1
EXHIBIT 10.51
FIRST AMENDMENT TO THE LOGISTICS SERVICES AGREEMENT
THIS FIRST AMENDMENT ("FIRST AMENDMENT") TO THE LOGISTICS SERVICES
AGREEMENT is made and entered into effective as of the 1st day of May, 1999, by
and between DECORA, INCORPORATED, a Delaware corporation ("DECORA"), and FEDERAL
WHOLESALE GROUP, INC., an Ohio corporation, d/b/a Pyramid Logistics Services
("CONTRACTOR").
WITNESSETH
WHEREAS, as of September 30, 1998, DECORA and CONTRACTOR entered into
the "Logistics Services Agreement" (the "Agreement"), whereby, among other
things, CONTRACTOR agreed to provide certain Transportation Services and
Warehouse Services (as such terms are defined in the Agreement) to DECORA;
WHEREAS, among its duties under the Agreement CONTRACTOR is to secure or
have available certain facilities, space and/or personnel at specified warehouse
locations identified in the Agreement (defined in the Agreement as the
"DESIGNATED LOCATIONS");
WHEREAS, in or about April, 1999, after DECORA and CONTRACTOR entered
into the Agreement, CONTRACTOR agreed to secure certain facilities, space and
personnel at a mutually acceptable warehouse location in Atlanta, Georgia, which
will constitute an additional DESIGNATED LOCATION under the Agreement, and
CONTRACTOR and DECORA have agreed to expand the amount of space that DECORA
intends to use at the West Coast Facility (as defined in the Agreement). These
developments necessitate changes to the Agreement, as well as to the lease of
the West Coast Facility;
WHEREAS, DECORA and CONTRACTOR enter into this First Amendment to amend
the Agreement so that it adequately sets forth the parties' agreements and
undertakings on these matters, and to confirm and clarify certain other
obligations of CONTRACTOR under the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereby agree as follows:
I. AMENDMENTS TO SPECIFIC ARTICLES AND SECTIONS OF THE AGREEMENT.
A. Section 1.1(a)(i). Section 1.1(a)(i) of Article I of the
Agreement is hereby deleted in its entirety and replaced with the following:
1.1 Duties of the Contractor.
a. CONTRACTOR shall have the following duties (in
addition to other rights
2
and obligations specified herein):
i. Designated Locations. CONTRACTOR will secure
three DESIGNATED LOCATIONS, the first located at 0000 Xxxxx
Xxxxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxxx Xxxxxxxxx, Xxxxxxxxxx,
00000 (the "West Coast Facility"), the second located at 000 Xxxx
Xxxxx, Xxxxxx, Xxxx 00000 (the "Aurora Facility"), and the third
located at Southside Distribution Center of Atlanta Tradeport,
0000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxx X, Xxxxxxx (Xxxxxxxxx), Xxxxxxx
00000 (the "Atlanta Facility"), for the providing of Services to
DECORA in connection with the distribution of Products, as
provided for in Section II below.
B. Section 3.2(a). Section 3.2(a) of the Agreement is hereby deleted
in its entirety and replaced with the following:
3.2 Facilities.
a. CONTRACTOR shall be responsible for leasing all
facilities at the DESIGNATED LOCATIONS and shall hold such leases
in its name. DECORA shall have the right to approve the terms of
all leases; provided that (i) the terms of (A) that certain
"Lease" dated as of August 10, 1990, by and between CONTRACTOR
and DDE Investments Corporation, as amended by that certain
"First Amendment of Lease" dated as of April 25, 1993, by and
between CONTRACTOR and Developers Diversified Realty Corporation,
as successor-in-interest to DDE Investments Corporation, and as
further amended by that certain "Second Amendment to Lease" dated
as of January 21, 1994, by and between CONTRACTOR and Developers
Diversified Realty Corporation, as successor-in-interest to DDE
Investments Corporation, for the Aurora Facility (the "Aurora
Lease"), (B) that certain "Lease Agreement" dated as of October
28, 1998, by and between CONTRACTOR and Aetna Life Insurance
Company, as amended by that certain "First Amendment to Lease
Agreement" dated as of April 29, 1999, and (C) that certain
"Atlanta Standard Industrial Net Lease Single or Multi-Tenant
Building", dated as of May 28, 1999, by and between CONTRACTOR
and the Trustees under the Will and of the Estate of Xxxxx
Xxxxxxxx, Deceased, are hereby approved and (ii) any such
required approval shall not be unreasonably withheld. CONTRACTOR
shall have primary responsibility for site selection and facility
maintenance activities. CONTRACTOR shall be solely responsible
for any and all damages, losses, liabilities, obligations, costs
and expenses (including attorneys' fees) which CONTRACTOR suffers
or incurs as a result of any act or omission of its employees,
agents or subcontractors, including any such act or omission
which results in a breach of a lease by CONTRACTOR; provided,
however, that the foregoing shall not apply if CONTRACTOR'S
breach of any lease is caused primarily by DECORA'S acts or
omissions in breach of this Agreement. The parties will append
separate
2
3
addenda to this Agreement for each new Designated Location that
is to be governed by this Agreement's terms, which addenda will
become part of this Agreement and will set forth any
facility-specific terms or conditions for such new DESIGNATED
LOCATION.
C. Section 3.2(b). Section 3.2(b) of the Agreement is hereby
deleted in its entirety and replaced with the following:
b. The CONTRACTOR shall not enter into any further
leases in connection with this Agreement, and shall not amend,
supplement, modify or otherwise alter any leases into which it
already has entered (including, but not limited to, the Aurora
Lease) or any lease into which it enters or has entered pursuant
to this Agreement (including, but not limited to, the lease for
the West Coast Facility and the lease for the Atlanta Facility)
in any manner that could, may, or will alter, increase, add to,
or otherwise affect any rent or any other monetary obligations of
any kind or description for which such lease provides, without
the prior, express, written consent of DECORA (which consent
shall not be unreasonably withheld).
Section 3.2(c). The first sentence of Section 3.2(c) of the
Agreement is hereby deleted in its entirety and replaced with the following:
c. The CONTRACTOR shall initially provide storage
space in the DESIGNATED LOCATION as indicated in Schedule B
attached hereto (the "Initial Storage Space"), which shall be
used exclusively for the storing and handling of Products
delivered to the DESIGNATED LOCATIONS, and throughout the term
hereof shall provide approximately 50,000 square feet of storage
space at the West Coast Facility, approximately 60,000 square
feet at the Aurora Facility, and approximately 50,000 square feet
at the Atlanta Facility.
The remainder of Section 3.2(c) of the Agreement is unaffected.
D. Section 4.3. Section 4.3 of the Agreement is hereby deleted in
its entirety and replaced with the following:
4.3 Transfer Rights With Respect to Certain Designated
Locations.
a. Upon termination of this Agreement prior to
expiration of the Term, the CONTRACTOR and DECORA agree that with
respect to the West Coast Facility, the CONTRACTOR shall assign
its rights as lessee under the applicable lease to DECORA
(including any purchase options provided for therein) and DECORA
will either (i) assume such lease and all of CONTRACTOR'S
liabilities thereunder, or (ii) pay to
3
4
CONTRACTOR an amount equal to CONTRACTOR'S then remaining
liabilities thereunder (with respect to the Initial Storage Space
and any Additional Storage Space that DECORA and CONTRACTOR
agreed prior to the termination of this Agreement would be used
at the West Coast Facility for purposes of warehousing DECORA'S
Products); provided, however, that this assignment, assumption,
or payment shall not occur if a material default exists under the
applicable lease for the West Coast Facility (unless DECORA, in
its sole discretion, gives its express, written consent to such
assignment, after DECORA receives written notice that the default
exists).
b. Upon expiration of the Term of this Agreement, the
CONTRACTOR and DECORA agree that with respect to the West Coast
Facility, the CONTRACTOR will, at DECORA'S option (exercisable on
or prior to the ninetieth (90th) day prior to the date of such
expiration), assign its rights as lessee under the applicable
lease to DECORA (including any purchase options provided for
therein), in which event DECORA will either (i) assume such lease
and all of CONTRACTOR'S liabilities thereunder, or (ii) pay to
CONTRACTOR an amount equal to CONTRACTOR'S then remaining
liabilities thereunder (with respect to the Initial Storage Space
and any Additional Storage Space that DECORA and CONTRACTOR
agreed prior to the expiration of this Agreement would be used at
the West Coast Facility for purposes of warehousing DECORA'S
Products).
c. If DECORA assumes the applicable lease of the West
Coast Facility pursuant to Sections 4.3(a) or 4.3(b), at DECORA'S
option (exercisable (x) in the case of Section 4.3(a), on or
prior to the date upon which this Agreement terminates, or (y) in
the case of Section 4.3(b), concurrently with the 90-day notice
specified therein), it can require CONTRACTOR to sublet, and upon
the exercise of such option CONTRACTOR shall sublet (to the
extent permitted by the applicable lease of the West Coast
Facility), any space at the West Coast Facility in excess of that
Initial Storage Space and any Additional Storage Space that
DECORA and CONTRACTOR agreed prior to termination or expiration
of this Agreement (as the case may be) would be used for purposes
of warehousing DECORA'S Products. The rent and other obligations
CONTRACTOR shall owe to DECORA under such sublease each month
shall be equal to the difference between (i) the total amount of
rent and other obligations owed by the tenant under the lease for
such month, and (ii) the total amount of rent and other
obligations owed by the tenant for such month with respect to
that Initial Storage Space and any Additional Space that DECORA
and CONTRACTOR agreed prior to the expiration or termination of
this Agreement would be used at the West Coast Facility for
purposes of warehousing DECORA'S Products. CONTRACTOR will use
its best efforts to cause the applicable lease of the West Coast
Facility to permit such sublease to occur.
d. Upon termination of this Agreement prior to
expiration of the Term,
4
5
the CONTRACTOR and DECORA agree that with respect to the Atlanta
Facility, the CONTRACTOR shall assign its rights as lessee under
the applicable lease to DECORA (including any purchase options
provided for therein) and DECORA will either (i) assume such
lease and all of CONTRACTOR'S liabilities thereunder, or (ii) pay
to CONTRACTOR an amount equal to CONTRACTOR'S then remaining
liabilities thereunder (with respect to the Initial Storage Space
and any Additional Storage Space that DECORA and CONTRACTOR
agreed prior to the termination of this Agreement would be used
at the Atlanta Facility for purposes of warehousing DECORA'S
Products); provided, however, that this assignment, assumption,
or payment shall not occur if a material default exists under the
applicable lease for the Atlanta Facility (unless DECORA, in its
sole discretion, gives its express, written consent to such
assignment, after DECORA receives written notice that the default
exists).
e. Upon expiration of the Term of this Agreement, the
CONTRACTOR and DECORA agree that with respect to the Atlanta
Facility, the CONTRACTOR will, at DECORA'S option (exercisable on
or prior to the ninetieth (90th) day prior to the date of such
expiration), assign its rights as lessee under the applicable
lease to DECORA (including any purchase options provided for
therein), in which event DECORA will either (i) assume such lease
and all of CONTRACTOR'S liabilities thereunder, or (ii) pay to
CONTRACTOR an amount equal to CONTRACTOR'S then remaining
liabilities thereunder (with respect to the Initial Storage Space
and any Additional Storage Space that DECORA and CONTRACTOR
agreed prior to the expiration of this Agreement would be used at
the Atlanta Facility for purposes of warehousing DECORA'S
Products).
f. If DECORA assumes the applicable lease of the
Atlanta Facility pursuant to Sections 4.3(d) or 4.3(e), at
DECORA'S option (exercisable (x) in the case of Section 4.3(d),
on or prior to the date upon which this Agreement terminates, or
(y) in the case of Section 4.3(e), concurrently with the 90-day
notice specified therein), it can require CONTRACTOR to sublet,
and upon the exercise of such option CONTRACTOR shall sublet (to
the extent permitted by the applicable lease of the Atlanta
Facility), any space at the Atlanta Facility in excess of that
Initial Storage Space and any Additional Storage Space that
DECORA and CONTRACTOR agreed prior to termination or expiration
of this Agreement (as the case may be) would be used for purposes
of warehousing DECORA'S Products. The rent and other obligations
CONTRACTOR shall owe to DECORA under such sublease each month
shall be equal to the difference between (i) the total amount of
rent and other obligations owed by the tenant under the lease for
such month, and (ii) the total amount of rent and other
obligations owed by the tenant for such month with respect to
that Initial Storage Space and any Additional Space that DECORA
and CONTRACTOR agreed prior to the expiration or termination of
this Agreement would be used at the Atlanta Facility for purposes
of warehousing DECORA'S Products. CONTRACTOR will use its best
efforts to
5
6
cause the applicable lease of the Atlanta Facility to permit such
sublease to occur.
g. CONTRACTOR covenants that any and all rights it
assigns as lessee under either or both of the applicable leases
described in Section 4.3 above, and any and all rights and
property interests of any kind or description to which the lessee
under such applicable lease is or may be entitled, shall be free
and clear of any and all liens, claims, security interests and
encumbrances of any kind or description of CONTRACTOR or of any
third party (except for CONTRACTOR'S then remaining liabilities
to the landlord under such applicable lease); provided, however,
that notwithstanding any other term or provision of this
Agreement (including, without limitation, Sections 4.3(a) and
4.3(d)), following any assignment to DECORA by CONTRACTOR of any
lease pursuant to this Agreement, DECORA shall retain any and all
claims, actions, demands, or causes of action it then has or may
have as against CONTRACTOR, including, but not limited to, any
claims, actions, demands, or causes of action arising from or
relating to any breach by CONTRACTOR of any such lease or of this
Agreement.
E. Section 6.1(b). Section 6.1(b) of the Agreement is hereby deleted
in its entirety and replaced with the following:
b. CONTRACTOR shall secure the DESIGNATED LOCATIONS
and commence to provide Services for DECORA at each of the
specified DESIGNATED LOCATIONS no later than the dates mentioned
below (hereinafter referred to as "Start Date") for each
DESIGNATED LOCATION:
i. October 1, 1998 for the Aurora Facility;
ii. November 16, 1998 for the West Coast Facility;
and
iii. August 15, 1999 for the Atlanta Facility.
F. Section 7.1 and 7.4. Section 7.1(a)(ii) is amended to change the
term "annual Warehouse Operating Budget" in the first line thereof to "Annual
Warehouse Operating Budget". In addition, Section 7.4 is revised to change the
phrase "Annual Warehouse Operating budget" in the sixth line thereof to "Annual
Warehouse Operating Budget".
G. Section 12.1. Section 12.1 of the Agreement is hereby deleted in
its entirety and replaced with the following:
12.1 Generally.
Although it is intended that CONTRACTOR will operate three
DESIGNATED
6
7
LOCATIONS to provide Services for DECORA, under certain
circumstances described in this Section and elsewhere herein, the
Agreement may expire or be terminated with respect to one or two
DESIGNATED LOCATIONS, while remaining in effect with respect to
one or both of the others.
H. Section 12.2. Section 12.2 of the Agreement is hereby deleted in
its entirety and replaced with the following:
12.2 Term.
The term of this Agreement is the period from the date of
this Agreement to and including August 31, 2002, plus the period
of any renewals entered into in accordance herewith (the "Term").
I. Section 12.4(b)(iv)(E). Section 12.4(b)(iv) is amended to add a
new subparagraph (E) immediately after subparagraph (D), which subparagraph (E)
provides as follows:
(E) with respect to the Atlanta Facility,
the CONTRACTOR will assign its rights as lessee under the
applicable lease to DECORA (including any purchase options
provided for therein) and DECORA will either (A) assume such
lease and all of CONTRACTOR'S liabilities thereunder or (B) pay
to CONTRACTOR an amount equal to CONTRACTOR'S then remaining
liabilities thereunder (with respect to the Initial Storage Space
and any Additional Storage Space that DECORA and CONTRACTOR
agreed prior to the termination of this Agreement would be used
for purposes of warehousing DECORA'S Products); provided,
however, that this assignment, assumption, and payment shall not
occur if a material default exists under the applicable lease for
the Atlanta Facility (unless DECORA, in its sole discretion,
gives its express, written consent to such assignment, after
DECORA receives written notice that the default exists). If
DECORA assumes the applicable lease of the Atlanta Facility,
pursuant to this Section, at DECORA'S option (exercisable
concurrently with the 180-day notice specified above), it can
require CONTRACTOR to sublet, and upon the exercise of such
option CONTRACTOR shall sublet (to the extent permitted by the
applicable lease of the Atlanta Facility), any space at the
Atlanta Facility in excess of that Initial Storage Space and any
Additional Storage Space that DECORA and CONTRACTOR agreed prior
to termination of this Agreement would be used at the Atlanta
Facility for purposes of warehousing DECORA'S Products. The rent
and other obligations CONTRACTOR shall owe to DECORA under such
sublease each month shall be equal to the difference between (i)
the total amount of rent and other obligations owed by the tenant
under the lease for such month, and (ii) the total rent and other
obligations owed for such month with respect to that Initial
Storage Space and any Additional Storage Space that DECORA and
CONTRACTOR agreed prior to the
7
8
termination of this Agreement would be used at the Atlanta
Facility for purposes of warehousing DECORA'S Products.
CONTRACTOR will use its best efforts to cause the applicable
lease of the Atlanta Facility to permit such sublease to occur.
J. Section 12.5(c)(ii). Section 12.5(c)(ii) of the Agreement is
hereby deleted in its entirety and replaced with the following:
ii. CONTRACTOR will grant or arrange for DECORA
to receive non-exclusive, royalty free licenses to operate
(at each of the West Coast Facility and Atlanta Facility)
all computer software and programs utilized in the
rendition of Services (at the expired or terminated
DESIGNATED LOCATIONS) for no less than six (6) months
after the date of such expiration or termination, if
permitted by the licensors thereof.
II. ADDITIONAL PROVISIONS RELATING TO THE ATLANTA FACILITY.
A. Initial and Additional Storage Space at the Atlanta Facility.
Contractor initially shall provide storage space at the Atlanta Facility
as indicated in Amended Schedule B attached hereto (defined in the Agreement, in
so far as the Agreement (as amended) pertains to the Atlanta Facility, as the
"Initial Storage Space"), which will be used exclusively for the storage and
handling of Products delivered to the Atlanta Facility. In the event the Parties
draft or mutually agree in a writing signed by both Parties to increase the
amount of space dedicated to the storing and handling of Products at the Atlanta
Facility (as compared to the Initial Storage Space for the Atlanta Facility),
DECORA shall pay CONTRACTOR for such additional space (defined in the Agreement
as the "Additional Storage Space") in accordance with the rates set forth in
Amended Schedule C hereof (or such other rates to which DECORA and CONTRACTOR
may agree in writing), and such Additional Storage Space for the Atlanta
Facility shall be subject to the other terms and conditions of the Agreement.
B. Funded Equipment for the Atlanta Facility.
The Parties will agree, which agreement shall not be unreasonably
withheld, to the categories of equipment and amounts of equipment within such
categories that shall constitute the Funded Equipment with respect to the
Atlanta Facility that are required to provide the Services at the Service Levels
referred to in Section VI of the Agreement. (A preliminary list of such
categories and amounts of equipment is included in Amended Schedule B and a
definitive list shall be added to and become part of Amended Schedule B promptly
after the Parties agree, and may be amended from time to time thereafter by
mutual agreement of the Parties.) Once the Parties have agreed as to the
categories and amount of equipment that constitute the Funded Equipment with
respect to the Atlanta Facility, CONTRACTOR shall obtain such Funded Equipment
within those categories, consistent
8
9
with the Parties' agreement. CONTRACTOR shall be responsible for purchasing or
leasing equipment and other assets to be used in CONTRACTOR'S performance of
Services hereunder and shall hold any such leases, and shall hold title of any
equipment so purchased, in CONTRACTOR'S name; provided, however, that CONTRACTOR
shall be responsible for leasing or purchasing (as applicable) the equipment set
forth on Amended Schedule B. All such Funded Equipment with respect to the
Atlanta Facility shall be and hereby is subject to the other terms and
provisions of the Agreement, including, but not limited to, the terms and
provisions in Section 4.6(b) thereof.
C. Meetings Relating to the Atlanta Facility.
During the first six (6) months after the date of this First Amendment,
the DECORA Account Manager or his designee may be present at the Atlanta
Facility to assist CONTRACTOR in (i) the transition of services to the Atlanta
Facility and (ii) coordination of activities between DECORA and CONTRACTOR and
CONTRACTOR'S and DECORA'S contractors in the United States. CONTRACTOR shall
provide the DECORA Account Manager or his designee with an office, furniture and
such other services as the DECORA Account Manager may reasonable require. The
DECORA Account Manager or his designee shall have full access to all areas of
the Atlanta Facility at any time during the Atlanta Facility's regular business
hours. CONTRACTOR'S management shall make themselves available to the DECORA
Account Manager or his designee as reasonably requested. Except to the extent
expressly inconsistent with the foregoing terms and provisions of this
paragraph, all terms and provisions of Section 16.4 of the Agreement shall apply
with respect to the Atlanta Facility.
III. AMENDMENTS RELATING TO THE WEST COAST FACILITY.
Pursuant to Section 3.2(c) of the Agreement, DECORA and CONTRACTOR have
agreed that effective as of the date of this First Amendment and continuing
throughout the term of the Agreement, CONTRACTOR shall provide DECORA
approximately 50,000 square feet of storage space at the West Coast Facility.
DECORA shall pay CONTRACTOR for such space in accordance with the rates set
forth in Amended Schedule C hereof (or such other rates to which DECORA and
CONTRACTOR hereafter may agree in writing), and such space (defined in the
Agreement as the "Additional Storage Space" for such West Coast Facility) shall
be and hereby is subject to the other terms and conditions of the Agreement.
IV. SUPPLEMENTAL REPRESENTATIONS AND WARRANTIES OF THE PARTIES.
A. Supplemental Representations and Warranties of DECORA.
Decora hereby represents and warrants that the following
statements are true and correct, as of the effective date of this First
Amendment and as of the date this First Amendment actually is signed by DECORA:
9
10
a. DECORA is a corporation duly organized and in good
standing under the laws of Delaware and is duly qualified as and
in good standing in Ohio and all states or other jurisdictions
where the nature and extent of the business transacted by it or
the ownership of assets makes such qualification necessary,
except for those jurisdictions in which the failure to so qualify
would not have a material adverse affect on DECORA'S financial
condition or the results of its operation or business;
b. The execution, delivery and performance of this
First Amendment and the transactions contemplated hereunder are
all within DECORA'S corporate powers, have been duly authorized
by DECORA and will not violate any provision of any applicable
law, rule or regulation, judgment, order, writ or decree, or of
any contract, agreement, indenture or instrument to which DECORA
is a party or by which DECORA or its assets (including the
Products) are or may be bound;
c. This First Amendment, when executed or delivered by
DECORA, will represent the legal, valid and binding obligation of
DECORA, enforceable against it in accordance with its terms;
d. Except as set forth on Schedule D of the Agreement,
DECORA is not in default in any material respect under, or in
violation in any material respect of, any of the terms of any
agreement, contract, instrument, lease or other commitment to
which it is a party or by which it or any of its assets are
bound, and DECORA is in compliance in all material respects with
all applicable provisions of laws, rules, regulations, licenses,
permits, approvals and orders of any foreign, federal, state or
local governmental authority, except to the extent such default,
violation or non-compliance would not result in or cause a
material adverse change in the assets, business or prospects of
DECORA, or have an adverse effect on the legality, validity or
enforceability of this First Amendment or would impair the
ability of DECORA to perform its obligations under this First
Amendment;
e. Except as set forth Schedule D of the Agreement,
there are no judgments or judicial or administrative orders or
proceedings pending, or to the knowledge of DECORA threatened,
against or affecting DECORA in any court or before any
governmental authority or arbitration board or tribunal which
could materially adversely affect the condition (financial or
otherwise) of DECORA or the assets of DECORA, or the ability of
DECORA to perform under this First Amendment.
B. Supplemental Representations and Warranties of CONTRACTOR.
CONTRACTOR (which, for purposes of Section 20.2(d) and (e) of the
Agreement, includes all of CONTRACTOR'S parents, subsidiaries and Affiliates)
hereby represents and warrants that
10
11
the following statements are true and correct, as of the effective date of this
First Amendment and as of the date the First Amendment actually is signed by
CONTRACTOR:
a. CONTRACTOR is a corporation duly organized and in
good standing under the laws of Ohio and is duly qualified and in
good standing in Ohio and all states or other jurisdictions where
the nature and extent of the business transacted by it or the
ownership of assets makes such qualification necessary, except
for those jurisdictions in which the failure to so qualify would
not have a material adverse affect on Contractor's financial
condition or the results of its operation or business;
b. The execution, delivery and performance of this
First Amendment and the transactions contemplated hereunder are
all within CONTRACTOR'S corporate powers, have been duly
authorized by CONTRACTOR and will not violate any provision of
any applicable law, rule or regulation, judgment, order, writ or
decree, or of any contract, agreement, indenture or instrument to
which CONTRACTOR is a party or by which CONTRACTOR or its assets
are or may be bound;
c. This First Amendment, when executed or delivered by
CONTRACTOR, will represent the legal, valid and binding
obligation of CONTRACTOR, enforceable against it in accordance
with its terms;
d. CONTRACTOR is not in default in any material
respect under, or in violation in any material respect of, any of
the terms of any agreement, contract, instrument, lease or other
commitment to which it is a party or by which it or any of its
assets are bound, and CONTRACTOR is in compliance in all material
respects with all applicable provisions of laws, rules,
regulations, licenses, permits, approvals and orders of any
foreign, federal, state or local governmental authority, except
to the extent such default, violation or non-compliance would not
result in or cause a material adverse change in the assets,
business or prospects of CONTRACTOR, or have an adverse effect on
the legality, validity or enforceability of this First Amendment
or would impair the ability of CONTRACTOR to perform its
obligations under this First Amendment;
e. There are no judgments or judicial or
administrative orders or proceedings pending, or to the knowledge
of CONTRACTOR threatened, against or affecting CONTRACTOR in any
court or before any governmental authority or arbitration board
or tribunal which could materially adversely affect the condition
(financial or otherwise) of CONTRACTOR or the assets of
CONTRACTOR, or the ability of CONTRACTOR to perform under this
First Amendment;
f. A true and correct copy of the Aurora Lease has
been delivered by CONTRACTOR and DECORA. The Aurora Lease is in
full force and effect, CONTRACTOR
11
12
is the sole lessee thereunder and, as lessee, CONTRACTOR has the
sole and exclusive right to possession of the Aurora Facility
pursuant to the Aurora Lease. No event has occurred which
constitutes (or, with the passage of time, the giving of notice,
or both, would constitute) an event of default or breach of any
kind or description under or with respect to the Aurora Lease;
g. A true and correct copy of the lease of the West
Coast Facility (including the "First Amendment to Lease
Agreement" dated April 29, 1999) has been delivered by CONTRACTOR
and DECORA. The lease of the West Coast Facility is in full force
and effect, CONTRACTOR is the sole lessee thereunder and, as
lessee, CONTRACTOR has the sole and exclusive right to possession
of the West Coast Facility pursuant to the lease of the West
Coast Facility. No event has occurred which constitutes (or, with
the passage of time, the giving of notice, or both, would
constitute) an event of default or breach of any kind or
description under or with respect to the lease of the West Coast
Facility;
h. A true and correct copy of the lease of the Atlanta
Facility has been delivered by CONTRACTOR and DECORA. The lease
of the Atlanta Facility is in full force and effect, CONTRACTOR
is the sole lessee thereunder and, as lessee, CONTRACTOR has the
sole and exclusive right to possession of the Atlanta Facility
pursuant to the lease of the Atlanta Facility. No event has
occurred which constitutes (or, with the passage of time, the
giving of notice, or both, would constitute) an event of default
or breach of any kind or description under or with respect to the
lease of the Atlanta Facility;
i. The only persons who have or purport to have a
lien, security interest, or other encumbrance as against any of
CONTRACTOR'S inventory, accounts receivable, or the proceeds of
either of them, are Star Bank, N.A. and (as to products it has
sold or hereafter sells to CONTRACTOR) General Electric. No other
consensual or non-consensual liens, security interests, or
encumbrances (including any judgment, lien or levy for unpaid
taxes of any kind or description) exists as against CONTRACTOR or
any such assets of CONTRACTOR, except as disclosed in the
immediately preceding sentence;
j. CONTRACTOR has four, and only four, places of
business; the first such place of business is at 000 Xxxx Xxxxx,
Xxxxxx, Xxxx 00000 (at the Aurora Facility), the second such
place of business is at 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxx 00000,
the third such place of business is the West Coast Facility, and
fourth such place of business is the Atlanta Facility. Other than
those four locations, CONTRACTOR does not conduct business or own
assets at any other location in or outside the State of Ohio.
CONTRACTOR'S chief executive office is located at 000 Xxxx Xxxxx,
Xxxxxx, Xxxx
12
13
44202. CONTRACTOR shall notify DECORA immediately if the location
of CONTRACTOR'S chief executive office changes or if CONTRACTOR
hereafter has any additional or other places of business and, in
each such instance, shall inform DECORA of the addresses for each
of such chief executive office and place(s) of business.
CONTRACTOR also shall notify DECORA immediately if CONTRACTOR'S
corporate name or corporate structure changes;
k. CONTRACTOR warrants that, if and to the extent
CONTRACTOR now or hereafter does or may have rights or interests
in any of the Collateral (as defined in the Agreement) that are
sufficient for a lien, claim, security interest, or encumbrance
against CONTRACTOR to attach to such Collateral, the
precautionary security interests and liens granted to DECORA
under Section XXII of the Agreement constitute or shall
constitute valid and, by virtue of the filing of UCC financing
statement(s) in the appropriate governmental offices, perfected
liens and security interests in and upon (wherever located, and
whether now existing or hereafter arising or acquired) all
Collateral.
V. CONTINUING OBLIGATION TO OBTAIN LIEN WAIVERS FROM OTHER OR FUTURE
LANDLORDS.
CONTRACTOR covenants that with respect to all other or future leases of
the Aurora Facility, the West Coast Facility, the Atlanta Facility, and any
other DESIGNATED LOCATIONS, CONTRACTOR shall deliver to DECORA a written
agreement (the form and content of which must be substantially similar to that
of the Landlord Waiver (as defined in the Agreement), or otherwise must be
satisfactory to DECORA in its reasonable discretion), signed by each landlord,
whereby such landlord shall waive any and every right it otherwise has, may
have, or hereafter might have to assert any lien, claim, security interest, or
encumbrance of any kind or description as against any Products or other
Collateral, that such agreement shall be executed by each such landlord prior to
or contemporaneously with the execution hereafter of any lease relating to the
Aurora Facility, the West Coast Facility, the Atlanta Facility, or any other
DESIGNATED LOCATIONS, and that such agreement shall provide that it is delivered
for the benefit of DECORA, and that DECORA can and shall rely on it in
permitting CONTRACTOR to receive possession of or otherwise to render Services
concerning Products.
VI. AMENDMENTS TO SCHEDULES.
Attached hereto are Schedules A, B and C (collectively, the "Amended
Schedules"; individually, an "Amended Schedule"), which amend and replace the
correspondingly lettered Schedules to which the Agreement referred at the time
it was signed (the "Original Schedules"). The Amended Schedules constitute a
part of this First Amendment and of the Agreement. If and to the extent the
Amended Schedules differ from, or are inconsistent with, any of the Original
Schedules,
13
14
then prior to the effective date of this First Amendment the Original Schedules
shall control and on and after the effective date of this First Amendment the
Amended Schedules shall control. Any Original Schedule not amended by an Amended
Schedule shall continue in full force and effect, notwithstanding the execution
of this First Amendment.
VII. GENERAL PROVISIONS.
A. Other Provisions of Agreement Unaffected. Except as expressly modified
herein, all terms and provisions of the Agreement, the Exhibits thereto, and the
Original Schedules remain unaffected, and are in full force and effect. This
First Amendment constitutes a part of the Agreement, and (for purposes of the
last sentence of Section 3.2(a) of the Agreement) is an "addendum" that, in
part, relates to the Atlanta Facility.
B. Definitions. All capitalized terms used but not defined in this First
Amendment shall have the same meanings ascribed to them in the Agreement. In the
event a capitalized term is defined in this First Amendment or the Amended
Schedules and is defined in the Agreement, and such definitions are
inconsistent, the definition in the Agreement shall govern.
C. Binding Effect. This First Amendment shall be binding on and inure to
the benefit of the Parties and their respective successors and assigns.
D. Governing Law. This First Amendment shall be governed by and construed
in accordance with the laws of the State of Ohio and the U.S.A. applicable to
contracts entered into and fully performed within said State, notwithstanding
any choice of law rule to the contrary.
E. Counterparts. This First Amendment may be signed in counterparts; each
counterpart will be considered an original, and all counterparts together shall
constitute one document and one agreement.
F. Merger and Amendments. The Agreement, the Original Schedules and the
Exhibits to the Agreement, as amended by this First Amendment and the Amended
Schedules, constitute the entire understanding and agreement between the
Parties. All prior understandings and agreements are merged into or superseded
by the Agreement, the Original Schedules and the Exhibits to the Agreement, as
amended by the First Amendment and the Amended Schedules. No modification to the
Agreement, Original Schedules, Exhibits to the Agreement, First Amendment, or
Amended Schedules shall be binding upon any Party unless reduced to a writing
which is signed by both Parties.
G. Printed Forms. Any standard printed purchase order or acknowledgment
forms utilized are for the convenience of the Parties. The terms and conditions
of the Agreement, as amended by this First Amendment, shall govern such forms;
and no additional or different terms and conditions on
14
15
such printed forms shall be construed to constitute a modification of the
Agreement, as amended by this First Amendment.
H. Even Handed Construction. The terms and conditions set forth in this
First Amendment have been arrived at after mutual negotiation; and it is the
intention of the Parties that its terms and conditions not be construed against
any Party merely because it was prepared by one of the Parties.
I. Headings. The headings and sub-headings used in this First Amendment are
for convenience only and have no legal significance in the construction,
interpretation or operation of this First Amendment.
J. No Waiver. The failure of either Party to enforce any provision of the
Agreement or Original Schedules, as amended by this First Amendment and the
Amended Schedules, or to exercise any right or to prosecute any default shall
not be considered a waiver of that provision or right nor bar prosecution of
that default.
K. Application. The Agreement, as amended by this First Amendment, shall
apply separately and individually to each DESIGNATED LOCATION operated by
CONTRACTOR. All Appendices, Exhibits and Schedules appended to this First
Amendment and any revisions to those Appendices, Exhibits and Schedules which
have mutually been approved by DECORA and CONTRACTOR, shall be subject to the
terms of the Agreement, as amended by this First Amendment. In the event of a
conflict between the Agreement (as amended by this First Amendment) and any
Appendices, Exhibit or Schedule (including the Original Schedules and the
Amended Schedules), the terms and conditions of the Agreement (as amended by
this First Amendment) shall govern.
IN WITNESS WHEREOF, DECORA and CONTRACTOR have caused this First
Amendment to be executed by their respective duly authorized representatives,
effective the date first specified above.
DECORA, INCORPORATED FEDERAL WHOLESALE GROUP, INC.
d/b/a Pyramid Logistics Services
By: ____________________________ By: ________________________________
Date: __________________________ Date: ______________________________
15
