Exhibit 10.35
1994 10-K
AMENDMENT NO. 1
TO
PURCHASING AGREEMENT
AMENDMENT NO. 1 TO PURCHASING AGREEMENT, dated as of May 28, 1994,
between XXXXXXXX CONVERTIBLES, INC., a Delaware corporation ("Xxxxxxxx"), and
XXXX ENTERPRISES, INC., a New York corporation (the "Private Company")
W I T N E S S E T H:
WHEREAS, Xxxxxxxx and the Private Company are parties to a Purchasing
Agreement (the "Purchasing Agreement"), dated as of December 31, 1993,
pursuant to which the parties agreed to certain merchandise purchasing
arrangements in connection with the operation of Xxxxxxxx Convertibles stores;
WHEREAS, the parties desire to amend certain of the terms and
conditions of the Purchasing Agreement upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, the parties hereto hereby agree as fol1ows:
1. Definitions. All terms used herein which are defined in the
Purchasing Agreement and not otherwise defined herein are used herein as
defined therein.
2. Amendment to Section 2(a) . Section 2(a) of the Purchasing
Agreement is hereby amended by deleting such Section in its entirety and
replacing it with the following:
"2. Purchasing. (a) Private Company, its subsidiaries, its
licensees and those stores now managed by the Private Company and set
forth in Schedule 1 attached hereto (the "Managed Stores"), shall
purchase from Xxxxxxxx and Xxxxxxxx shall sell to the Private
Company, its subsidiaries, licensees and Managed Stores, Pre-purchased
Inventory and Special Order Merchandise at Jennifer's cost as invoiced
by the supplier for such Pre-purchased Inventory and Special Order
Merchandise. In respect of Merchandise purchased by the Private
Company, its subsidiaries, licensees or Managed Stores, the Private
Company shall receive the benefit of any discounts or rebates,
including,
without limitation, volume related discounts and warehouse handling,
truckload or other shipping discounts (other than early payment
discounts) (collectively referred to as "Rebates") to the extent such
Rebates are refunded or credited to Xxxxxxxx by its suppliers and on a
monthly basis Xxxxxxxx shall remit to Xxxxxxxx - New York, Inc., on
behalf of the Private Company, all such Rebates to which the Private
Company is entitled to hereunder, either (i) in the event Rebates are
credited by a supplier then, on or before the fifteenth day of each
calendar month, Xxxxxxxx shall remit an amount equal to the Private
Company's share of all such Rebates generated on account of invoices
paid by Xxxxxxxx during the prior month or (ii) in the event Rebates
are directly remitted to Xxxxxxxx by check or other means of payment
from a supplier then, on or before the fifteenth day of each calendar
month, Xxxxxxxx shall remit an amount equal to the Private Company's
share of all such Rebates reflected in the Rebate payments directly
made by such suppliers during the prior month, provided, however, that
in the case of both clauses (i) and (ii) above the Private Company has
in fact paid Xxxxxxxx for the Merchandise relating to any such Rebates
to be remitted to the Private Company hereunder. The Private Company,
its subsidiaries, licensees and Managed Stores shall have no interest
in, and shall not be entitled to, any Rebates refunded or credited to
Xxxxxxxx by its suppliers and attributable to Merchandise purchased
by Xxxxxxxx or any of its subsidiaries or affiliates or partnerships
controlled by Xxxxxxxx or any subsidiary of Xxxxxxxx, for sale other
than to the Private Company, its subsidiaries, licensees and Managed
Stores, it being acknowledged and agreed that all such Rebates
(including early payment discounts) shall be for the sole and
exclusive benefit of Xxxxxxxx."
3. Amendment to Section 2(b). Section 2(b) of the Purchasing
Agreement is hereby amended by adding the phrase "or Managed Stores" after the
word "licensees" appearing therein.
4. Amendment to Section 2(c). Section 2(c) of the Purchasing
Agreement is hereby amended by adding the phrase "or Managed Stores" after the
word "licensees" in each instance where such word appears therein other than
at the end of such Section.
5. Amendment to Section 3. Section 3 of the Purchasing Agreement is
hereby amended by deleting such Section in its entirety and replacing it with
the following:
"3. Payment. The Private Company shall, and shall cause each of
its subsidiaries, and licensees and Managed Stores to, pay Xxxxxxxx
(i) for all Pre-purchased Inventory purchased, within thirty (30)
days of when such Prepurchased Inventory is delivered to customers
of the Private Company, such subsidiary or such licensee or Managed
Store, and (ii) for all Special Order Merchandise purchased, within
thirty (30) days after the arrival of such Special Order Merchandise
at the Warehouse, or on such better terms as may be available from
time to time to any of Jennifer's licensees (other than Jennifer's
subsidiaries).
6. Amendment to Section 4. Section 4 of the Purchasing Agreement is
hereby amended by adding the phrase ", provided, however, that notwithstanding
any such termination the Private Company, and each of its subsidiaries,
licensees and Managed Stores, shall remain liable to pay Xxxxxxxx all amounts
then due and owing by them hereunder.
7. Promissory Note. In order to evidence a $1,000,000 receivable
currently on the books of Xxxxxxxx in respect of Rebates owed by the Private
Company to Xxxxxxxx for periods prior to January 1, 1994, the Private Company
shall deliver to Xxxxxxxx the promissory note, substantially in the form
attached hereto as Exhibit A, which note shall be in the original principal
amount of $1,000,000 and payable in 36 equal consecutive monthly installments
commencing August 1, 1994, together with 8% interest.
8. Continued Effectiveness. The Purchasing Agreement is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed
in all respects except that all references in the Purchasing Agreement to
"this Agreement", "hereto", "herein", "thereof", "hereunder" or words of like
import referring to the Purchasing Agreement shall mean the Purchasing
Agreement as amended by this Amendment.
9. Effective Date. The provisions of this Amendment shall be
retroactive to, and effective as of, January 1, 1994.
10. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York, without giving effect to
the conflict of laws principles thereof.
11. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original and together which
shall be deemed one instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the day and year first above written.
XXXXXXXX CONVERTIBLES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: President
XXXX ENTERPRISES, INC.
By: /s/ Xxxx X. Love
--------------------------------
Name: Xxxx X. Love
Title: President
Schedule 1
Managed Stores
--------------
GSB Park Slope, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Xxxxxxxx Clarkstown, Inc.
00 Xxxx Xxxxx 00
Xxxxxx, Xxx Xxxx 00000
Great South Bay Branford, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Annapolis-Xxxxxxxx, Inc.
0000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Rudzin 000xx Xxxxxx Furniture, Inc.
000 Xxxx 000xx Xxxxxx
Xxxxx, Xxx Xxxx 00000
Xxxxxxxx Xxxxx Hills LIC., Inc.
000 Xxxxxx Xxxxxxxx
Xxxxx Xxxxx, Xxx Xxxxxx 00000
GSB Bensonhurst, Inc.
0000 00xx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Rudzin Elmhurst Furniture, Inc.
00-00 Xxxxxx Xxxxxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Xxxxxx Ridge
00000 Xxxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
