FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement is dated as
of May 31, 1996 by and among EPISODE USA, INC., debtor and debtor in possession,
a Delaware corporation ("Seller"), MOTHERS WORK, INC., a Delaware corporation
("Mothers Work"), and T3 ACQUISITION, INC. a Delaware corporation and
wholly-owned subsidiary of Mothers Work ("T3").
BACKGROUND
Seller, Mothers Work and T3 are parties to an Asset Purchase
Agreement dated as of April 25, 1996 (the "Original Agreement") pursuant to
which, subject to Bankruptcy Court approval, Seller agreed to sell to T3, and T3
agreed to buy from Seller, certain assets of Seller related to the operation of
Seller's business of selling women's clothing under various trademarks,
including Episode, Excursion and Episode Studio, in retail stores operated under
the name "Episode". The parties now desire to amend the Original Agreement,
inter alia, to provide that Seller will sell the Assets to Mothers Work rather
than T3 and to include as part of the Inventory which will be sold by Seller to
Mothers Work certain inventory located in Seller's warehouse. Capitalized terms
used in this Amendment, and not otherwise defined, shall have the meanings
ascribed to them in the Original Agreement.
AGREEMENTS
The parties hereto, intending to be legally bound, hereby
agree as follows:
1. Mothers Work as Purchaser. The Original Agreement is hereby
amended so that Mothers Work, rather than and in substitution for T3, shall
purchase and accept delivery of the Assets from Seller pursuant to the terms of
the Original Agreement. In furtherance thereof, wherever the term "Purchaser" is
used in the Original Agreement other than in Section 6 thereof, such term shall
be deemed from and after the date hereof to reference Mothers Work and not T3.
Mothers Work expressly agrees to assume, be bound by and perform all of the
obligations of Purchaser under the Original Agreement.
2. Additional Inventory. The parties have agreed that certain
inventory which is currently located in Seller's warehouse or Seller's Orlando
Florida store (the "Additional
Inventory") shall constitute Inventory and shall be sold by Seller to Mothers
Work and acquired by Mothers Work from Seller, which Inventory is more
particularly identified on Schedule 2 to this Amendment. Seller represents and
warrants that all Additional Inventory constitutes current (spring/summer)
season goods.
3. Coordinating Amendments. In conjunction with the
designation of Mothers Work as Purchaser, the following amendments to the
Original Agreement are hereby made:
(a) Schedule 8.5 is hereby amended in its entirety to read
as Schedule 3(a) hereto to effect the substitution of Mothers Work for T3 as
Licensee under said License Agreement.
(b) Section 8.7 relating to Mothers Work's Guarantees is
hereby deleted as not required in light of Mothers Work's direct assumption of
responsibility for performance and payment of all of the obligations to be
guaranteed by the Guarantees, and the Guarantees shall terminate and be null and
void effective with the execution of this Amendment.
4. Balance of Original Agreement. All other terms and
conditions of the Original Agreement not specifically amended by this Amendment
shall remain in full force and effect and are hereby ratified and confirmed by
the parties to the Original Agreement.
IN WITNESS WHEREOF, Seller, Mothers Work and T3 have caused
this First Amendment to Asset Purchase Agreement to be executed by their
respective authorized officers effective the day and year first above written.
EPISODE USA, INC.
BY: /s/ Xxxx Xxxx
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MOTHERS WORK, INC.
BY: /s/ Xxxxxxx Xxxxxxxx
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T3 ACQUISITION, INC.
BY: /s/ Xxxxxxx Xxxxxxxx
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