DATED 8TH FEBRUARY, 2002
MULLION INTERNATIONAL LIMITED
- and -
ROYAL HOLDINGS, INC.
- and -
CRADLE PENHALIGON'S LIMITED
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Deed of Variation to an agreement dated 18 December 2001
relating to the sale and purchase of the entire issued share
capital of LMK Limited and shares in the capital of Penhaligon
& Jeavons Investments Co Limited, Mulmkion BV and
Penhaligon's Pacific Limited and Cradle Penhaligon's Limited
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Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
One Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
THIS DEED OF VARIATION is made the 8th day of February, 2002
BETWEEN:
1. MULLION INTERNATIONAL LIMITED, whose registered office is at P.O. Box
3186, Roadtown, Tortola, British Virgin Islands ("Mullion");
2. ROYAL HOLDINGS, INC., a Delaware Corporation, whose business address is c/o
Fox Xxxxx & Co. LLC, 000 Xxxxx Xxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxxxx
00000 ("Royal");
AND
3. CRADLE PENHALIGON'S LIMITED, whose registered office is at 00-00 Xxxxxxx
Xxx, Xxxxxx XX0X 4 JS ("Cradle").
Mullion, Royal and Cradle shall be referred to herein as the "Parties".
WHEREAS
(A) Mullion and Royal entered into an agreement on 18 December 2001 for the
sale and purchase of the entire issued share capital of LMK Limited and
shares in the capital of Penhaligon's & Jeavons Investment Co. Limited,
Mulmkion BV and Penhaligon's Pacific Limited (the "Agreement") and Royal
has since assigned most of its rights under the Agreement to Cradle.
(B) The Parties are now entering into this Deed of Variation to vary the
provisions of the Agreement.
NOW THIS DEED WITNESSES as follows:
1. Amendment to the Agreement
Pursuant to sub-clause 17 (c) of the Agreement the parties hereby agree
that the Agreement shall be varied in accordance with each of the
amendments set forth in the Schedule of Amendments to the Agreement
attached hereto.
2. General
(A) The Agreement shall as from the date hereof take effect as varied in
accordance with this Deed of Variation.
(B) Save as expressly set out in this Deed of Variation and in the Schedule
hereto, all the provisions of the Agreement shall continue in full force
and effect.
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(C) This Deed of Variation shall be governed by and construed in accordance
with English Law.
(D) This Deed of Variation may be executed in counterparts with the same effect
as if executed on the same document.
In witness whereof this Deed of Variation has been duly executed with effect
from the day and year first before written.
Executed and delivered as a )
Deed by MULLION )
INTERNATIONAL LIMITED )
acting by )
Director /s/ Xxxxxxx Xxxxxxxxxxx
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Director/Secretary___________________
Executed and delivered as a )
Deed by ROYAL HOLDINGS, )
INC. acting by )
Director /s/ Xxxxx Xxxxxxx
-----------------
Director/Secretary /s/ Xxxx Xxxxxxx
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Executed and delivered as a )
Deed by CRADLE )
PENHALIGON'S LTD. )
acting by )
Director /s/ Xxxxx Xxxxxxx
-----------------
Director/Secretary /s/ Xxxx Xxxxxxx
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SCHEDULE OF AMENDMENTS
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Paragraph Amendment
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3(A) In the first sentence, the reference "3(F)" shall be deleted and replaced
with the reference "3(G)".
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3(B) In the introductory language of the paragraph the
reference "3(F)" shall be deleted and replaced
with the reference "3(G)".
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3(C) In the third sentence immediately after the phrase
"If the Seller and the Purchaser agree as to the
amount of the Net Working Capital Amount set forth
in the draft Net Working Capital Statement" the
words "or otherwise" shall be inserted.
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3(G) In each of the second and third sentences of the
paragraph, the phrase "clauses 3(B) to 3(G)" shall
be deleted and replaced with the phrase "clauses
3(B) through 3(G)".
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5(C) In first sentence of the last paragraph
immediately before the words "One Raffles Link",
the words "Purchaser shall procure that" shall be
deleted. In the first sentence immediately after
the words "One Raffles Link" the word "continues"
shall be deleted and replaced by "may continue".
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5(F) In the first sentence immediately after the words
"transfer to the Purchaser of", the word "all"
shall be inserted.
In the first sentence immediately after the words
"inventory, fixtures and fittings situated
therein" the word "all" shall be inserted.
At the end of the third sentence immediately after
the words "under the name "Penhaligon's" situated
in the U.S." the words "shall be transferred to
the Purchaser (or its designee)" shall be
inserted.
At the end of the fourth sentence immediately
after the words "at the store at 000 Xxxxxxx
Xxxxxx and the assets" the words "held at Saks
(5th Avenue) or Warnaco or" shall be deleted and
replaced with the words "used or held for use at
Saks (5th Avenue) and Warnaco and".
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5(G) In the first sentence immediately after the words
60 days insert "after the Completion Date".
In the second sentence immediately after the words
"to the extent Penhaligon's Limited shall incur
any liability or costs under such
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guarantee" delete the word "it" and replace with
the words "the Purchaser".
In the second sentence immediately after the words
"any such liability or costs from the Escrow",
delete the word "Agreement" and replace with the
word "Account".
In the middle of the second sentence immediately
after the words "relating to such guarantee under
the Escrow", delete the word "Agreement" and
replace with the word "Account".
In the middle of the second sentence immediately
after the words "reimburse liabilities or costs
incurred under such guarantee", the word "be"
shall be inserted.
At the end of the paragraph immediately after the
sub-clause marked "(x)" insert the words "the date
on which".
At the end of the paragraph before the sub-clause
marked "(y)" delete the word "guaranty" and
replace with the word "guarantee".
At the end of the paragraph immediately after the
words "(y) the expiration of such lease" insert
the words "and guaranty".
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6(C) In the parenthetical phrase, delete the term
"Agent" and replace with the term "Account".
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9(B) At the end of the first sentence immediately after
the words "Usable NOL", delete the word "amount"
and replace with the word "Amount".
At the end of the second sentence immediately
after the words "including that contemplated by
the", delete the word "Condition" and insert the
words "Conditions to completion set forth in
Clause 4".
At the beginning of the third sentence immediately
after the words "To the extent that more than the"
replace the word "Usual" with the word "Usable".
At the end of the second sentence immediately
before the words " . . . Schedule 2)." insert the
words "the matter set forth in".
In the second last line of the paragraph delete
the word "Agreement" and replace with the word
"Account".
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In the second last line of the paragraph delete
"35" and replace with "0.35".
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10 At the end of the final sentence immediately
before the words "the Purchaser shall not be
required to take any action" insert "(i)".
At the end of the final sentence after the words
"Clause 6(F)" replace the word "on" with the word
"or".
In the second last sentence of the paragraph,
immediately after the words "Clause 6(G)", insert
the words "and (ii) this Clause 10 shall not apply
to any Assurance, obligation, representation,
Warranty, liability, agreement or covenant of the
Seller or the Seller's Group set forth in, or
arising under, this Agreement or any Completion
Document or in relation to the indemnity provided
by Warnaco (HK) Limited in relation to the Izka
and Lejaby businesses (the "Hong Kong
Indemnity")".
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13(B) In the last sentence immediately after the words
"prior to Completion; provided that the" delete
the word "Seller" and replace with the word
"Seller's".
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17(B) Following clause (ii) insert a new paragraph
"Provided, however, that this clause 17(B) does
not apply in relation to the Hong Kong Indemnity".
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18(C) Insert a full stop after the "Co" in "Fox Xxxxx & Co."
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Definitions In each of the defitions of "Net Working Capital
Amount" and "Net Working Capital Statement"
replace "3(F)" with "3(G)".
After the definition of "Escrow Agent" insert the
following definition: ""Escrow Agreement" shall
mean the agreement governing the Escrow Account".
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