PURCHASE AGREEMENT
THIS AGREEMENT, made this 4th of August, 1997, by and
between TRIOMPHE FOURRURES INCORPORATED, a subsidiary of
REVILLON, INCORPORATED ("Revillon"), a New York Corporation
(hereinafter called "Seller") and XXXXX, INC., a Delaware
Corporation (hereinafter called "Xxxxx").
WITNESSETH:
WHEREAS, Seller now owns and operates that certain retail
fur business operating certain fur departments in Bloomingdale's
department stores (hereinafter called "said fur business"), and
WHEREAS, Seller is desirous of selling to Xxxxx its entire
fur business including without limitation the fur inventory, the
store and trade fixtures, furniture, machinery, supplies,
computers, equipment, uncompleted customer orders, fur storage
and insurance, dead storage, cleaning and glazing, repairs and
alterations, customers lists for both new sales and storage, the
goodwill and trade names appertaining thereto all comprising said
fur business, and
WHEREAS, Xxxxx is willing to purchase said fur business upon
the terms, covenants and conditions hereinafter stated,
NOW THEREFORE, in consideration of the premises and of the
mutual covenants and agreements of the parties hereof, it is
hereby covenanted and agreed as follows:
1. Seller agrees to sell and Xxxxx agrees to purchase,
subject to the terms, covenants, conditions and agreement
hereinafter provided, all right, title and interest of Seller in
the following described personal property comprising said fur
business of Seller in Bloomingdale's ("Bloomingdale's"):
(a) All fur inventories (excluding, however, inventory
checked out to certain of Seller's officers) whether or not
detailed on Schedule I attached hereto determined pursuant to
physical inventory taken at closing. All storage and service
inventories detailed on Schedule I.
(b) All store and trade fixtures, furniture,
machinery, supplies and computers located in Seller's fur
departments used in operating said fur business and all other
equipment of every kind and character located in Seller's fur
departments used in said fur business, whether or not detailed on
Schedule II hereto attached.
(c) Seller's interest in any leasehold improvements in
the premises which Seller operates under its License Agreement
with Bloomingdale's.
(d) All licenses which by law are transferable.
(e) Seller's interest in any storage agreements with
Central Storage, RAM, Kazis, District, CalBest and Leather Rich
fur storage company upon the same terms and conditions as
contained in such agreements. Each storage company to provide a
certified list of garments in their possession (see Schedule I)
and to be solely responsible for any omissions from such schedule
or for any garment listed in such schedule which may be lost or
damaged before or after the closing hereunder, provided, however
in the event Seller shall have received a customer's garment, but
did not deliver same to any of the above storage companies, then
and in such event, Seller shall be responsible for any such
garment.
(f) The assets of the entire fur business located in
Seller's fur departments as a going concern as shown on Seller's
balance sheet as of May 31, 1997, together with all customers
lists (current and prospective), telephone numbers, goodwill and
the assignment of Seller's and Revillon's right, title and
interest in the trade names and trademarks used in said fur
business including but not limited to the name "Maximilian" for
furs and fur products throughout the world and as registered in
countries which are listed in the Schedule of Trademarks attached
hereto as Schedule VIII, subject to the claims, restrictions,
exceptions and limitations set forth in the Schedule of
Trademarks. Seller also transfers to Xxxxx apart from the
trademarks or trade names, above listed, whatever right, title,
and interest Seller may have acquired throughout the world, by
use, registration or otherwise, in and to whatever herein
unlisted registered or herein unlisted unregistered trademarks
and/or trade names owned by Seller and used in the conduct of
Seller's business (hereinafter collectively "trademarks") and any
and all goodwill associated therewith or represented thereby.
The assets being sold hereunder shall nevertheless
exclude the following: xxxxx cash in the said fur departments;
accounts receivable; tangible property located at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx; prepaid expenses; and company-wide
software and systems.
All assets being sold hereunder shall be purchased
"AS IS, WHERE IS," without representations or warranties by
Seller, express or implied, except those representations and
warranties expressly set forth in this Agreement.
2. The purchase price for the foregoing assets shall be as
follows:
(a) For the fur inventory described in and included
under Paragraph 1 (a) hereof a sum equal to the appraised value
thereof according to the inventory thereof.
(b) For the store and trade fixtures, furniture,
machinery, supplies, and computers used in operating said fur
business and all equipment as described in Paragraph 1 (b) hereof
and the agreements and licenses as described in Paragraphs 1(c),
1(d) and 1(e) hereof, the sum of $145,000.00, which shall be paid
on December 30, 1999.
(c) For all names and trademarks including the
Maximilian name and trademark, the sum of $1,693,484.00 payable
to Revillon.
(d) For the entire retail fur business as a going
concern, together with all customer lists, telephone numbers,
goodwill and trade names of Seller as described in Paragraph 1(f)
hereof, the sum of $500,000.00.
3. (a) Closing hereunder shall take place no later than
August 12, 1997, unless otherwise agreed upon by Seller and
Xxxxx. The closing shall be effective for all purposes as of the
close of business on August 2, 1997, and Xxxxx shall be solely
responsible for all costs, expenses, liabilities and obligations
of the said fur business after the close of business on August 2,
1997, as if the closing had taken place on that date and time.
In the event Closing does not occur by August 12, 1997, and is
not extended by agreement of the parties, this Agreement shall
immediately terminate. In no event shall the Confidentiality
Agreement between the parties terminate.
(b) Upon closing the following procedure shall be
adopted:
(i) Seller shall forthwith deliver possession to
Xxxxx of the fur inventories and of said fur business and keys
thereto, trade fixtures, furniture, machinery, supplies,
computers, equipment, uncompleted customer orders, fur storage,
cleaning and glazing, repairs and alterations and customer lists
described in Paragraph 1 hereof.
(ii) Seller shall deliver to Xxxxx good and
sufficient instruments, in form and substance reasonably
satisfactory to Xxxxx, conveying and assigning to Xxxxx of all of
Seller's right, title and interest in and to the assets of the
said fur business and (with Revillon) name Maximilian listed in
Paragraph 1 free of encumbrances except as set forth in Section 1
and Schedule IX hereto annexed.
(iii) Seller shall deliver to Xxxxx certified
copies of Resolutions in form and substance reasonably acceptable
to Xxxxx' General Counsel, of the Board of Directors and
shareholders of Seller whereby the sale of said fur business and
the execution of all documents required hereby to effect same
shall be duly authorized and approved.
(iv) Xxxxx shall deliver to Seller a certified
copy of resolutions in form and substance reasonably acceptable
to Seller's counsel, of the board of directors of Xxxxx whereby
the purchase of said fur business and the execution of all
documents required hereby to effect same shall be duly authorized
and approved.
(v) The parties shall take all other actions
contemplated by this Agreement to occur at closing.
4. The purchase price except as set forth in Paragraphs
2(b) and (c) above, shall be paid by Xxxxx to Seller as follows:
(a) On the closing date Xxxxx shall pay to Seller a
sum equal to thirty percent (30%) of the total purchase price.
(b) The remaining balance will be paid as follows:
(i) Three (3) months after closing, Xxxxx will
pay to Seller ten percent (10%) of the total purchase price.
(ii) Six (6) months after closing, Xxxxx will pay
to Seller ten percent (10%) of the total purchase price.
(iii) Every three (3) months thereafter, Xxxxx
will pay to Seller five percent (5%) of the total purchase price
with the entire balance being due and payable on December 30,
1999.
(c) The sum of $145,000 referred to in Paragraph 2(b)
will be paid on December 30, 1999.
(d) the sum of $1,693,484.00 referred to in Paragraph
2(c) will be paid as follows:
(i) On the closing date Xxxxx shall pay to
Revillon the sum of $508,045.20.
(ii) Three (3) months after closing, Xxxxx will
pay to Revillon $169,348.40.
(iii) Six (6) months after closing, Xxxxx will
pay to Revillon $169,348.40.
(iv) Every three (3) months thereafter, Xxxxx will
pay to Revillon $84,674.20, with the entire balance being due and
payable on December 30, 1999.
(e) The deferred amounts set forth in this Paragraph 4
or any other paragraph under this Agreement will be subject to
acceleration at the option of Seller and Revillon should Xxxxx
default in the timely payment of any amounts due hereunder to
Seller or Revillon.
(f) The payments to be made under Paragraphs 4(b), (c)
and (d) shall be covered by Installment Notes in the form
attached as Exhibit I.
(g) The payments set forth in this Paragraph 4 shall,
at Seller's option be paid by cashier's check or wire transfer.
5. Anything to the contrary notwithstanding, provided
Xxxxx shall have complied with the terms and conditions of this
Paragraph 5, it is expressly understood and agreed that Xxxxx may
retain a reasonable and necessary portion of any balance due
hereunder to be applied as necessary to the payment of any loss,
damage, liability or expense which Xxxxx may sustain or incur by
reason of any claim or lien incurred or created by Seller on or
before six (6) months after the closing date, being asserted by a
creditor, lien holder, or governmental agency against Seller,
Xxxxx or the personal property sold hereunder, whether such claim
or lien shall be asserted under the bulk sales act of any state
in which Seller operates or by virtue of any mortgage, sales
contract or other security instrument or for unpaid sales taxes,
license taxes, ad valorem taxes or taxes due the Federal or State
Governments or for any reason whatsoever, arising out of or in
any manner connected with the sale by Seller and the purchase by
Xxxxx of the inventory and other assets described in this
Agreement. If demand for payment is made upon Xxxxx by any
creditor, lien holder or governmental agency for any such claim
or lien, or if Xxxxx shall have reliable knowledge of any such
outstanding claim or lien, then Xxxxx shall be entitled to
withhold an amount sufficient to pay any such claim or lien
beyond the date or dates of payment provided herein until such
claim or lien has been paid or settled by Seller. Xxxxx shall
promptly send copies to Seller of any demands made upon it by any
such creditor, lien holder or governmental agency and any such
outstanding claim or lien.
6. Seller expressly covenants, agrees, represents and
warrants as follows:
(a) That it shall pay or cause to be paid all
indebtedness of Seller and all taxes against Seller, its
business, and the properties included under this Agreement and
that Seller will and does indemnify and hold Xxxxx harmless from
and against any and all claims, demands, causes of action,
liability, loss, cost and expense (together "claims") (except
claims to the extent they are less than $250.00 each and not
exceeding $10,000 in the aggregate and except claims expressly
set forth in this Agreement) of every kind and nature whatsoever
relating to or resulting from said fur business and from
transactions or happenings prior to the closing date and from any
indebtedness or tax liabilities of Seller. Anything in this
paragraph to the contrary notwithstanding, Seller shall have the
right to use due diligence in either contesting or defending any
of the aforesaid matters. Xxxxx shall promptly send copies to
Seller of any notices received by Xxxxx concerning the aforesaid
matters.
(b) Except as expressly set forth in this Agreement,
that it now has or will have upon the date of delivery of
possession thereof to Xxxxx, good, marketable and assignable
title of and to all of the property included under this Agreement
except as to any such property covered by leases or other
arrangements set forth in Schedule III. Except as expressly set
forth in this Agreement, that upon delivery to Xxxxx, same will
be free and clear of all liens, charges, encumbrances whatsoever,
and that the entire right, title and interest therein which
Seller agrees herein to sell, transfer and deliver to Xxxxx,
Seller shall forever warrant and defend.
(c) Seller shall deliver to Xxxxx on or before the
closing date as Schedule IV a list signed and sworn to by Seller
containing the names and business addresses of all creditors of
Seller known by Seller to be owed at least $25,000 as of the date
of Schedule IV and the names of all person who are known by
Seller to assert claims in excess of $1,000 against it as of the
date of Schedule IV, even though such claims are disputed.
(d) That except as otherwise expressly provided in
this Agreement, it is understood and agreed that Xxxxx does not
assume and shall in no event be liable for any obligations,
indebtedness, rents incurred by Seller through the closing date,
or other commitments of Seller or Seller's property, such as
sales taxes, occupation taxes, use taxes, excise taxes, income
taxes, unemployment insurance taxes, social security taxes or any
other taxes of a like or different nature. Xxxxx shall promptly
send copies to Seller of notices received by Xxxxx concerning the
aforesaid matters.
(e) That until the closing, Seller shall continue to
operate said fur business in substantially the same manner,
including the advertising thereof, as heretofore conducted and
shall not remove from the premises any of the items listed in
paragraph 1(b) above except, to the extent necessary, supplies;
that Seller will not hereafter encumber any property covered by
this Agreement or permit any liens to attach thereto; that upon
the date of delivery of possession to Buyer the fur inventory
shall not exceed in quantity the amount of merchandise heretofore
generally carried by Seller at the comparable time of the year.
(f) It will not disclose to anyone except
Bloomingdale's or as otherwise required by law, any of the names
or addresses of past or present customers of Seller and that
Seller will keep all information relative to said customers
confidential, consistent with Seller's usual practices regarding
its own trade secrets and confidential information (See Paragraph
11).
(g) It will not for itself or on behalf of it or in
conjunction with anyone solicit, divert or take any of the
customers or business of Seller (See Paragraph 11). Xxxxx
acknowledges that Revillon, Incorporated, the parent company of
Seller, is a competitor of Xxxxx and may, without Seller being in
breach of this Agreement, compete for the business of customers
of the said fur business, but shall not use any customer list
generated from Maximilian customers at Bloomingdale's.
(h) Except as stated in Schedule V, and the Schedule
of Trademarks, there are no actions, suits or proceedings pending
or, to Seller's knowledge, threatened against or affecting the
assets to be sold or the fur business (including, but not limited
to, product liability, product warranties, patent or trade xxxx
infringement or unfair competition) at law or in equity before
any federal, state or municipal authorities or government
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which involves any claim not fully covered
by insurance (excluding policy deductibles), including, but not
limited to, any audits in process, deficiency assessments, liens
filed or threatened to be filed, or any other proceedings or
investigation whatsoever with any taxing authority, or
governmental authorities not as of the closing date finally
concluded.
7. Any customary proratable items in connection with the
said fur business, including but not limited to those items in
this paragraph, shall be prorated between Seller and Xxxxx as of
the date of Closing. On the closing date, Seller shall transfer
to Xxxxx any transferable licenses and permits which Xxxxx may
elect to take over, such election to be made by July 31, 1997,
the unexpired cost thereof to be prorated between Seller and
Xxxxx.
(a) It is understood and agreed that customer
contracts for storage and insurance shall not be prorated;
(b) Uncompleted contracts for cleaning and glazing,
repairs and alterations will not be prorated;
(c) As and when collected by Xxxxx, Xxxxx shall pay to
Seller the remaining installments due on uncompleted contracts
for remodelings; provided, however, if Seller has not paid its
vendors for work performed on remodelings or other services and
if Seller does not dispute in writing the vendor's claim to such
payment within ten (10) days after notice from Xxxxx to Seller of
such non-payment, then Xxxxx shall pay for such services and
deduct any
amounts so paid from amounts due Seller, either from any
remaining installments due Seller on uncompleted contracts for
remodeling or any payment due under Paragraph 4 herein. Seller
agrees to diligently resolve any such disputed claim or, if not
capable of resolution, to indemnify, defend and hold Xxxxx
harmless from any such claim and any related costs or expenses.
(d) Seller shall pay to Xxxxx the sum of $2.00 per
service garment which was
taken in by Seller in any Bloomingdale's department and handed
out by Xxxxx through December 31, 1997. Xxxxx shall provide
Seller with records showing the number of garments so delivered.
If Seller shall not pay any such amount due and payable to Xxxxx
by the later of February 1, 1998 or ten (10) days after Seller
receives such records from Xxxxx, Xxxxx may deduct such amounts
due hereunder from any payment due Seller.
8. It is understood and agreed that Xxxxx shall, for a
period of three (3) months after the last scheduled payment due
from any such customer, collect, as agent for Seller, any "Short
Deposit Accounts" due to Seller as of the closing date. Xxxxx
agrees to use its best efforts to collect such accounts and shall
render a monthly accounting to Seller of collection during the
preceding month, and shall, at such time, remit the proceeds
thereof to Seller less the license fees thereon and applicable
credit card charges, if any, due to Bloomingdale's. With respect
to any account which is unpaid three (3) months after the last
scheduled payment, customer's payments shall be refunded by Xxxxx
and such amount less license fees shall be due to Xxxxx from
Seller. Any such amounts due to Xxxxx under this paragraph shall
be paid to Xxxxx by Seller within ten (10) days of the date of
notice to Seller accompanied by complete documentation of the
refund by Xxxxx to such customer and Xxxxx' efforts to collect
such account. In the event any such amount is not paid when due,
Xxxxx shall have the right to deduct same from the next payment
due to Seller. Upon payment in full of the purchase price by any
such customer, Seller shall deliver the subject garment to Xxxxx.
9. From and after the date hereof until the closing date
Seller will:
(a) At all reasonable time and intervals, on
reasonable notice, permit Xxxxx' employees and agents to come
upon the premises of Seller and inspect Seller's business,
including without limitation, inventory, books and records and
operation procedures; provided, however, Xxxxx shall not (i)
conduct any such investigation in such a manner as to cause any
interference with Seller's business or (ii) contact any supplier
or customer of Seller without first obtaining Seller's consent.
(b) Permit Xxxxx to do a complete preliminary
inventory count in Seller's presence.
(c) Maintain all books, accounts and records relating
to said fur business in the usual, regular and ordinary manner on
a basis consistent with prior years.
(d) Endeavor to preserve intact Seller's business
organization and the goodwill of Seller's customers.
(e) Permit Xxxxx to interview any of Seller's
employees at reasonable times, on reasonable notice, without
interference with Seller's normal working operation.
10. The obligation of Xxxxx to consummate the transactions
herein contemplated on the closing date is, at the option of
Xxxxx, subject to the following express conditions precedent:
(a) The representations and warranties of Seller
contained in this Agreement were true in all material respects
when made and shall be true at and as of the closing date in all
material respects as though such representations and warranties
had been made at and as of the closing date and Seller shall have
performed all agreements on its part required to be performed and
shall not be in default in any material respect under any of the
provisions of this Agreement at or prior to the closing date.
(b) At the closing date there shall exist no known
violations of any federal, state or local law or regulations
materially affecting the assets to be sold or said fur business,
and no governmental body shall have pending charges of any such
violation.
(c) Xxxxx shall have been furnished a current
certificate from the Secretary of State of New York that Seller
is a corporation duly incorporated and subsisting under the
Business Corporation Law of New York (except for any past due
biennial reports) and current certificates from the Secretaries
of the States of Pennsylvania, Florida, California, New Jersey,
Virginia and Maryland confirming that it is qualified to do
business in those states.
(d) Xxxxx being furnished by the closing date with a
complete list, as Schedule VI of all employees, at the date of
this Agreement showing their present rate of compensation and any
bonuses to be paid to them by Seller for the fiscal year ending
December 31, 1997. The parties agree that any bonuses which are
paid by Xxxxx to Xxxxxx Xxxxxx and Xxxxx Xxxxx for the fiscal
year ending December 31, 1997, will be as set forth in Schedule
VII and prorated on the basis of 5/12 of the amount being paid by
Xxxxx and 7/12 to be paid by Seller, with credit given to Seller
for advances paid to Xxxxx Xxxxx. On or before the closing date,
Seller will advise Xxxxx in writing, as Schedule VII, of any
contracts or other arrangements, whether oral or written, with
any of its employees.
(e) Xxxxx shall have received an opinion as of the
closing date from Xxxxxxxx Xxxxxxx & Xxxxxx LLP, Counsel to
Seller, to the effect that:
(i) Seller is a corporation duly incorporated,
and subsisting under the Business Corporation Law of the State of
New York.
(ii) The execution of this Agreement and
performance of all obligations hereunder by Seller has been duly
authorized by all necessary corporate action and are not in
conflict with any provisions of the Articles of Incorporation or
By-Laws of Seller or of any agreement of which Seller is a party
of which such counsel has actual knowledge.
(f) Xxxxx shall have been furnished with all corporate
and other documents which it may have reasonably requested
hereunder, all certified in such manner as Xxxxx may reasonably
request.
11. The parties hereto acknowledge that its parent
Revillon, Incorporated, a New York Corporation, operates free
standing fur and apparel stores in New York, Chicago, Palm Beach
and Xxxxxxx Hills and a boutique in Saks Jandel in Chevy Chase,
Maryland, under the name Revillon. Xxxxx acknowledges that
Revillon, Incorporated, the parent company of Seller, is a
competitor of Xxxxx and may, without Seller being in breach of
this Agreement, compete for the business of customers of the said
fur business, but shall not use any customer list generated from
Maximilian customers at Bloomingdale's. The parties hereto agree
that they will not say or do anything to detract from the quality
reputation of the Revillon, Maximilian, Bloomingdale's and Xxxxx
names. Seller will not do anything to divert sales from
Bloomingdale's to the Revillon stores where located. The parties
hereto agree that they will not send any correspondence to
customers regarding the sale covered by this Agreement without
prior written approval by the other party.
Either party hereto shall be entitled alternatively or
cumulatively to damages for breach of this paragraph, to an order
requiring performance of the obligations of this paragraph or to
any other appropriate order to remedy.
12. The obligation of Seller and Revillon to consummate the
transactions herein contemplated on the closing date is, at the
option of Seller, subject to the following express conditions
precedent:
(a) The representations and warranties of Xxxxx
contained in this Agreement were true in all material respects,
when made and shall be true at and as of the closing date in all
material respects as though such representations and warranties
had been made at and as of the closing date; and Xxxxx shall have
performed all agreements on its part required to be performed and
shall not be in default in any material respect under any of the
provisions of this Agreement at or prior to the closing date.
(b) There has been no material adverse change in the
financial condition of Xxxxx since May 31, 1997. Xxxxx warrants
and represents that Xxxxx' balance sheet and statement of
operations as of and for the Quarter ended May 31, 1997, attached
hereto and made a part hereof as Exhibit C, accurately present
Xxxxx' financial condition and results of operations for the
period indicated aforesaid.
(c) Seller shall have been or will as soon as
reasonably possible after the closing, be furnished a current
certificate from the Secretary of State of Delaware that Xxxxx
is a corporation duly incorporated and subsisting under the laws
of Delaware.
(d) Seller shall have received in opinion as of the
closing date, of Counsel for Xxxxx, to the effect that:
(i) Xxxxx is a corporation duly incorporated
validly existing and in good standing under the laws of the State
of Delaware;
(ii) The execution of this Agreement, and the
performance of all obligations hereunder by Xxxxx have been duly
authorized by all necessary corporate action, and are not in
conflict with any provisions of the Articles of Incorporated or
By-Laws of Xxxxx or of any agreement to which Xxxxx is a party of
which such counsel has actual knowledge;
(iii) This Agreement has been duly executed
and delivered by Xxxxx and constitutes a valid and binding
obligation of Xxxxx enforceable according to its terms.
(e) Seller shall have been furnished with all
corporate and other documents which it may have reasonably
requested hereunder, all certified in such manner as Seller may
reasonably request.
13. Seller warrants and represents that Seller's balance
sheet and statement of operations as of and for the six month
period ended June 30, 1997, to be attached hereto and made a
part hereof as Exhibit B accurately presents Seller's financial
condition and results of operations for the period indicated
aforesaid. (The six month statements for the period ended June
30, 1997, shall be provided on or before September 15, 1997.)
14. (a) Seller agrees to reimburse Xxxxx (except for
claims of less than $250.00 each and not exceeding $7,500.00 in
the aggregate) for any expenses incurred or amount paid by Xxxxx
for repair or alteration to or on behalf of a customer of Seller
where such payment is the result of a breach of any warranty
given by Seller or by operation of law to such customer incident
to any sales made or services performed by Seller prior to the
closing date. Xxxxx shall be entitled to use its reasonable
business judgment in making such repairs and alterations provided
that if the amount involved for a single garment exceeds $250.00
Xxxxx shall inform Seller.
(b) Anything in this Agreement to the contrary
notwithstanding, and subject to Xxxxx' compliance with this
subparagraph 14(b), Seller agrees to reimburse Xxxxx, less
applicable license fees and sales commissions, in the event
customers return any garments purchased prior to the closing
date. Xxxxx shall notify Xxxxxxxxx Xxxxxx (or any other person
designated by Seller in writing) at phone number 0-000-000-0000
or fax 000-000-0000 within two business days after a customer
attempts to return such a garment. For ten (10) days thereafter,
Seller shall have the exclusive right to deal with such customer
regarding such return and to apply Seller's standard returns
policy to such customer. If, within such ten (10) day period,
Seller shall not have resolved such return transaction to the
customer's satisfaction, at no cost to Xxxxx, Bloomingdale's
shall make the final determination to resolve such dispute. Any
amount to be refunded by Bloomingdale's to such customer
according to the aforesaid procedure shall in turn be reimbursed
by Seller to Xxxxx within ten (10) days after Xxxxx notifies
Seller that such amount has been reflected as a deduction from
monies otherwise due Xxxxx on Bloomingdale's monthly remittance
schedule. In the event any such amount is not paid when due,
Xxxxx shall have the right to deduct same from the next payment
due Seller. Upon the return and refund of any sale under the
provisions of this sub-paragraph, Xxxxx shall return the garment
to Seller.
15. Xxxxx may deduct any and all reasonable and necessary
costs incurred in accordance with the provisions of paragraphs 6
and 14 above (subject to the limitations therein) from any
amounts remaining due to Seller.
16. Seller shall cause its officers to encourage Seller's
existing employees paid through Federated Department Stores, Inc.
to become employees of Xxxxx. Xxxxx will hire all of Seller's
existing employees paid through Federated Department Stores, Inc.
Subject to the needs of the business and the performance of the
individual employee, Xxxxx further intends to keep substantially
all of Seller's existing employees paid through Federated
Department Stores, Inc. in its employment.
17. Each party shall be responsible for its costs and
expenses incurred incident to its performance of and compliance
with all of the agreements and conditions contained in this
Agreement.
18. Seller and Xxxxx will at any time before, at or as soon
after the closing date as is reasonably possible, execute and
deliver or cause others to do so, all such documents, instruments
and confirmatory assignments, and do or cause to be done all such
other acts as shall be reasonably necessary to carry out their
respective obligations under this agreement.
19. Time is of the essence of this Agreement. Any party
hereto shall be entitled alternatively or cumulatively to damages
for breach of this Agreement, to an order requiring performance
of the obligations of this Agreement or to any other appropriate
order or remedy.
20. This Agreement is personal to the parties hereto and
may not be assigned in whole or in part by any of them without
the prior written consent of the other, except that Xxxxx may
assign its rights hereunder to a wholly-owned subsidiary;
provided that, no such assignment shall release Xxxxx from its
obligations hereunder, and further provided that such subsidiary
shall be subject to all obligations under this Agreement relating
to such assignment.
21. Except to the extent required by law or by a financial
institution, the parties will use their best efforts to prevent
the financial details of this transaction from becoming publicly
known.
22. All covenants, agreements, representations and
warranties made herein and certificates and instruments delivered
pursuant hereto by Seller or Xxxxx shall be deemed to be material
and to have been relied upon by the parties to whose benefit such
covenants, agreements, representations and warranties are made,
notwithstanding any investigation heretofore or hereafter made by
or on behalf of the other party and shall survive the closing
hereunder.
23. If any provision of this Agreement or the application
thereof, to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Agreement, or the
application of such provision to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not
be affected thereby and each provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
24. On the closing date, Seller shall deliver to Xxxxx in
form and substance acceptable to Xxxxx' General Counsel a
Certificate signed by Xxxxxx XxXxxxx as President of Seller, to
the effect that all warranties and representations of Seller
contained in this Agreement are true at and as of the closing
date in all material respects; that Seller has performed all
agreements on its part required to be performed hereunder and
that Seller is not in default under any of the provisions of this
Agreement.
On the closing date, Xxxxx shall deliver to Seller in
form and substance acceptable to Seller's counsel a certificate
signed by Xxxxxxx X. Xxxxxx as Vice President of Xxxxx, to the
effect that all warranties and representations of Xxxxx contained
in this Agreement are true at and as of the closing date in all
material respects, that Xxxxx has performed all agreements on its
part required to be performed hereunder and that Xxxxx is not in
default under any of the provisions of this Agreement.
25. Every notice and other communication contemplated by
this Agreement by any party hereto shall be delivered in person
or given by postage prepaid, certified mail, addressed to the
parties for whom intended at the address specified at the end of
this paragraph or at such other address as the intended recipient
previously shall have designated by written notice to the other
party. Unless otherwise provided in this Agreement, notice by
mail shall be effective on the date it is officially recorded as
delivered by return receipt and in the absence of record of
delivery it shall be presumed to be delivered on the fifth day or
next business day thereafter after it was deposited in the mails.
Notice not given in writing shall be effective only if
acknowledged in writing by the party to whom it was given. The
address of the parties hereto are:
SELLER: Triomphe Fourrures Incorporated
c/o Xxxx Xxxxxx, Esq.
Xxxxxxxx Xxxxxxx & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
and
Xxxxxx Xxxxxx
Vice Chairman & CEO
Triomphe Fourrures Incorporated
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
BUYER: Xxxxx, Inc.
Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President
and
Xxxxxx X. Xxxxxx
General Counsel
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
26. Failure of any party at any time to require another
party's performance of any obligation under this Agreement shall
not affect the right to require performance of that obligation.
Any waiver of any party hereto of any breach of any provision of
this Agreement shall not be construed as a waiver of any
continuing or succeeding breach of such provisions, a waiver of
modification of the provision itself, or a waiver or modification
of any right under this Agreement.
27. Xxxxx shall place orders with the firm of Xxxx
Xxxxxxxxxx Ltd. during the period commencing with the closing
date through January 31, 1998, under Xxxxx normal purchasing
terms of 25% per month, commencing 30 days after delivery, up to
the sum of $1.0 million. The said orders shall include the
existing Xxxx Xxxxxxxxx collection of approximately $250,000.
28. Xxxxx shall assume, for the period July 1, 1997 through
June 30, 1998, Revillon Incorporated's obligations under its
existing contract with Xxxx Xxxxxxxxx S.A. for the exclusive
right to manufacture, distribute and sell certain Xxxx Xxxxxxxxx
branded fur garments for women in the U.S.A.; provided, however,
that Seller shall use its best efforts without being required to
pay any additional sums therefor, to secure for Xxxxx an option,
exercisable on or before October 31, 1997, to fulfill Revillon
Incorporated's obligations under such contract for the period
July 1, 1998 through June 30, 1999.
29. Anything in this Agreement to the contrary
notwithstanding, Xxxxx shall be required to give Seller notice of
any claim that Seller has breached any term or provision of this
Agreement not later than December 30, 1999.
30. The closing shall be held at the offices of Xxxxxxxx
Xxxxxxx & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000.
31. This Agreement sets forth the entire understanding and
supersedes prior agreements between the parties relating to the
subject matter contained herein and merges all prior discussions
between them and no party shall be bound by any definition,
condition, representation, warranty, covenant or other provision,
other than as expressly stated in this Agreement or as
contemporaneously or subsequently set forth in writing and
executed by the party to be bound thereby.
32. The validity, construction and enforceability of this
Agreement shall be governed in all respects by the laws of the
State of Ohio.
33. The Agreement includes all Schedules and Exhibits
hereto annexed. Any information included in any Schedule or
Exhibit shall be deemed to be included in all Schedules and
Exhibits for all purposes of this Agreement.
34. Each party represents that it has not employed any
broker or finder in connection with the transactions contemplated
by this Agreement.
35. Annexed hereto as Exhibit D is a letter from Xxxxx'
lender approving the transactions contemplated by this Agreement.
36. Revillon, Incorporated joins herein solely for the
purpose of assigning all of its right, title and interest in the
trade names and trademarks used in said fur business including,
but not limited to, the name "Maximilian" for furs and fur
products throughout the world and as registered in countries
which are listed in the Schedule of Trademarks attached hereto as
Schedule VIII, subject to the claims, restrictions, exceptions
and limitations set forth in the Schedule of Trademarks.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the date first above written.
ATTEST: TRIOMPHE FOURRURES INCORPORATED:
XXXX XXXXXX, Secretary By: XXXXXXX XX XXXXX, President
ATTEST: REVILLON, INCORPORATED:
XXXX XXXXXX, Secretary By: XXXXXXX XX XXXXX, President
ATTEST: XXXXX, INC.
XXXXXX X. XXXXXX, Secretary By: XXXXXXX X. XXXXXX, Vice President
