EXHIBIT 10.12
AMENDED AND RESTATED SOURCING AGREEMENT
This AMENDED AND RESTATED SOURCING AGREEMENT (this "Agreement"), is dated
as of July 22, 2002, by and among Federated Department Stores, Inc., a Delaware
corporation ("Federated"), and Aeropostale, Inc. ("Company"), successor in
interest to Specialty Acquisition Corporation, a Delaware corporation and
MSS-Delaware, Inc., a Delaware corporation.
RECITALS:
A. The Company conducts the retail sale of men's and women's apparel and
accessories ("Merchandise") at retail locations throughout the United States.
B. Federated has agreed to enter into this Agreement to provide certain
services to the Company under and subject to the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Sourcing and Purchasing Services. The Company hereby engages Federated,
and Federated hereby accepts such engagement, solely as an independent
contractor, to provide the following services during the Term:
(a) Agreement to Provide Sourcing and Purchasing Services. Federated will
provide purchasing, facilitation and importation services hereunder to the
extent and in a manner substantially similar to the manner in which it provides
such services in connection with the sourcing of merchandise for sale in its own
stores, and in accordance with all applicable laws. Specifically, Federated will
purchase Merchandise for resale to the Company pursuant to orders placed with
Federated by the Company (such Merchandise being, when ordered by the Company
from Federated hereunder, "Products"). The Company will engage Federated as an
importer of record of Merchandise from foreign sources at cost F.O.B. foreign
port. Company at all times will have the right. to source and import Merchandise
from any person without using Federated's services and without obligation of any
kind to Federated; provided that, in such instances, Federated will not have any
duty or responsibility whatsoever with respect to such Merchandise sourced from
such other persons.
(b) Purchasing Procedure. The Company will, at its sole cost and expense:
prepare and deliver reasonably detailed Product specifications in writing to the
appropriate Federated overseas office; negotiate the terms of the manufacture
and delivery of such Products with vendors (including without limitation the
price and quality standards thereof), except that, at the request of the
Company, Federated will participate in such negotiations to the extent
consistent with its practice prior to the date hereof; and authorize, by means
of purchase orders in substantially the form then used by Federated for
purchases of merchandise for its own stores. Federated to purchase such Products
from vendors designated by the Company. Federated will then promptly confirm
such orders in writing and timely place corresponding purchase orders with the
vendors designated by the Company for such Products. Federated will use
commercially reasonable efforts to cause such vendors to comply with the
Company's
specifications and timing requirements including by visiting and inspecting the
vendors' facilities. The Company may, at its sole cost and expense and to the
extent it deems appropriate, cause its employees and representatives to travel
to Federated's overseas offices and vendors' facilities in connection with its
negotiations for the purchase of Merchandise. Federated will test and inspect
the Products at no additional charge to the extent and in a manner substantially
consistent with the procedures applied to merchandise purchased by Federated for
sale in its own stores. Any additional testing or inspection win he performed as
reasonably requested by the Company at the Company's sole cost and expense.
(c) Standard of Care of Federated. Federated will use commercially
reasonable efforts to perform its duties and responsibilities hereunder, which
efforts will be deemed to have been taken to the extent that Federated uses the
same standard of care as it applies with respect to the sourcing of merchandise
for sale in its own stores.
(d) Limitations on Federated's Duties. Attached hereto as Exhibit A is
Federated's policy as of the date hereof with respect to the purchase of private
label merchandise for its own stores (the "Vendor Policy"). The Vendor Policy,
as amended from time to time, with respect to the application for the purchase
of private label merchandise for its own stores will apply to purchases of
Products hereunder. Federated reserves the right, in its sole discretion, to
refuse to source or procure Products should Federated determine that performance
may violate any applicable law or the Vendor Policy. In such cases, Federated
will notify the Company in writing as soon as reasonably practicable, but no
later than the date that Federated's own divisions and subsidiaries are so
notified (if applicable). In addition, Federated will notify the Company in
writing of any change in the Vendor Policy as far in advance as is reasonably
possible under the circumstances. Notwithstanding the foregoing, Federated may
not apply any change in the Vendor Policy to orders which are outstanding on the
date such change is instituted. The Company may purchase Merchandise from a
third party following Federated's written refusal to procure such Merchandise
and no compensation will be payable to Federated for such purchases.
(e) Forecasts by the Company. In order to facilitate Federated's sourcing
of Products, the Company will provide Federated from time to time and as
reasonably requested by Federated with forecasts of the quantity and type of
Merchandise the Company intends to purchase through Federated in the reasonably
foreseeable future, but in no event more than six months ahead of placing
orders.
(f) Maintenance of Records by Federated. Federated will provide to the
Company the summary and detailed invoice information with respect to each
purchase order and maintain reasonably complete and accurate records of all
Products ordered, in process, finished and/or in transit sufficient to support
such invoices and, at the request of the Company, provide reasonable access to,
or copies of, such records.
(g) Post-Order Responsibility. Once a purchase order has been submitted to
Federated, such order may not be substantially modified or cancelled by the
Company (unless the vendor agrees to the modification or cancellation, or the
vendor fails to comply with the terms of such purchase order, in which case the
rights of the Company will be governed by the terms of the purchase order
submitted to Federated) without Federated's prior written consent,
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which Federated will be obligated to give only if, upon the application of
commercially reasonable efforts, the corresponding order placed by Federated
with the vendor is so modified or canceled. In any event, all costs and expenses
incurred by Federated and paid to third parties resulting from any Company
modification or cancellation will be borne solely by the Company. Federated will
promptly advise the Company of all anticipated problems or delays in production
and/or delivery and will use commercially reasonable efforts to resolve any such
problems with its vendors. Federated will process any claims or disputes over
the quality, quantity or delivery of Products in accordance with Section 4(d)
and credit the Company with any financial settlement, payment or other financial
concession by a vendor actually effected in connection therewith.
(h) Delivery of Products. Delivery of Products by Federated will be deemed
complete and the risk of loss for such Products will pass to the Company, upon
delivery to (i) the distribution center specified by the Company located at
Carlstadt, New Jersey, South River, New Jersey or at another distribution center
used by the Company that is located within 50 miles of Carlstadt, New Jersey, or
(ii) another distribution center used hereafter by the Company that is located
farther than 50 miles from Carlstadt, New Jersey, provided that if the Company
asks Federated to deliver Merchandise to a distribution center that is farther
than 50 miles from Carlstadt, New Jersey, it will reimburse Federated for any
additional out-of-pocket costs incurred in connection with the delivery thereto
not included in the Loaded Landed Cost (as defined in Section 4(b)) for such
Products. Notwithstanding the foregoing, the clearance of Products through
customs in foreign and domestic ports will be the responsibility of Federated
and Federated's out-of-pocket costs to third parties associated therewith will
be included in the Loaded Landed Cost for such Products.
2. Involvement by Federated Personnel. Federated will provide personnel
and other resources to the provision of services hereunder to the extent
provided by Federated immediately prior to the date hereof, subject to
adjustment as Federated reasonably determines to be appropriate as a result of
changes in technology and the volume of Products ordered by the Company
hereunder.
3. This Section Intentionally Left Blank.
4. Commission: Method or Payment. (a) Commission. In consideration for the
services provided by Federated hereunder, the Company will pay Federated a
commission (the "Commission") equal to five percent (5%) of the Product Cost.
This Commission rate will apply to all Products with shipping dates on or after
the effective date hereof. For purposes of this Agreement, "Product Cost" means
Federated's actual, direct cost charged by third party vendors for the
manufacture of Products, but does not include the cost of any letter of credit
or other credit support required in connection with the purchase of Products by
Federated on behalf of the Company hereunder, which cost will be borne by
Federated ("Credit Cost").
(b) Loaded Landed Cost. The price charged by Federated to the Company for
Products will be Federated's Loaded Landed Costs for the Products. The "Loaded
Landed Cost" for each shipment of Products will be the Product Cost plus all
costs associated with importing the Products into the United States, including
but not limited to the cost of duty, taxes, warehousing, assessments, freight,
inland transportation, insurance, consolidation and
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deconsolidation and the actual, out-of-pocket administrative costs and expenses
paid to third parties in connection with the Products, but will not include
Credit Cost. Federated will use commercially reasonable efforts to obtain the
most favorable rates for the foregoing third-party costs.
(c) Payment for Products. On the later of (i) the date on which Products
are delivered to a loading vessel for shipment to the Company and (ii) the date
designated in the purchase order for delivery of such Products, Federated will
notify the Company of the total amount due to Federated for the Loaded Landed
Cost for such Products. Subject to the conditions in this paragraph (c), payment
of the Loaded Landed Cost for Products plus all Commissions due and payable
thereon by the Company will be due within fifty (50) days after Federated's
presentation to the Company of Federated's invoice therefor (the "Payment
Deadline") and will be made by wire transfer of immediately available funds to
an account designated by Federated, without any set-off or deduction of any kind
whatsoever. Federated may not present its invoice for the Loaded Landed Cost
until the designated shipping date for the Products. Additionally, the Payment
Deadline will be extended until the date of the Company's receipt of the
Products, if for any reason the Company's receipt of the Products is delayed
beyond the normal Payment Deadline. Any amounts not paid by the applicable
Payment Deadline ("Arrearages") will accrue interest daily from such date until
paid in full at an annual rate equal to the lesser of (x) the prime rate
announced by BancBoston, N.A. ("BancBoston") from time to time plus 0.5% and (y)
the maximum rate allowed by law. At any time that Arrearages aggregate $250,000
or more, Federated will be entitled, upon five calendar days' written notice to
the Company, to suspend its services under this Agreement (including without
limitation delivery of any Products), without any liability therefor, until such
Arrearages are paid in full. Title for Products will pass to the Company upon
payment in full to Federated of the Loaded Landed Cost for such Products plus
all Commissions and interest due thereon pursuant to this Section 4.
(d) Claims Procedure. The Company acknowledges that its sole recourse for
all claims, whether for shortages, nonconformance, defects, delays or otherwise,
will be governed by Federated's standard claims policy for its own divisions and
subsidiaries (which policy as of the date hereof is set forth on Exhibit B), as
amended form time to time. Federated will notify the Company in writing as far
in advance as reasonably possible under the circumstances of any change in such
claims policy; provided, however, that no such change will be effective with
respect to Products shipped to the Company prior to the date any such change is
instituted.
5. Term. This Agreement will be effective from the date of its execution
and will remain in effect for until July 31, 2008, unless earlier terminated as
provided herein (the "Term").
6. Termination. (a) Termination by Mutual Agreement. This Agreement may be
terminated at any time by the mutual agreement of Federated and the Company.
(b) Termination by Federated or the Company. Either Federated or the
Company may terminate this Agreement, effective immediately upon giving the
other written notice of termination, if (i) the other party breaches in any
material respect this Agreement or fails to perform any material obligation
hereunder and such breach or failure is not curable or, if curable, is not cured
within 10 calendar days after written notice thereof from the non-breaching
party (a
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"Material Breach"`); or (ii) if the other party ceases, or admits in writing its
intention to cease, the conduct of its business; or (iii) if a Bankruptcy Event
has occurred with respect to the other party. For purposes of this Agreement,
(A) the failure of the Company to pay any amount in excess of $250,000 which is
due Federated under this Agreement (including in determining the $250,000
amount, interest due under Section 4) and which has not been paid within ten
calendar days after written notice thereof from Federated will be deemed a
Material Breach and (B) except as provided in Section 11, the sole recourse and
remedy of any party with respect to a Material Breach by another will be
termination of this Agreement pursuant to Section 6(b). As used herein,
"Bankruptcy Event" means (1) if the party in question makes any involuntary
assignment of either its assets or its business for the benefit of creditors,
(2) if a trustee or receiver is appointed to administer or conduct such party's
business affairs, (3) if such party is adjudged in any legal proceeding to be a
debtor in bankruptcy, or (4) if any insolvency proceedings are commenced against
such party and not terminated or dismissed within 60 calendar days.
(c) Termination by Federated. Federated may also terminate this Agreement
upon ninety (90) days prior written notice to Company if, during any twelve (12)
month period from August 1 to July 31, commencing on August 1, 2003, the Company
fails to order Products having at least thirty million dollars ($30,000,000) in
Product Costs through Federated.
(d) Effects of Termination. In the event of the expiration or termination
of this Agreement for any reason, the parties will have no further liability or
obligation to one another under this Agreement except as otherwise provided
herein. Notwithstanding the foregoing, the provisions of this Agreement will
govern the rights and obligations of the parties with respect to all orders for
Products placed prior to the termination of this Agreement, and in no event will
the termination of this Agreement relieve any party hereto of any obligation
hereunder which existed prior to such termination with respect to such orders
that were placed prior thereto.
(d) Return of Materials. In the event of the expiration or any termination
of this Agreement for whatever reason, all samples, books, records, designs and
materials of any kind, and all copies thereof of either party held by the other
party, will be returned to the owner thereof within 15 calendar days following
sale or other disposition of all Products delivered pursuant to this Agreement.
7. This Section Intentionally Left Blank.
8. This Section Intentionally Left Blank.
9. Mutual Confidentiality. No party will disclose to any third party any
trade secret or confidential information that belongs to any other party that
was disclosed pursuant to this Agreement. For purposes of this Agreement, the
terms "confidential information" and "trade secrets" will include all
information of any nature and in any form which is owned by Federated or the
Company (or their affiliates) and which is not publicly available or generally
known to persons engaged in business similar to that of Federated and the
Company (either on or after the date of this Agreement), including but not
limited to the Federated materials referenced in Section 6(e), the Fed Brands
System and all practices, processes, methods, know-how and other facts related
to sales, advertising, promotions, financial matters, suppliers, supplier lists,
customers, customer lists, or
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customers' purchases of goods or services from Federated or the Company, and all
other secrets and information of a confidential and proprietary nature;
provided, however, that "confidential information" and "trade secrets" will not
include (i) information that any party is required to disclose under applicable
law or the rules of any exchange on which the securities of such party are
traded. Upon the expiration of the Term, each party will cease to use the other
party's confidential information and trade secrets (including without limitation
the use by the Company of the Fed Brands System), and all tangible confidential
information and trade secrets that have been provided to a party by another
party (including without limitation all manuals, documents, software and other
materials and information relating to the Fed Brands System) will be returned to
the party that provided such information or trade secrets.
10. Copyright Patent and Trademark Rights. Each of the parties hereto
reserves all property, including copyright, patent, and trademark, rights in all
of their respective materials, publications, research, software, data, devices,
designs, concepts and trade names in connection with the services provided to
the Company.
11. Indemnification; Limitation of Liability. (a) Notwithstanding any
other provision hereof, Federated will have no liability for, and the Company
hereby agrees to indemnify, defend and hold Federated harmless from any loss,
claim, damage, liability, cost or expense (collectively, "Damages") arising out
of or relating to the performance of its services hereunder, including without
limitation liability with respect to (i) design, development, supply,
production, .quality or performance of Products purchased by the Company (and
the Company will pay all costs and expenses relating to defective Products and
the return thereof to ultimate resources); (ii) infringement of the Products on
any trademark, copyright or other rights of third parties; (iii) any violation
of the taws of any state, the United States or any other country, except those
laws with which Federated is responsible for compliance on Company's behalf in
the course of providing services hereunder; (iv) injury to person or damage to
property caused by or associated with Products purchased by the Company; of (v)
failure of any such Products to comply with specifications or with any express
or implied warranties, unless in the case of clause (i), (ii), (iii), (iv) or
(v) it is demonstrated by the Company that such Damages were occasioned by
Federated's gross negligence or willful misconduct; provided., however, that the
Company will not be obligated to demonstrate negligence or willful misconduct on
the pan of Federated in order to establish a Material Breach by Federated for
purposes of Section 6(c).
(b) Notwithstanding any other provision hereof, the Company will have no
liability for, and Federated hereby agrees to indemnify, defend and hold Company
harmless from Damages arising out of or relating to (i) any violation of the
laws of any state, the United States or any other country with which Federated
is responsible for complying on Company's behalf under this Agreement; (ii)
Federated's placement of orders, or taking of actions on Company's behalf which
were not authorized by the Company, or (iii) Federated's gross negligence or
willful misconduct.
(c) Neither the Company nor Federated will be liable for delays in the
performance of this Agreement due to force majeure and causes beyond such
party's reasonable control (each, an "Act of God"), including without limitation
fires, strikes, disputes, war, civil commotion, epidemics, floods, accidents,
delays, shortages and laws, regulations, or requests of the
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government of any state, the united States or any other government. However,
either the Company or Federated may terminate this Agreement upon prior written
notice in the event that performance of this Agreement is rendered impossible
for 90 consecutive calendar days due to any Act of God.
(d) EXCEPT AS OTHERWISE PROVIDED HEREIN, FEDERATED EXPRESSLY DISCLAIMS ALL
WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
12. Status of Relationship. Federated's relationship with the Company
under this Agreement is solely that of an independent contractor, and nothing
contained in this Agreement will be deemed or construed (a) to create a
partnership or joint venture between the Company and Federated, (b) to cause
Federated to be responsible in any way for the debts, liabilities or obligations
of the Company, or (c) to give any party the authority to bind or act for the
other in any respect, except as specifically set forth herein.
13. General Provisions. (a) Assignment. Neither this Agreement nor any of
the rights, interest or obligations hereunder may be assigned or delegated by
any party without the prior written consent of the other parties, provided,
however, that (i) consent of the Company will not be required prior to an
assignment by Federated of its rights and duties hereunder to a subsidiary or
affiliate thereof to which an or substantially all of the assets and operations
of the Federated merchandising group for all of Federated are transferred, in
which event Federated will have no further obligations hereunder, and (ii)
consent of Federated will not be required prior to an assignment by the Company
of its rights and duties hereunder to a successor, subsidiary or affiliate
thereof to which an or substantially all of the Company's retail apparel
business are transferred, in which case the Company will have no further
obligations hereunder.
(b) Notices. All notices that are required or may be given pursuant to
this Agreement must be in writing and delivered personally, by a recognized
courier service, by a recognized overnight delivery service, by fax or by
registered or certified mail. postage prepaid, to the parties at the following
addresses (or to the attention of such other person or such other address as any
party may provide to the other parties by notice in accordance with this Section
13):
If to Federated: Federated Merchandising Group
00 Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx
With a copy to:
Federated Department Stores, Inc.
0 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
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If to the Company:
Aeropostale, Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx,
Chairman and Chief Executive Officer
Any such notice or other communication will be deemed to have been given and
received (whether actually received or not) on the day it is personally
delivered or delivered by courier or overnight delivery service or sent by fax
or, if mailed, when actually received; provided that if such notice or other
communication is sent by fax, a copy of such notice or communication is received
by the intended recipient by courier, overnight delivery or mail within ten
calendar days following the receipt of the facsimile transmission.
(c) Binding Effect. This Agreement will be binding upon and inure to the
benefit of the parties hereto and their successors, legal representatives and
permitted assigns.
(d) Third-Party Beneficiaries. This Agreement is made solely and
specifically between and for the benefit of the parties hereto and their
respective successors and assigns. subject to the express provision hereof
relating to successors and assigns. Except for such parties, no other person
whatsoever will have any rights, interest or claims hereunder or be entitled to
any benefits under or on account of this Agreement as a third-party beneficiary
or otherwise.
(e) Waiver. No failure by any party to insist upon the strict performance
of any duty, agreement or condition of this Agreement or to exercise any right
or remedy consequent upon a breach thereof will constitute a waiver of any such
breach or any other duty, agreement or condition.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, all of which together will constitute one agreement binding on all
the parties hereto, notwithstanding that all such parties are not signatories to
the original or the same counterpart.
(g) Entire Agreement: Amendment. This Agreement contains the entire
understanding of the parties relating to the subject matter hereof and
supersedes all prior written or oral and all contemporaneous oral agreements and
understandings relating to the subject matter hereof. This Agreement cannot be
terminated, modified or amended, except in writing signed by all parties hereto.
(h) Significance of Headings. Section headings contained herein are solely
for the purpose of aiding in speedy location of the subject matter of this
Agreement and are not in any sense to be given weight in the construction of
this Agreement. Accordingly, in case of any questions in the construction of
this Agreement, this Agreement is to be construed as though such section heading
had been omitted.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have executed this Agreement as of the date first above written.
FEDERATED DEPARTMENT STORES, INC.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: President & C.O.O. -FMG
AEROPOSTALE, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman & CEO
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