ASSET PURCHASE AGREEMENT
between
DESIGNS, INC.
and
LEVI'S ONLY STORES, INC.
dated as of
September 30, 1998
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement dated as of September 30, 1998 (this
"Agreement") is made by and between Designs, Inc., a Delaware corporation
("Designs"), and Levi's Only Stores, Inc., a Delaware corporation ("LOS").
WHEREAS, Designs and LOS (collectively the "Parties" and each
individually a "Party") are in the business of owning and operating family
clothing retail stores; and
WHEREAS, Designs wishes to purchase certain assets from, and assume
certain obligations of, LOS related to the 25 stores listed on the Schedule of
Stores attached hereto (collectively, the "Stores"); and
WHEREAS, LOS wishes to sell such assets and delegate such obligations
to Designs subject to the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements herein contained, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions
When used with initial capital letters in this Agreement, the
following terms have the following meanings:
"Affiliate" means, with respect to any Person, any other
Person which directly or indirectly Controls, is Controlled by, or is under
common Control with, the specified Person.
"Asset Statement" has the meaning set forth in Section 2.5 of
this Agreement.
"Assumed Contracts" means those Contracts listed in Schedule
2.1 that Designs will assume.
"Base Rate" means the "base" or "reference" rate of interest
quoted, from time to time, by Bank of America, N.T. & S.A. at its headquarters
in San Francisco, California. Any interest rate specified in this Agreement
based upon the "Base Rate" shall be adjusted, from time to time, whenever the
Base Rate changes. However, under no circumstances shall the Base Rate at any
time exceed the maximum rate permitted by applicable law.
"Closing" means the signing and delivery of the Transaction
Documents.
"Closing Date" means the date the Closing takes place.
"Contracts" means all Store Leases and other contracts and
understandings to which LOS is a party with respect to any goods and services
(for example, utilities) that are used or consumed at any Store.
"Control", as applied to any Person, means (and the terms
"Controls", "Controlling", "Controlled by" and "under common Control with" refer
to) the direct or indirect ownership of stock or other equity interests, or
contract or other rights, in any such case entitling their holder to elect at
least 50 percent of the directors or similar functionaries of that Person.
"Controversy" means any dispute or claim involving the rights,
obligations or liabilities of any Party under any Transaction Document. However,
"Controversy" shall not include any dispute which a Transaction Document
specifies will be resolved by or referred to an accounting firm or other expert
or specialist.
"Damages" means all losses, liabilities, damages,
deficiencies, judgments, assessments, interests, penalties, fines, costs and
expenses (including, without limitation, reasonable fees, disbursements and
other charges of attorneys, accountants, consultants, experts and other
professionals and irrespective of whether any underlying liability is
established). However, "Damages" shall not include any punitive, exemplary or
similar damages, it being understood that punitive, exemplary and similar
damages shall not be recoverable for any breach of this Agreement.
"Lien" means any mortgage, deed of trust, security interest,
retention of title or lease for security purposes, pledge, charge, encumbrance,
claim, easement, right of way, covenant, restriction, leasehold interest or
other right of any kind of any Person in or with respect to any property.
"LS&CO." means Levi Xxxxxxx & Co., a Delaware corporation.
"Person" means any individual or entity including, without
limitation, any government body.
"Purchase Price" has the meaning set forth in Section 2.3 of
this Agreement.
"Store Assets" has the meaning set forth in Sections 2.1 and
2.2 of this Agreement.
"Store Employee" has the meaning set forth in Section 4.8 of
this Agreement.
"Store Leases" has the meaning set forth in Section 2.1(a) of
this Agreement.
"Stores" has the meaning set forth in the preliminary
paragraphs of this Agreement.
"Transaction Documents" means this Agreement, a First
Amendment to the Trademark License Agreement dated November 15, 1996 between
Designs and LS&CO. and all other documents, certificates and instruments signed
and delivered by one or both of the Parties in order to effect the Closing.
1.2 Accounting Terms. For purposes of this Agreement, all
accounting terms not otherwise defined in this Agreement have the meanings
assigned to them by generally accepted accounting principles.
ARTICLE 2
PURCHASE AND SALE OF ASSETS
2.1 Purchase and Sale of Assets. At the Closing, LOS shall sell
and transfer to Designs, and Designs shall purchase from LOS, all of LOS' right,
title and interest in and to all Store Assets. The Store Assets consist of:
(a) the lease agreements for the real estate occupied by
the Stores (the "Store Leases");
(b) all fixtures and tangible personal property owned by
LOS and located at any Store on the Closing Date, including, for example,
furniture, equipment, inventory, supplies, signage and copies, but not
originals, of records;
(c) all rights that accrue after the Closing under all
Assumed Contracts, including, without limitation, purchase orders for inventory
ordered but not yet received or paid for;
(d) all third party warranties to LOS relating to the Store
Assets, whether express or implied, and claims arising under warranties,
representations and guaranties made to LOS in connection with the operation of
the Stores; and
(e) cash in the Stores in an amount equal to $19,900.
Schedule 2.1 to this Agreement is a list of the Store Assets segregated by
Store, excepting items of owned tangible property that had an original cost of
less than $1,000. Because LOS prepared Schedule 2.1, any failure to identify any
Store Assets on Schedule 2.1 shall not prejudice the right of Designs to those
assets.
Certain Contracts relate also to tangible personal property, other
items or services that are also used at stores owned or operated by LOS which
are not Stores. Those Contracts shall not be assigned and assumed, as such.
However, unless and until Designs enters into a separate agreement with the
relevant vendor or a substitute vendor, the Parties shall cooperate in order to
do what they can to enable Designs to realize the benefits of those Contracts,
subject to the burdens of those Contracts, but with respect to the Stores only,
and Designs shall reimburse LOS for its costs related to such benefits and
burdens. The Parties shall cooperate to cause the Partnership to obtain such
separate agreements as soon as is reasonably practicable. In addition, LOS is
party to certain Store-related Contracts which LOS and Designs have decided will
not be assigned to Designs and with respect to which Designs will not assume the
obligations of LOS .
2.2 Excluded Assets. Notwithstanding the provisions of Section
2.1, the Store Assets do not include:
(a) cash (other than the cash in the Stores described
above), cash equivalents, security deposits, accounts receivable, claims, rights
to refunds, point-of-sale registers, printers, LED displays, backroom terminals
or claims of rights to refunds; and
(b) market or other research data and consumer names,
addresses, order profiles and other consumer database information relating to
the Stores, all of which LOS shall retain. The foregoing notwithstanding,
Designs shall be entitled to access to and use of data relating to individual
Store customers solely in connection with interactions with customers of the
relevant Stores (and not in connection with separate marketing activities to
promote businesses or products other than those offered for sale in the Stores)
and shall not transfer such data or information to any third party.
2.3 Purchase Price. The purchase price for the Store Assets (the
"Purchase Price") shall be equal to the net book value of the Store Assets as of
the Closing determined in accordance with generally accepted accounting
principles.
2.4 Payment. At the Closing, Designs shall pay LOS $10,434,625 in
cash, which represents the Parties' preliminary estimate of the Purchase Price
(the "Estimated Purchase Price"). Designs shall wire that sum to an account
designated by LOS. Further payments or refunds with respect to the Purchase
Price, if any, shall be calculated and paid in accordance with Section 2.5.
2.5 Adjustment. After the Closing, the Parties shall determine the
exact Purchase Price as follows:
(a) Within 60 days after the Closing, LOS shall deliver a
statement to Designs setting forth all the figures needed to determine the net
book value of the Store Assets (the "Asset Statement"). The Asset Statement
shall be certified by LOS' senior finance manager as having been prepared in
accordance with generally accepted accounting principles. Within 30 days after
LOS delivers the Asset Statement to Designs, Designs shall (i) accept the Asset
Statement or (ii) furnish LOS with a statement objecting to one or more of the
figures in the Asset Statement and the basis for its objections and/or requiring
that one or more of the figures in the Asset Statement be audited. If Designs
does not respond within those 30 days, Designs shall be deemed to have accepted
the Asset Statement. LOS shall furnish Designs and its representatives with all
information reasonably requested by Designs or its representatives to enable it
to assess the Asset Statement both during and after that 30-day period.
(b) If Designs timely objects to any aspect of the Asset
Statement or, in any event, Designs requests that one or more figures in the
Asset Statement be audited, the open issues shall be resolved or the audit shall
be performed by an accounting firm jointly selected by Designs and LOS. The firm
selected shall be instructed to resolve the matters in controversy within 30
days after it is selected or as soon thereafter as is reasonable. The Parties
shall furnish that firm with all information it reasonably requests in order to
perform its task and meet that schedule. That firm's resolution of the open
issues shall bind both Parties. The Parties shall each pay one-half of the fees
and expenses of that firm.
(c) Within three business days after the final Asset
Statement has been completed (whether by acquiescence, negotiation or binding
resolution of the third accounting firm), Designs shall pay an additional amount
to LOS or LOS shall refund an amount to Designs (whichever is appropriate) equal
to the amount by which the Purchase Price shown on the final Asset Statement
differs from the Estimated Purchase Price. That payment or refund shall be
accompanied by interest from the Closing Date to the date of the payment or
refund calculated at the Base Rate.
(d) Computation of the Purchase Price shall reflect any
diminution in value of the Store Assets associated with wind, water or other
damage caused by Hurricane Georges to the Stores located in Gulfport,
Mississippi and Destin, Florida.
2.6 Assumption of Obligations. Subject to the accuracy of LOS'
representations and warranties set forth in Section 4.6, at the Closing, Designs
shall assume LOS' obligations under each Assumed Contract listed in Schedule
2.1, to the extent (but only to the extent) that those obligations accrue after
the Closing.
2.7 Gift Certificates and Credits. Before the Closing, LOS issued
gift certificates and merchandise credits that are redeemable at the Stores. A
number of those certificates and credits are still outstanding. Designs shall
honor those certificates and credits after the Closing. Designs shall
periodically submit copies of those gift certificates and merchandise credits
redeemed after the Closing to LOS or, instead, a statement listing the serial
numbers and face amounts of those redeemed certificates and credits. Within
thirty (30) days after each such submission, LOS shall pay Designs an amount
equal to the total face amount of the redeemed certificates and credits that
were the subject of that submission.
2.8 No Other Assumed Obligations or Liabilities. Designs shall not
assume any obligations or liabilities of LOS, except as expressly provided in
Sections 2.6 and 2.7. For example, LOS shall retain and discharge all
obligations and liabilities associated with its employees, including any of its
employees who are hired by Designs, for the period they were or are employed by
LOS, including any and all obligations and liabilities for severance, vacation,
holidays, personal time, sick time and other compensation and employee benefits.
2.9 Prorations. In order to implement this Article 2, LOS and
Designs shall prorate, as between them, all expenses associated with the Store
Assets and the operation of the Stores. They shall do that as of the opening of
business on the Closing Date. Examples are utilities, rent (including, for
example, common area maintenance charges, taxes and other landlord's charges),
insurance premiums (unless and to the extent Designs displaces existing coverage
with other coverage), HVAC maintenance charges and security service charges. The
prorations shall be based on the number of days elapsed during the relevant
period up to, but not including, the Closing Date, unless such proration period
would be manifestly unfair. An example of such "unfairness" would be a waterpipe
break at a store, two days after the Closing Date, that results in charges for
one million gallons of water on the water xxxx for that Store for the period
that up to, but not including, the Closing Date. Under that circumstance,
Designs would pay those incremental charges.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF DESIGNS
Designs represents and warrants to LOS that as of the Closing Date:
3.1 Organization and Authority. Designs is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Designs has also qualified to conduct business or is in the process of
qualifying to conduct business in each of the states in which the Stores are
located. Designs has all requisite power and authority to enter into and perform
the Transaction Documents. The signing, delivery and performance by Designs of
the Transaction Documents have been duly and validly authorized by all necessary
corporate action on the part of Designs. Each Transaction Document constitutes a
valid and binding obligation of Designs enforceable against Designs in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws that generally affect
creditors and except as may be limited by general principles of equity. The
signing, delivery and performance by Designs of each Transaction Document will
not: (a) violate or conflict with any provision of the Certificate of
Incorporation or By-laws of Designs; (b) violate, conflict with or result in a
breach or termination of any contract or other instrument to which Designs is a
party or by which any of its assets is bound; (c) result in the creation of any
Lien on any assets of Designs; (d) violate any judgment, order, injunction,
decree or award that binds Designs or any of its assets; or (e) constitute a
violation of law.
3.2 Consents and Approvals. Schedule 3.2 to this Agreement lists
all consents and approvals of, and filings and registrations with, any Person
required in order for Designs to sign, deliver and perform the Transaction
Documents. An example is consents from Designs' lenders. Designs has obtained
all of those consents and approvals and made all of those filings and
registrations.
3.3 Litigation and Claims. There is no suit, action, investigation
or other proceeding pending or, to the best knowledge of Designs, threatened
against Designs relating to any of the transactions contemplated by this
Agreement.
3.4 Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976. The
Chief Executive Officer and Chief Financial Officer of Designs, acting on
authority duly delegated from its Board of Directors, have determined that the
value of the assets being acquired by Designs hereunder is less than $15
million. Value, for this purpose, means the higher of the acquisition price set
forth in this Agreement and fair market value as contemplated by 16 C.F.R.
ss.801.10 promulgated under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976.
3.5 Brokers and Finders. No broker, finder or other Person acting
on behalf of Designs is or will be entitled to any commission, fee or
reimbursement in connection with any of the transactions contemplated by this
Agreement. LOS shall have no liability to pay any broker, finder or other
Person, who may have acted on behalf of Designs, for any commission, fee or
reimbursement in connection with the transactions contemplated by this
Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF LOS
LOS represents and warrants to Designs that, except as shown on
Schedule 4 to this Agreement, as of the Closing Date:
4.1 Organization and Authority. LOS and LS&CO. are each
corporations duly organized, validly existing and in good standing under the
laws of the State of Delaware. LOS is also duly qualified to conduct business
and is in good standing in each of the states in which the Stores are located.
LOS has all requisite power and authority to lease and operate the Stores, to
carry on the business of the Stores and to enter into and perform the
Transaction Documents. The signing, delivery and performance by LOS and LS&CO.
of the Transaction Documents have been duly and validly authorized by all
necessary corporate action on the part of LOS and LS&CO. Each Transaction
Document constitutes a valid and binding obligation of LOS and LS&CO., as the
case may be, and is enforceable against LOS and LS&CO. in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws that generally affect creditors and
except as may be limited by general principles of equity. The signing, delivery
and performance by LOS and LS&CO. of each Transaction Document signed by it will
not: (a) violate or conflict with any provision of the Certificate of
Incorporation or By-laws of LOS or LS&CO.; (b) violate, conflict with or result
in a breach or termination of any contract or other instrument (including any
Contract) to which LOS or LS&CO. is a party or by which any of its assets
(including any Store Assets) is bound; (c) result in the creation of any Lien on
any assets of LOS (including any Store Assets) or LS&CO.; (d) violate any
judgment, order, injunction, decree or award that binds LOS or LS&CO. or any of
its assets (including any Store Assets); or (e) assuming the accuracy of
Designs' representation in Section 3.4, constitute a violation of law.
4.2 Consents, Permits and Approvals. Schedule 4.2 to this
Agreement lists all consents, permits and approvals of, and filings and
registrations with, all Persons required in order for LOS to sign, deliver and
perform the Transaction Documents and to enable Designs to continue to conduct,
at each Store after the Closing, the business that LOS conducted at that Store
before the Closing. Examples are consents from landlords under the Store Leases
and consents from other parties under other Assumed Contracts. LOS has obtained
all of those consents, permits and approvals and made all of those filings and
registrations.
4.3 Litigation and Claims. Except as set forth in Schedule 4.3,
there is no suit, action, investigation or other proceeding pending or, to the
best knowledge of LOS, threatened against LOS relating to any of the
transactions contemplated by this Agreement, any of the Store Assets (whether an
Assumed Contract or another asset), any Store or any aspect of the business
conducted at any Store. Nor is there any outstanding judgment, order,
injunction, decree or award that binds LOS with respect to, or otherwise
affects, any of the Store Assets (whether an Assumed Contract or another asset),
any Store or any aspect of the business conducted at any Store.
4.4 Compliance with Laws. Before the Closing, LOS was conducting
the business of the Stores in substantial compliance with all laws applicable to
LOS including, for example, all laws relating to employees, safety, the
environment, consumer protection and land use.
4.5 Title and Condition. At the Closing, LOS is conveying to
Designs good title in and to all the Store Assets free and clear of all Liens.
Immediately after the Closing, Designs will have good title to all the Store
Assets free and clear of all Liens. Except as set forth on Schedule 4.5, to the
best knowledge of LOS: (i) there are no material defects in the premises covered
by any of the Store Leases or the real estate on which those premises are
located; (ii) the utilities and other systems that serve those premises and real
estate are in normal working order and condition, ordinary wear and tear
excepted and (iii) all the material fixtures, equipment, furniture and vehicles
that are included among the Store Assets, as well as all the material fixtures,
equipment, furniture and vehicles leased or otherwise used at the Stores, are
also in normal working order and condition, ordinary wear and tear excepted.
4.6 Contracts. All the Assumed Contracts are identified on
Schedule 2.1. Except as set forth on Schedule 2.1, LOS has given Designs correct
and complete copies of all the Assumed Contracts, including copies of all
amendments to all the Assumed Contracts and all material written waivers of
rights under all the Assumed Contracts. All the Assumed Contracts are legal,
valid and binding obligations of LOS. To the knowledge of LOS, all the Assumed
Contracts are also legal, valid and binding obligations of the other parties to
the Assumed Contracts. Neither LOS nor, to the knowledge of LOS, any other party
to any Contract is in material default under any Assumed Contract. Neither LOS
nor, to the knowledge of LOS, any other such party has repudiated or purported
to repudiate any Assumed Contract. No party to any Assumed Contract other than
purchase orders to LS&CO. for inventory is an Affiliate, director or officer of
LOS.
4.7 Financial Statements. Schedule 4.7 contains an income
statement and an asset statement for each of the Stores for the periods and as
of the dates indicated on Schedule 4.7. Except as set forth on Schedule 4.7,
each such income statement and asset statement has been prepared in accordance
with generally accepted accounting principles.
4.8 Employees. Schedule 4.8 contains a complete and accurate list
of: (i) each employee of LOS employed at any Store (each such employee is
sometimes referred to herein as a "Store Employee") and (ii) each Store
Employee's salary or hourly rate currently in effect and annual bonus (last paid
or payable), if any. LOS has not and will not, at any time prior to the Closing,
increase the compensation payable or to become payable, or the benefits provided
to, any Store Employee except in the ordinary course of business consistent with
past practices. Except as set forth on Schedule 4.8, all Store Employees are
actually at work, and no Store Employee is currently on leave of absence,
layoff, military leave, suspension, sick leave, workers' compensation, salary
continuance or short or long term disability or otherwise not actively
performing such Store Employee's work during normally scheduled business hours.
Except as set forth in Schedule 4.8, there are no charges with respect to or
relating to the operation of any of the Stores before the Equal Employment
Opportunity Commission or any court or government agency relating to
discrimination or unlawful employment practices.
4.9 Employee Relations and ERISA. LOS is not a party to any
collective bargaining agreement that covers any of the Store Employees or any
other employees who worked at any Store at any time during the 12 months before
the Closing. To LOS' best knowledge, no union or other labor organization is
attempting or has attempted to organize any of the Store Employees or any such
other employees. Except as shown on Schedule 4.9, LOS neither maintains or
contributes to, nor has maintained or contributed to, any "employee pension
benefit plan" (including any "multiemployer plan") or any "employee welfare
benefit plan" (in each such case within the meaning of the of the Employee
Retirement Income Security Act of 1974, as amended, or any rule or regulation
adopted under that act) in which any Store Employees or any such other employees
participate or have participated.
4.10 Brokers and Finders. No broker, finder or other Person acting
on behalf of LOS is or will be entitled to any commission, fee or reimbursement
in connection with any of the transactions contemplated by this Agreement.
ARTICLE 5
EMPLOYEES
At the Closing, LOS shall make all Store Employees available to Designs
for hiring by Designs.
ARTICLE 6
INDEMNIFICATION
6.1 By Designs. Designs shall indemnify LOS and LOS' Affiliates
and hold them harmless from and against any and all Damages arising from: (a)
any breach of any covenant, representation or warranty of Designs set forth in
this Agreement; (b) all obligations of LOS to the extent (but only to the
extent) that Designs expressly assumed them under Section 2.6 or 2.7 of this
Agreement and all liabilities of LOS that arise out of Designs' access to and
use of data and information as Designs contemplated by Section 2.2; and (c) all
obligations and liabilities of Designs that arise from the ownership or
operation of the Stores by Designs after the Closing other than those arising
from or related to a breach of one or more of LOS' representations and
warranties contained in this Agreement.
6.2 By LOS. LOS shall indemnify Designs and Designs' Affiliates
and hold them harmless from and against any and all Damages arising from (a) any
breach of any covenant, representation or warranty of LOS set forth in this
Agreement; (b) all obligations and liabilities of LOS that in any way relate to
or are connected with the Stores or their operation before the Closing, other
than the obligations that Designs expressly assumed under Section 2.6 or 2.7 of
this Agreement; and (c) the failure of the Parties to comply with bulk sales
laws (if applicable) or any similar laws in connection with the transactions
contemplated by this Agreement.
6.3 Indemnification Rules. Indemnification under this Article 6
shall be governed by the rules set forth in Schedule 6.3 to this Agreement.
6.4 Deductible. Notwithstanding anything to the contrary in this
Agreement or otherwise provided by law, neither Party shall be required to
indemnify the other Party or the other Party's Affiliates unless the total
amount required to be so indemnified exceeds $10,000 (for all matters combined),
in which case the amount indemnified shall be the amount in excess of $10,000.
6.5 Limitation. Notwithstanding anything to the contrary in this
Agreement or otherwise provided by law, neither Party shall be required to
indemnify the other Party or the other Party's Affiliates for any amount (for
all matters combined) in excess of the Purchase Price.
6.6 Survival. The covenants, representations and warranties set
forth in this Agreement shall survive the Closing.
ARTICLE 7
DISPUTE RESOLUTION
Any Controversy under this Agreement or with respect to any of the
subjects treated in this Agreement shall be resolved, if possible, by the good
faith efforts of LOS and Designs including, if other efforts fail, a
face-to-face meeting between a senior manager of LOS and a senior manager of
Designs. If any Controversy is not settled by such efforts within 30 days after
LOS or Designs requests such a meeting, either of them shall be entitled to
cause the Controversy to be resolved by an arbitrator employed by
JAMS/Endispute. If Designs initiates arbitration, the arbitration shall be
conducted in San Francisco, California. If LOS initiates arbitration, the
arbitration shall be conducted in Boston, Massachusetts. The arbitration shall
be conducted in accordance with JAMS/Endispute's then-applicable Rules of
Practice and Procedure for Arbitration. Pending the completion of any
arbitration proceeding, obligations not in dispute shall continue to be
performed. Except as provided below, such arbitration shall be the Parties'
exclusive formal means of resolving any such Controversy. The decision of the
arbitrator shall be final and binding on both Parties. Judgment upon any award
rendered by the arbitrator may be entered by any state or federal court having
jurisdiction. Notwithstanding the foregoing, to preserve rights or prevent or
mitigate Damages and in aid of the arbitration process, LOS or Designs may apply
to such a court for temporary or preliminary injunctive or other equitable
relief pending the results of the arbitration. However, if the final decision of
the arbitrator is inconsistent with any such relief so obtained, the
arbitrator's final decision shall preempt that relief. Notwithstanding any other
provision of this Article 7, any dispute relating to the amount of the Purchase
Price shall be resolved in accordance with Section 2.5.
ARTICLE 8
MISCELLANEOUS
8.1 Sales and Lease Transfer Tax. Each Party shall pay one-half of
any sales or lease transfer taxes payable in connection with the transactions
contemplated by this Agreement.
8.2 Further Assurances. After the Closing, each Party, at its own
expense, shall sign and deliver all documents, and take all other actions,
reasonably requested by the other Party in order to memorialize, better
effectuate or perfect the sale and transfer of the Store Assets to Designs and
Designs' assumption of the obligations required by Section 2.6 of this
Agreement. Without limiting the generality of the foregoing, LOS agrees to
cooperate with and assist Designs in obtaining the benefits of all third party
warranties related to the Store Assets.
8.3 Successors and Assigns. The Parties shall not assign any of
their rights or delegate any of their duties under this Agreement. Any purported
assignment or delegation in violation of this Agreement shall be void.
8.4 Amendments. All amendments to this Agreement must be in
writing and be signed by both Parties.
8.5 Notices. All notices under this Agreement shall be in writing
and shall be deemed to have been duly given only if and when delivered by hand,
by overnight delivery service or by telecopier, in all cases with receipt
confirmed, to the appropriate addressees and the addresses or telecopier numbers
set forth below, or to such other addressees, addresses or telecopier numbers as
may be designated by notice given in accordance with this section:
If to LOS: With a Copy to:
Levi's Only Stores, Inc. Levi Xxxxxxx & Co.
0000 Xxxxxx Xxxx Xxxx'x Xxxxx
Xxxxxxxx, XX 00000 0000 Xxxxxxx Xxxxx
Xxxxxxxxx: Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000 Attention: General Counsel/LOS
Facsimile:(000) 000-0000
If to Designs: With a Copy to:
Designs, Inc. Designs, Inc.
00 X Xxxxxx 00 X Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: President Attention: General Counsel
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
8.6 Counterparts. This Agreement may be signed in one or more
counterparts. Each counterpart shall be deemed an original of this Agreement.
8.7 Entire Agreement. This Agreement (including the Schedules to
this Agreement) and the other Transaction Documents contain all the
understandings between the Parties with respect to the subject matter of this
Agreement. They supersede all prior and contemporaneous agreements and
understandings among the Parties and their Affiliates relating to that subject
matter.
8.8 Severability. If any portion of this Agreement is determined
to be invalid or unenforceable, it shall be modified rather than voided, if
possible, in order to carry out the intent of this Agreement. In any event, the
remainder of this Agreement shall be valid and enforceable to the fullest extent
possible.
8.9 No Third Party Beneficiaries. This Agreement is for the sole
benefit of the Parties and their respective Affiliates and is not for the
benefit of any third party.
8.10 Costs of Enforcement. If either Party to this Agreement seeks
to enforce its rights under this Agreement by formal proceedings or otherwise,
the non-prevailing Party shall pay all costs and expenses incurred by the
prevailing Party (who shall be the Party which obtains substantially the relief
it sought, whether by settlement, compromise or judgment), including all
reasonable attorneys' fees and costs.
8.11 Expenses. Each Party shall pay its own expenses incurred in
negotiating and drafting this Agreement and the other Transaction Documents and
in effecting the Closing.
8.12 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts entered into and to be performed within Delaware by Delaware
residents.
8.13 Public Announcements. Except for announcements or filings
required by law, without the prior consent of the other Party, each Party will
not issue or permit any of its subsidiaries, directors, officers, employees or
agents to issue any press release or other information t the press or any third
party with respect to this Agreement or the transactions contemplated hereby.
8.14 Certain Matters of Construction. A reference to an Article,
Section or Schedule shall mean an Article of, Section in or Schedule to, this
Agreement unless otherwise expressly stated. The titles and headings herein are
for reference purposes only and shall not in any manner limit the construction
of this Agreement which shall be considered as a whole. The words "include,"
"includes" and "including" when used herein shall be deemed in each case to be
followed by the words "without limitation." Whenever the context may require,
any pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice-versa.
* * * * *
IN WITNESS WHEREOF, the parties hereto have entered into this Asset
Purchase Agreement as of the date first above written.
LEVI'S ONLY STORES, INC.
By /s/ Xxxxxx Xxxxx
________________________________
Xxxxxx Xxxxx, Vice President
DESIGNS, INC.
By /s/ Xxxx X. Xxxxxxxx
_____________________________
Xxxx X. Xxxxxxxx, President
