the cost of the Benefits for such employees not to exceed the Fringe Benefit
Cap; (ii) advertising expense; (iii) signage for the Sale; (iv) security in the
Store; (v) bank card fees and charge backs; (vi) telephone charges for the Store
in excess of base charges; (vii) Agent's supervision expenses; (viii) any other
expenses directly attributable to the Sale authorized by Agent and (ix)
occupancy costs on a per diem per Store basis as per attached Schedule D. Agent
shall xxxx Xxxxxxxx weekly for any Expenses of Sale paid by Agent which shall be
promptly paid from Proceeds collected by Merchant.
8. MERCHANT'S EXPENSES. During the Sale, Merchant shall be responsible for
payment of the following items none of which shall be deemed an Expense of Sale:
(i) all occupancy costs not included in Schedule D; (ii) any Benefits in excess
of the Fringe Benefit Cap; (iii) all other employee benefits, including but not
limited to union dues, termination pay, pension benefits, severance pay,
vacation pay, sick leave or pay, maternity leave or pay and WARN claims (if
any); (iv) major maintenance; and (v) costs not directly attributable to the
Sale.
9. TAXES. Merchant shall collect all sales, excise and gross receipts taxes (and
not income taxes) (collectively the "Sales Taxes") payable to any taxing
authority having jurisdiction, which taxes shall be added to the sales price and
be paid by the customer at the time Merchandise is purchased. Merchant shall
indemnify and hold Agent harmless from and against any and all costs (including,
but not limited to, reasonable attorneys' fees), assessments, fines or penalties
which
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Agent may incur as a direct or indirect consequence of the failure by Merchant
to pay Sales Taxes to the proper taxing authorities and/or the failure by
Merchant to promptly file with taxing authorities any and all returns, reports
and other documents required by applicable law to be filed or delivered to such
taxing authorities.
10. SUPPLIES. Agent shall have the right to use in connection with the Sale,
without any charge, all signs and promotional materials, furniture, equipment,
fixtures and supplies, including, but not limited to, bags, boxes, twine, paper
and similar sales materials ("Supplies"), located at the Store on the Start
Date. Agent shall have no obligation to account to Merchant for any of the
Supplies used during the Sale, but all Supplies remaining in the Store on the
End Date shall be left on the premises and remain Merchant's property. Should
additional Supplies be required in the Store during the Sale, Merchant agrees to
promptly provide such additional Supplies to Agent, if available at Merchant's
cost plus shipping costs, such cost to be an Expense of Sale. Merchant covenants
and warrants that it has not and will not remove any Supplies from the Store in
contemplation of this Agreement.
11. CREDIT CARDS, GIFT CERTIFICATES AND RETURNS. All sales shall be for cash or
upon bank credit cards (excluding private label cards). During the Sale, all
bank credit card sales shall be through Merchant's bank credit card system. All
bank card fees including charge backs in connection with the Sale shall be an
Expense of Sale. Agent will be responsible for any reserves required by
Merchant's bank credit card provider. For fourteen (14) days following the Start
Date, Agent shall accept customer returns of first quality goods purchased prior
to the Start Date. Items accepted for return shall be added to Merchandise for
the purpose of calculating Retail Value, but shall not reduce Proceeds. All
sales shall be advertised, "FINAL," and all sales receipts shall be marked
"FINAL," by Agent. Agent shall accept Merchant's gift certificates during the
Sale. Gift Certificates shall be treated as cash and the value thereof added to
Proceeds. Agent shall, on behalf of Merchant, offer refunds to customers with
goods on layaway. The amounts refunded to layaway customers shall not reduce
Proceeds.
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12. MERCHANT'S WARRANTIES. Merchant hereby warrants and represents:
a. Merchant is a corporation, duly and validly existing and in good
standing under the laws of the State of Ohio. Merchant is and during the Sale
will be authorized and duly qualified as a corporation to do business and is in
good standing in the jurisdiction in which the Store is located.
b. (i) This Agreement and all other documents executed by Merchant in
accordance with this Agreement are the valid and binding obligations of Merchant
enforceable in accordance with their terms; (ii) Merchant has taken all
necessary corporate action required to authorize the execution, performance and
delivery of this Agreement and the related documents; (iii) no court order or
decree of any federal, state or local government authority, or other action
known to Merchant, is in effect which will or may prevent or impair consummation
of the transactions contemplated by this Agreement; and (iv) the consent of any
person or entity, including any landlord, is not required with respect to the
transaction contemplated herein;
c. Except for the lien of National City Commercial Finance, Merchant
owns and will own at the Start Date and during the Sale good and marketable
title to all of the Merchandise (together with the proceeds and accounts
receivable arising therefrom), free and clear of all liens, mortgages, pledges,
charges, encumbrances, equities or claims whatsoever. Agent shall be entitled to
retain all proceeds, subject to section 5, free and clear of all liens,
mortgages, pledges, charges, encumbrances, equities or claims whatsoever.
d. Merchant shall not ship goods into the Store without Agent's
consent, which consent will not be unreasonably withheld, nor raise any prices
of the Merchandise in contemplation of the Sale. The mix of Merchandise in the
Store shall be comparable to that found in the Merchant's ongoing stores.
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e. No actions or proceedings have been instituted against Merchant or
have been threatened, preventing or which may prevent the consummation of the
transactions contemplated by this Agreement. Merchant is reasonably current on
all accounts payable, due and owing to parties whose cooperation is necessary
for operation of the Sale, including but not limited to landlords, newspapers
and utilities.
f. No notice of terminable default under the leases, licenses or
subleases relating to the Store has been noticed thereunder, and subleases do
not prohibit the transactions under this Agreement or of the Sale contemplated
herein.
g. Merchant represents and warrants that it will not prior to or during
the Sale grant any lien or encumbrance on the Merchandise or the Proceeds.
h. There is no outstanding order, judgment, injunction award or decree
of any court, governmental or regulatory body or arbitration tribunal by which
the Merchant or the Merchandise is bound which would materially interfere with
the transactions herein, and as of the date of execution herein there is no
action, suit, claim, legal, administrative or arbitral proceedings (whether or
not the defense thereof or liabilities in respect thereof are covered by
insurance) against the Merchant or the Merchandise which would, if determined
adversely to the Merchant, be likely to have a material adverse effect upon the
transactions contemplated hereby, nor to the best of Merchant's knowledge are
there any facts which are likely to give rise to any such action, suit, claim or
legal, administrative or arbitral proceeding or investigation.
i. The Retail Value of the Merchandise shall be not less than Three
Million Dollars ($3,000,000).
j. Agent shall be permitted to pass on all applicable manufacturers
warranties to customers.
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k. Merchant represents and warrants that it has not raised any prices
in contemplation of the Inventory Count and that all pricing, including pricing
of On-Order merchandise and merchandise from the distribution center will be
done in accordance with Merchant's historic practices.
l. The Store will have been operated up through the Start Date in a
manner consistent with Merchant's ongoing stores.
m. No point of sale activity shall have occurred outside the ordinary
course of business.
n. Merchandise offered for Sale by Agent with a discount of no lower
than ten percent (10%) shall be lower in price then the same Merchandise
advertised in Merchant's circulars scheduled to run on June 13th and June 20th.
In the event of any such discrepancy herein, Agent shall be entitled to offer
customers the lower of the two prices. Agent's sole remedy shall be a credit
from Merchant for the amount of the discrepancy.
13. AGENT'S WARRANTIES. Agent hereby warrants and represents:
a. Agent is a limited liability corporation, duly and validly existing
and in good standing under the laws of the State of Delaware. Agent is, and
during the Sale will be, authorized and duly qualified to do business in each
jurisdiction where the failure to so qualify would have a material adverse
effect on Agent's ability to perform hereunder.
b. (i) This Agreement and all other documents executed by Agent in
accordance with this Agreement are the valid and binding obligations of Agent
enforceable in accordance with their terms; (ii) Agent has taken all necessary
action required to authorize the execution, performance and delivery of this
Agreement and the related documents; (iii) no court order or decree of any
federal, state or local government authority, or other action known to Agent, is
in effect which will
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or may prevent or impair consummation of the transactions contemplated by this
Agreement; and (iv) the consent of any person or entity, is not required with
respect to the transactions contemplated herein.
c. There is no outstanding order, judgment, injunction award or decree
of any court, governmental or regulatory body or arbitration tribunal by which
the Agent is bound which would materially interfere with the transactions
herein, and there shall be no action, suit, claim, legal, administrative or
arbitral proceedings (whether or not the defense thereof or liabilities in
respect thereof are covered by insurance) against the Agent which would, if
determined adversely to the Agent, be likely to.have a material adverse effect
upon the transactions contemplated hereby, nor are there any facts which are
likely to give rise to any such action, suit, claim or legal, administrative or
arbitral proceeding or investigation.
14. NON COMPETE. During the Sale, neither Merchant nor any affiliate of Merchant
shall run a store closing, liquidation or similar sale in competition with the
Sale at any store trading under the D.I.Y. Home Warehouse name within the
advertising area of the Store without the prior written approval of Agent.
15. INSURANCE. a. Merchant at its expense shall continue until the End Date, in
such amounts as Merchant currently has in effect, all of Merchant's liability
insurance policies, including but not limited to, comprehensive public liability
policies covering injuries to persons and property in or in connection with
Merchant's operation of the Store and, from and after the acceptance by Merchant
of this Agreement, shall cause Agent to be named as additional insured, as its
interests may appear, with respect to all such policies. On or before the Start
Date, Merchant shall deliver to Agent certificates evidencing such insurance
policies, setting forth the duration thereof and the naming of Agent as an
additional insured, as its interests may appear, in accordance with the
provisions hereof, all in form reasonably satisfactory to Agent. Merchant shall
be responsible for the payment of all deductibles, retentions or self-insured
amounts under such policies except in the
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event liability arises by reason of the negligence or wrongful act or omission
of Agent or Agent's independent contractors.
b. Merchant at its expense shall provide fire, theft and extended
coverage casualty insurance on the Merchandise in a total amount at least equal
to the retail value thereof. From and after the Start Date, said coverage will
contain a loss payable clause in favor of Merchant's lender and Agent, as their
interests may appear. In the event of a loss to the Merchandise included in the
Inventory Count occurring on or after the Start Date, the proceeds of such
insurance attributable to the Merchandise shall be paid to Agent and such
proceeds shall be included as part of the Proceeds. On or before the Start Date,
Merchant shall deliver to Agent certificates evidencing such insurance policies;
setting forth the duration thereof and the naming of Agent as a loss payee in
accordance with the provisions hereof, all in form reasonably acceptable to
Agent. Merchant shall be responsible for the payment of all deductibles or
self-insured amounts under such policies except in the event liability arises by
reason of the negligence or wrongful act or omission of Agent or Agent's
independent contractors.
c. Merchant shall at all times during the Sale maintain in full force
and effect Worker's Compensation Insurance in compliance with all statutory
requirements.
d. During the performance and length of this Agreement, Agent will
maintain workers compensation, commercial general liability and automobile
liability insurance and will name Merchant as an additional insured on all such
policies.
16. PEACEFUL POSSESSION. Merchant agrees during the Sale to grant and provide
Agent peaceful and quiet possession of the Store and to take no action relating
to the Store which would disturb such possession, including, without limitation,
any action to modify or terminate any existing ADT or similar security system or
cash register maintenance agreements or remove any of the furniture, fixtures or
equipment from the Store. Merchant agrees to maintain in operation at the
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expense of Merchant for the benefit of Agent (i) the point of sale equipment in
the Store and (ii) the management information Systems.
17. INDEMNIFICATION. Agent and Merchant each agree to indemnify and defend and
hold harmless the other from any and all demands, claims, actions or causes of
action, assessments, losses, damages, liabilities, costs and expenses,
including, without limitation, interest, penalties and reasonable attorneys'
fees, costs and expenses, asserted against, resulting to or imposed upon
Merchant or Agent, directly or indirectly, by reason of or resulting from
either's (i) material breach or failure to comply with any of the agreements,
covenants, representations or warranties contained in this Agreement, or (ii)
any negligent or wrongful act or omission of either or its employees.
18. DEFAULT. a. For the purpose of this Agreement, an "Event of Default" shall
be deemed to have occurred:
(1) upon the failure by Merchant or Agent to perform promptly and fully
any material obligation or covenant hereunder or any material obligation or
covenant in any document delivered pursuant hereto or any collateral agreement
to this Agreement after having received five (5) days' prior written notice,
except in the case of a nonmonetary default which is incapable of being cured
within such notice period and diligently proceeds to cure said default and (a)
the party in default has taken all steps necessary to commence to cure such
default within such notice period and (b) such failure to cure, in the case of a
default by Merchant, will not adversely affect, in any material way, Agent's
ability to conduct the Sale in the manner contemplated herein;
(2) if any of the warranties or representations made by Merchant or
Agent herein proves to be untrue or false in a material way; or
(3) if any breach of this Agreement by Merchant results in the Agent
being unable to conduct or complete the Sale at any Store as contemplated
herein.
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b. In the event of an interruption of the Sale and/or occurrence of an
Event of Default resulting from any act or omission of Merchant which prevents
Agent from conducting or completing the Sale at any Store as provided by this
Agreement, Agent may, at its option, either (i) proceed with the Sale at the
Store location(s) affected or (ii) require Merchant, at Merchant's expense, to
move the Merchandise to another reasonably proximate Store designated by Agent,
or (iii) notify Merchant as to the termination of the Sale as to the particular
Store location, in which event, Agent shall be made whole and (i) Agent shall be
reimbursed for all its out of pocket expenses referable to such Store, (ii)
Merchant shall be entitled to retain all Proceeds at such Store prior to the
interruption or Event of Default as well as any remaining Merchandise. Merchant
acknowledges that Agent would be irreparably injured in the event of any failure
by Merchant to promptly and fully perform any obligation hereunder if such
failure directly or indirectly interferes with the conduct by Agent of the Sale,
and hereby consents, in the event of any such failure or in the event that any
such failure is threatened or appears imminent, to the entry of an injunction
specifically enforcing the terms of this Agreement.
c. No right or remedy granted in or pursuant to this Agreement shall be
exclusive of any other right or remedy so granted or otherwise available. Every
such right or remedy shall be cumulative and shall be in addition to every other
right or remedy so granted or existing at law or in equity or by statute, or
created, granted or existing pursuant to any agreement to which Agent and/or
Merchant is or may hereafter become a party.
19. JURISDICTION. This Agreement shall be governed and construed in accordance
with the laws of the State of Ohio without regard to the conflicts of laws
principles thereof.
20. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties with respect to these transactions and supersedes and cancels all prior
agreements including, but not limited to all proposals, letters of intent or
representations, written or oral, with respect thereto.
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21. MODIFICATIONS. This Agreement may not be modified except in a writing
executed by each of the parties.
22. ASSIGNMENT. Except as specifically provided in this Section, or upon written
consent of the parties hereto, this Agreement shall not inure to the benefit of,
or, shall not be assignable to, any person or entity other than Merchant and
Agent. All of the terms and provisions of this Agreement shall be binding upon,
inure to the benefit of, and be enforceable by the successors in interest of the
respective parties hereto.
23. NOTICES. All notices under this Agreement shall be sent by hand, by
recognized overnight courier service or by certified mail, return receipt
requested to: (a) Merchant at the address listed on the first page hereof, to
the attention of Xx. Xxxxxxxx Xxxxxxxx , President, with a copy to Xx. Xxxxxx X.
Xxxxxxxx, Xx., Cavitch, Familo, Xxxxxx and Xxxxxxx Co. L.P.A, 00xx Xxxxx, Xxxx
Xxxx Xxxxxxxx, Xxxxxxxxx, Xxxx 00000; (b) Agent, at the address listed on the
first page hereof to the attention of Xxxxx Xxxxxxxxx, Esq. All notices
delivered hereunder will be effective upon receipt.
24. CONFIDENTIAL NATURE OF TRANSACTION. The parties agree to keep the existence
of this transaction confidential until Merchant completes the transfer of its
properties in North Canton, Mansfield and Akron (the "Properties"). Agent agrees
to notify all employees and/or agents that have or will have knowledge of this
transaction of the confidential nature of this transaction. The parties agree
that they will jointly approve any news release(s) regarding this transaction.
Agent acknowledges that Merchant may suffer significant damages if the existence
of this transaction becomes known to customers and/or employees.
25. CONTINGENCIES. The parties acknowledge that this transaction is contingent
upon the transfer of the Properties by Merchant and if the Properties are not
transferred by June 30, 1999 then this Agreement will be null and void.
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26. COUNTERPARTS. 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. Such execution may be by facsimile. Any
party signing via facsimile shall forward an original hard copy of such
signature to the other party, but the failure to send said original signature
shall not affect the enforceability of this Agreement against such party, the
parties hereto agreeing that a facsimile signature may be treated as an original
signature hereunder.
Please acknowledge your acceptance hereof by signing a copy and returning it to
us.
Very truly yours,
SCHOTTENSTEIN XXXXXXXXX CAPITAL GROUP, LLC
By: /s/ Xxxxxx Xxxxxxxx 6/16/99
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Its: Asst Corp. Controller
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ACCEPTED THIS 16 DAY OF June, 1999.
D.I.Y. Home Warehouse, Inc.
By: /s/ Xxxx X Xxxxxxxx
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Printed Name: Xxxx X Xxxxxxxx
----------------------------
Title: Vice Pres CFO
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Schedules
Schedule A - Store
Schedule B - Stepdown Schedule, Guaranteed Payment
Schedule C - Form of Letter of Credit
Schedule D - Per Diem Occupancy
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BOARDMAN STORE
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000 Xxxxxxxx-Xxxxxx Xxxx
Xxxxxxxx, Xxxx
SCHEDULE A
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Sheet 1
DIY HOME WAREHOUSE, INC.
SCHEDULE 1
SUGGESTED STEP DOWN SCHEDULE
Inventory Level XXXX
Adj
Cum
-----------------------------------------
3,500,000 100% 0.00%
3,526,678 101% 0.00%
3,476.678 99% 0.00%
3,426,678 98% 0.00%
3,376,678 96% 0.00%
3,326,678 95% 0.00%
3,276,678 94% 0.00%
3,250,000 93% 0.00%
3,200,000 91% 0.20%
3,150,000 90% 0.40%
3,100,000 89% 0.60%
3,050.000 87% 0.80%
3,000,000 86% 1.00%
SCHEDULE B
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LETTER OF CREDIT
GUARANTEED PAYMENT
IRREVOCABLE LETTER OF CREDIT
Beneficiary Applicant
----------- ---------
Schottenstein Xxxxxxxxx Capital Group, LLC
0000 Xxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Amount
------
USD____________(U.S. Dollars)
Expiry: September 30, 1999
Dear Sir(s):
We hereby issue in your favor our Irrevocable Letter of in the
amount of _______U.S. dollars.
We hereby irrevocably authorize you to draw on us, in an aggregate
amount not to exceed the amount of this Letter of Credit, by your draft or
drafts, payable at sight, drawn on Xxxxx Fargo Bank bearing the clause: "Drawn
under Xxxxx Fargo Bank Letter of Credit No..------" and accompanied by your
certificate appropriately completed and signed by you in the form of the
attached Annex A
Special Conditions:
1. Xxxxx Fargo Bank is not responsible for any calculations
confirming the proper amount of the draft pursuant to the
attached Annex A, Certificate for Drawing.
SCHEDULE C
20
2. This original Letter of Credit must be returned with any
drawing hereunder which results in the full or partial payment
of the amount of this Letter of Credit.
3. Upon delivery to us of a Reduction Certificate, the amount of
this Letter of Credit shall be reduced by the amount set forth
in such Reduction Certificate.
4. Upon delivery to us of a certificate from you in the form of
Annex C, the expiry date shall be the date set forth in such
certificate, which in no event shall be later than September
30, 1999.
We certify that your draft drawn and in conformity with the terms of
this Letter of Credit will be duly honored on presentation after receipt if
presented to us on or before the expiry date.
Payment upon the draft shall be made by us to you in immediately available funds
by wire transfer to your account in the United States specified for payment in
the draft presented to us at the earliest opportunity.
We hereby undertake that we will not modify, revoke or terminate this
Letter of Credit without your written consent.
Yours Faithfully,
Xxxxx Fargo Bank
--------------------
Authorized Signature
ANNEX A
CERTIFICATE FOR DRAWING
21
The undersigned, being the President of, hereby certifies with reference to
Xxxxx Fargo, Letter of Credit No. ___________ that:
1. The amount of the sight draft which accompanies this drawing
certificate is $________
2. ______________has determined that the Proceeds are insufficient to
satisfy the Guaranteed Payment, Expenses of Sale as those terms are
defined in the Agreement, dated (the "Agreement"), by and between
___________ and Schottenstein Xxxxxxxxx Capital Group, LLC.
3. ___________default under the terms of the Agreement.
4. ________________ three (3) business days notice to the Agent of its
intent to submit the sight draft which accompanies this certificate.
5. Capitalized terms used herein but not defined shall have the meanings
set forth in the Agreement.
IN WITNESS WHEREOF,________ d this Certificate for Drawing to be
executed and delivered as of the _______day of ___________ 1999.
By:
---------------------------
Name:
--------------------------
President
Sworn to before me this:
____day of _________, 1999.
--------------------------------
Notary Public
22
DIY
OCCUPANCY COSTS
BOARDMAN
Total Average Avg/
1998 1997 Week
----------------------------------------------------------------------------------
Rent $ 525,740 $ 519,800 $1,045,340 $ 522,670 $ 10,051
Mortgate Interest $ -- $ -- $ --
Disposal $ 10,118 $ 11,912 $ 22,030 $ 11,015 $ 212
Real Estate Taxes $ 63,489 $ 66,199 $ 129,688 $ 64,844 $ 1,247
R & M premise $ 11,034 $ 15,911 $ 27,945 $ 13,973 $ 269
Utilities $ 135,667 $ 134,164 $ 259,831 $ 134,916 $ 2,595
Equipment Rental $ 34,939 $ 38,117 $ 73,056 $ 36,528 $ 702
Insurance $ 40,607 $ 50,804 $ 91,411 $ 45,706 $ 879
Outside Service $ 21,239 $ 24,807 $ 46,046 $ 23,023 $ 443
R & M Equipment $ 15,111 $ 19,675 $ 34,786 $ 17,393 $ 334
Telephone $ 27,436 $ 27,601 $ 55,037 $ 27,519 $ 529
Loss Prevention $ 7,606 $ 15,426 $ 23,032 $ 11,516 $ 221
----------------------------------------------------------------------------------
Total Occupancy $ 892,986 $ 925,215 $1,818,202 $ 909,101 $ 17,483
==================================================================================
SCHEDULE D
