EXHIBIT 10.70
INVENTORY PURCHASE AGREEMENT
This Inventory Purchase Agreement, effective as of December 9, 1996,
is made and entered into by and between Brylane, L.P., a Delaware limited
partnership ("Brylane"), and The TJX Companies, Inc., a Delaware corporation
("TJX").
WHEREAS, Xxxxxxxx'x, Inc., a wholly-owned subsidiary of TJX ("COB"),
is a catalog retailer of off-price women's apparel and other merchandise and TJX
is an off-price retailer of similar merchandise;
WHEREAS, for a number of years COB has had excess inventory which it
has liquidated by sales to TJX, among others; and
WHEREAS, Brylane has agreed to purchase substantially all of the
assets of COB from TJX (the "Asset Acquisition");
WHEREAS, in connection with the Asset Acquisition, Brylane and TJX
desire to enter into an arrangement for the sale to TJX of certain excess
inventory upon terms and conditions similar to those previously agreed to by TJX
and COB; and
NOW, THEREFORE, the parties agree as follows:
1. The term of this Agreement shall be for the period beginning as
of the date hereof and ending January 29, 2000 (the "Term").
2. Subject to the terms and conditions of this Agreement, in each
Contract Year (as defined below) Brylane shall, consistent with the past
practices of COB, make all Excess Inventory (as defined below) available for
sale to TJX. As used herein, "Contract Year" shall mean the twelve-month period
ending on the last Saturday in January in each calendar year of the Term (except
that the first Contract Year shall commence on the date hereof and end on the
last Saturday in January 1997) and "Excess Inventory" shall mean all of the
first quality merchandise purchased for sale through the Xxxxxxxx'x of Boston
Ltd. catalogs that Brylane does not sell through either the Xxxxxxxx'x of
Boston, Ltd. regular or sale catalogs or through the two existing COB outlet
stores.
3. From time to time and consistent with the past practices of COB,
Brylane shall specify to TJX, in reasonable detail, the Excess Inventory to be
made available for sale to TJX hereunder. Brylane shall use commercially
reasonable efforts to make Excess Inventory available for sale to TJX at times
and in quantities consistent with the past course of dealing between COB and
TJX. Within seven (7) business days after any such Excess Inventory has been
made available to TJX for inspection, TJX may offer to purchase
the Excess Inventory at a * , it being the intention of the parties
that they are to deal with each other fairly and consistent with the past
practice of COB and TJX. Any such offer from TJX shall be deemed to include a
representation and warranty that any price offered by TJX complies with the
requirements of the immediately preceding sentence. In all events, TJX shall be
required to offer to purchase Excess Inventory having a value, measured by
Brylane's original retail price for the merchandise, of at least *
during each Contract Year (the "Annual Minimum"), except that during the first
Contract Year the Annual Minimum shall be the product of * times the
quotient obtained by dividing the number of days in the first contract year by
365; in each case, reduced as provided in Section 4.
4. Within five (5) business days after receipt of an offer from TJX
pursuant to Section 3, Brylane shall advise TJX whether it wishes to accept
TJX's offer. If Brylane shall reject any offer made by TJX in accordance with
Section 3, the Annual Minimum for the Contract Year in which the rejection
occurs shall be reduced by the Brylane retail price of the merchandise for which
the offer has been rejected.
5. Brylane shall ship all Excess Inventory purchased by TJX
hereunder as soon as reasonably practicable F.O.B., West Bridgewater,
Massachusetts. TJX shall make payment to Brylane within thirty (30) days from
the date the goods are received. If TJX shall fail to make payment within 30
days, TJX shall pay to Brylane interest on the amount so owed at an annual rate
equal to the rate of interest from time to time announced by the First National
Bank of Boston as its prime rate until paid.
6. In the event of any conflict between this Agreement and any
purchase order, this Agreement shall prevail.
7. The parties agree to use all reasonable efforts to resolve in an
amicable manner any and all disputes between them in connection with this
Agreement. In the event of the occurrence of a dispute which cannot otherwise
be resolved by the parties, such dispute shall be referred to the respective
Chief Executive Officers or Executive Vice Presidents -- Merchandising (or
equivalent position) of the parties for resolution.
8. Except for obligations relating to the payment of money, neither
party shall be liable for any loss, damage or penalty resulting from delays or
failures in performance resulting from acts of God or other causes beyond its
reasonable control. Each party agrees to notify the other promptly of any
circumstance delaying its performance and to resume performance as soon
thereafter as is reasonably practicable.
9. No modification of this Agreement or any waiver of any rights
hereunder shall be effective unless assented to in writing by the party to be
charged, and the
*Information deleted
pursuant to Rule 406.
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waiver of any breach or default shall not constitute a waiver of any other right
hereunder or any subsequent breach or default.
10. All notices and other communications hereunder shall be in
writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person, by electronic facsimile transmission, cable,
telegram or telex or by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to TJX, to: The TJX Companies, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Telecopier: (000) 000-0000
With copies to each: President and General Counsel
And with a copy to: Xxxxxx X. Xxxxx, Esq.
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier: (000) 000-0000
If to Brylane: Brylane, L.P.
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
With a copy to: Xxxx X. Xxxx Xxxxxxx Xxxxxx & Co. Incorporated
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
or to such other address as either party herein may designate for itself by
notice given as herein provided.
11. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their successors and permitted assigns. This Agreement
may not be assigned by either party without the prior written approval of the
other party.
12. This Agreement shall be construed and enforced in accordance with
the laws of The Commonwealth of Massachusetts without reference to conflict of
laws principles.
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IN WITNESS WHEREOF, The TJX Companies, Inc. and Brylane, L.P. have
each caused this Agreement to be executed under seal by its duly authorized
officer as of the date first set forth above.
THE TJX COMPANIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
BRYLANE, L.P.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Representative
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