EXHIBIT 10.13
AGREEMENT
AGREEMENT made this 5th day of February, 1998 by and between Quade, Inc.,
a corporation existing under and by virtue of the laws of the State of New
York, having its principal place of business at 1384 Broadway, 14th Floor, New
York, New York 10018 ("Licensor"), and Jenna Lane Kids, Inc, a corporation
existing under and by virtue of the laws of the state of Delaware, having
its principal place of business at 1407 Broadway, New York, New York 10018
("Licensee").
WITNESSETH
WHEREAS, the United States Polo Association ("U.S.P.A.") is the governing body
of the sport of polo in the United States, having the exclusive right to use
and to license the names, trademarks, symbols, emblems, design and colors of
the U.S.P.A. (the "USPA Trademarks," as displayed in Schedule A hereto); and
WHEREAS, U.S.P.A. has granted an exclusive license to Licensor to use the
USPA Trademarks for, among other things, the Items (as defined in Section
1.1(c)) in the Territory (as defined in Section 1.1(a)); and
WHEREAS, Licensee desires to manufacture, sell and use the USPA Trademarks
on or in connection with Items, and to obtain from Licensor a license
therefor; and
WHEREAS, Licensor is willing to grant such a license upon the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing and the covenants herein
contained, it is agreed as follows:
1. DEFINITIONS
1.1 For the purposes of this Agreement, the parties hereto agree that the
following terms shall have the following meanings:
(a) "Territory" shall mean the United States, its territories and
possessions, and Canada
(b) "Items" shall mean those products listed in Schedule B hereto and
bearing one or more of the USPA Trademarks.
(c) "Net Sales" shall mean with regard to Items sold within Licensee's
premises, the gross wholesale price of the Items delivered to
Licensee; and with regard the Items delivered by or for the account
of Licensee, the final wholesale price charged upon the earlier to
occur of billing, invoicing, shipping or payment to a nonaffiliated
third party less normal trade discounts actually offered and taken,
allowances and returns actually allowed, and any charges, fees and
taxes not part of the purchase price.
(d) "Creative Material" shall mean creative concepts, designs and
direction for designs for Items including recommendations as to color,
textile, yarns, design and styling of Items provided by Licensor to
Licensee hereunder. At its option, Licensor may select others to
provide creative material to Licensee.
2. GRANT OF LICENSEE
2.1 Licensor hereby grants to Licensee for the term of this Agreement,
and Licensee hereby accepts, the exclusive right and license to use
the USPA Trademarks in the Territory on all Items, subject the
approvals set forth in Paragraphs 6.1 and 6.2 hereof.
3. TERM
3.1 The term of this Agreement shall commence on February 1, 1998 and
terminate on July 31, 2001 (the "Term").
3.2 Each year of this Agreement shall be deemed to commence on August
1st and terminate the following July 31st (the "Contract Year"). The
first Contract Year shall commence February 1, 1998 and terminate
July 31, 1999.
3.3 Licensee shall have the option to extend this Agreement for an
additional three (3) Contract Years, through July 31, 2004 by written
notice delivered to Licensor no later than June 30, 2001.
4. RESTRICTIONS
4.1 Licensee shall not use, permit or cause or suffer to be used, except
for the purposes set forth herein and during the Term hereof, any
Creative Material or other sketches, designs, samples or patterns
created by Licensor hereunder without Licensor's approval, which
shall not be unreasonably withheld or delayed.
4.2 Licensee shall not sell Items outside of the Territory and shall not
sell Item to any third party whom it knows, or has reason to believe,
intends to sell products outside the Territory.
4.3 The parties acknowledge the high value of the USPA Trademarks and
consequently agree that sales at full wholesale price by Licensee
of all Items shall be to Licensee or to those retailers listed on
Schedule C hereto and others that shall be added thereto upon the
consent, not to be unreasonably withheld, of Licensor, within five (5)
business days of the request for such consent. Licensee shall
distribute Items only to retailers that are not directly or indirectly
owned, controlled or otherwise related to Licensee, and only for
resale and distribution directly to the public.
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4.4 Licensee may sell as seconds or irregulars up to 5% of its Net Sales
in any Contract Year and may sell as close-outs up to 10% of its
Net Sales in any Contract Year. Licensee must provide Licensor a
list of prospective purchasers and obtain written approval from
Licensor (except in the case of odd lot sales of fewer than two
dozen items) of channels of distribution for the sale of seconds,
irregulars or close-outs. Such approval shall not be unreasonably
withheld or delayed.
4.5 Licensee shall not use any trade dress, labels, hang tags or
packaging which utilize white or silver lettering in a blue
background or emphasize the word "Polo" by presenting it in a
rectangle or between lines or in lettering larger than that of
associated words or letters used to identify "United States Polo
Association" nor shall it use any other marks, trade dress, labels,
hang tags, packaging or advertising that is not approved by Licensor
(which approval shall not be unreasonably withheld or delayed) and
that is likely to cause confusion with any marks or trade dress of
Polo Ralph Lauren or any entity affiliated with Ralph Lauren, except
that nothing herein shall prohibit Licensee from selling Items
within the Territory. Licensee shall be responsible to appear, defend,
indemnify, and hold harmless Licensor from any breach of this
paragraph.
4.6 Licensee shall not, during the term of this contract, register any
mark, logo, or emblem containing the word "polo", or depicting a
horse in any form or depicting any equestrian activity or equestrian
sports figure. Any such mark, logo or emblem registered in breach of
this covenant shall become the property of Licensor.
4.7 It is Licensor's intention to continue the operation of its business
in the manner it has in the past, and nothing herein contained shall
in any way be considered as a limitation or restriction of such right,
except that during the Term, Licensor shall not use and shall not
license or otherwise grant permission to any person or corporation to
use the USPA Trademarks in connection with the sale of Items in the
Territory. Licensor shall have the right to sub-license within the
Territory any items not listed in Schedule B hereof.
5. DUTIES
5.1 Licensor, or a designee of Licensor, may provide Licensee with
Creative Material if and when requested and such additional design
assistance as it determines in its sole discretion. Licensor may also
submit to Licensee such advertising and labels and packaging and other
materials in such quantities as it, from time to time, determines
in its sole discretion. Licensee shall be under no obligation to
utilize any Creative Material provided by or on behalf of Licensor
and Licensor shall be under no obligation to submit any Creative
Material for any Items to be shipped for any reason which follows the
termination or expiration for any reason of this Agreement.
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5.2 Licensee shall:
(a) At its cost and expense, prepare first samples and duplicate
samples of the Items and deliver them to Licensor for its
approval, as provided in Paragraph 6.2 hereof, at least (3)
weeks prior to the showing of samples to the trade, unless
Licensor agrees to a shorter period.
(b) Undertake to use its reasonable best efforts to maximize the
sale of Items and Net Sales.
(c) Place USPA Trademarks on all Items prior to delivery, except as
set forth in Paragraph 6.1 herein.
(d) Make no alterations in the appearance, color, fit, yarn, or
textiles of the finished Items from any sample approved under
Paragraph 6.2 hereof by Licensor, except such alterations that
represent normal production variations and do not affect the
appearance or quality of the Item without Licensor's express
written consent, which shall not be unreasonably withheld.
5.3 Licensee shall provide documentation, on Licensor's written request,
of the name and address of its manufacturer(s) and the type(s) of
Items being manufactured.
5.4 Licensor shall have the right to purchase from the Licensee
reasonable quantities of licensed Items for sale outside of Territory
or internal use, so long as such purchase is commercially practicable
and does not unreasonably interfere with Licensee's ability to
manufacture and sell Items in accordance herewith. The sale price for
such purchases shall be cost plus ten percent (10%). Cost is defined
as either (a) Licensee's direct landed cost, port of entry U.S.A., or
(b) Licensee's direct cost F.O.B. manufacturer's dock (if domestic
third party manufacture), or (c) Licensee's expenditures for cut,
make and trim plus Licensee's direct fabric/materials cost (if
manufactured directly by the Licensee). No royalty shall be payable
by Licensee to Licensor for any Items purchased by Licensor under this
section, and all sales of such Items shall be excluded from the
Guaranteed Minimum Royalties (as hereinafter defined).
6. TRADEMARK AND WORKMANSHIP
6.1 Licensee acknowledges that the USPA Trademarks have established
prestige and goodwill and are well recognized in the mind of the
trade and the public, and that it is of great importance to
Licensor that the high standards and reputation associated with
the USPA Trademarks be maintained in the manufacture and sale of
Items. Accordingly, all Items and the packaging therefor sold by
Licensee and bearing the USPA Trademarks shall be comparable to
samples approved by Licensor and shall be manufactured, sold,
distributed, and advertised in compliance with such laws and
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regulations as may be applicable. Licensee shall, at its cost and
expense, upon Licensor's written request for specified Items and
packaging, promptly furnish Licensor with a reasonable number of
such Items and packaging therefor prior to, and from time to time
during production. Licensee shall use its best efforts to make its
manufacturing and shipping facilities available to Licensor during
usual working hours for inspection by Licensor's representative
at Licensor's sole cost and expense.
6.2 If Licensor shall reasonably object in writing to the quality,
workmanship or style of any sample or Item submitted pursuant to
Paragraphs 5.4 hereof or 6.1 hereof, Licensee will correct such
sample to conform with Licensor's request in relation thereto or
discontinue production thereof. For all purposes of approvals to be
given hereunder, except as specifically set forth in Paragraph 5.1(c)
hereof, the failure of Licensor to notify Licensee in writing of its
disapproval within seven (7) business days after submission to it
of any sample specifying in reasonable detail the basis thereof,
shall be deemed to constitute the approval or consent by Licensor
required hereunder.
6.3 Licensor represents and warrants:
(a) It has the full right and authority to give and grant exclusive
rights and licenses for the use of the USPA Trademarks in the
Territory in connection with the manufacture and sale of the
Items, including, without limitation, the license granted
pursuant to this Agreement.
(b) No other party, as of the date of this Agreement, has been
licensed by Licensor to use the USPA Trademarks for the Items
in the Territory.
(c) The U.S.P.A., as the grantor of the master license for the USPA
Trademarks in the Territory, at its own expense, will take all
steps as are reasonably required to apply for and maintain, in
full force and effect, the registrations of the USPA Trademarks
in the Territory for the Items.
6.4 In the event that Licensee learns of any infringement of the USPA
Trademarks on Items, it will promptly notify Licensor thereof.
Licensor will thereupon take such action as it deems advisable for
the proection of Licensor's rights in and to the USPA Trademarks.
Licensee at Licensor's sole expense shall cooperate with Licensor in
all respects, including, without limitation, by being a plaintiff or
co-plaintiff and by causing its officers to execute pleadings and
other necessary documents in the event Licensor brings an action. If
Licensor fails to take action, Licensee will have the right to take
any action with respect to such infringement or limitation, but
only with Licensor's prior written approval, which Licensor shall not
unreasonably withhold. Licensee will not settle any action, nor
dismiss an appeal of any adverse decision nor discontinue any action
taken by it if such settlement, appeal or discontinuance is, or
would be injurious to Licensor's right in and to the USPA
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Trademarks, or the goodwill pertaining thereto, except to the extent
the same is approved in advance by Licensor. The party bringing the
action will bear all expenses (including investigation and attorneys'
fee and expenses) incurred with respect to any actions taken pursuant
to the provisions of this paragraph. Any damages recovered or sums
obtained in settlement in or with respect to any such action shall be
for the account of the party bringing the action.
6.5 Except as set forth in Paragraph 6.4 hereof, in the event any claim
is made or suit instituted against Licensor or Licensee based on a
claim that the use of the USPA Trademarks in the Territory infringes
the right of any third party, Licensor will thereupon undertake, in
consultation with the U.S.P.A, but at Licensor's sole expense, the
defense of the claim or suit to the extent it is not based primarily
on Licensee's misuse of the USPA Trademarks. Licensee shall cooperate
with Licensor in all respects at Licensor's sole expense. To the
extent that the claim or suit is based primarily on Licensee's misuse
of the USPA Trademarks, Licensee will defend against such action or
claim, and Licensor shall cooperate with Licensee in all respects.
Licensee will not settle such action, nor appeal any decision, nor
discontinue such action if such settlement, appeal or discontinuance
is, or would be, injurious to Licensor's right and to the USPA
Trademarks, or the goodwill pertaining thereto, except to the extent
the same is approved in writing by Licensor. The party defending the
action will bear all fees and expenses incurred with respect to such
action. Any damages recovered or sums obtained in settlement in or
with respect to any such action shall be for the account of the party
defending the action. Licensee specifically waives any rights to
indemnification or damages from Licensor on account of any claims or
suit referred to in this Paragraph 6.5, other than reimbursement for
legal fees and expenses incurred thereunder, as provided herein. In
the event Licensee is permanently enjoined from using any of the USPA
Trademarks on Items and if the parties are unable to agree on
substitute USPA Trademarks, Licensee may thereupon terminate this
Agreement. To the extent Licensee incurs any legal fees or
disbursements under this Paragraph 6.5, (i) Licensor shall reimburse
Licensee upon demand, and (ii) to the extent unreimbursed, Licensee
may, at its option, offset such amounts due against any payments,
including without limitation the Guaranteed Minimum Royalties, due
and owing Licensor hereunder.
7. ADVERTISING AND PUBLICITY
7.1 All of licensee's advertising, publicity, and point of sale materials
using the USPA Trademarks shall be subject to the reasonable prior
approval of Licensor. Samples of all such materials and all labels,
hang tags and packaging materials displaying the USPA Trademarks for
use in connection with the sale of Products shall be submitted to
Licensor for its approval prior to use. If Licensor shall object in
writing to any such advertising or sales materials, Licensee will
correct such Item to confirm with Licensor's reasonable request in
relation thereto to discontinue use of the same if so requested.
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7.2 The failure of Licensor to notify Licensee of its disapproval within
seven (7) business days, after receipt of samples of the items
referred to in this Paragraph 7, specifying in reasonable detail the
basis therefor, shall be deemed to constitue approval by Licensor.
8. ROYALTIES, ACCOUNTING
8.1 Licensee agrees to pay Licensor a royalty of five percent (5%) against
Net Sales during each Contact Year ("Royalties").
8.2 Licensee shall meet minimum sales requirements as set forth in
Schedule D.
8.3 Licensee agrees to pay to Licensor as non-refundable advances against
Royalties earned during the Term, minimum royalties ("Guaranteed
Minimum Royalties") for each Contract Year as follows:
(a) During the first Contract Year, the sum of U.S. $30,000.00 to be
paid upon signing this agreement and $120,000.00 by January
13, 1999.
(b) During subsequent Contract Years, the Guaranteed Minimum
Royalties, as set forth in Schedule D hereof, shall be paid in
arrears in two payments at the end of each of the sixth and
last months of each such Contract Year.
8.4 Licensee shall prepare and furnish to Licensor statements of Net
Sales within thirty (30) days after the last day of the sixth month
and within sixty (60) days after the last day of the last month of
each Contract Year. Each such statement shall specify the amount of
gross sales per Item, and all deductions, by category, taken therefrom
to compute Net Sales. Royalties shall be paid to Licensor
contemporaneously with the rendering of the statement. Licensee
shall continue to render statements following the termination of this
Agreement, until all sales made pursuant to the Agreement have been
accounted for. All such statements shall be provided to:
Quade, Inc.
1384 Broadway, 14th Floor
New York, N.Y. 10018
Attention: Gabe Zeitouni
8.5 Licensee shall at all times keep accurate books and records of account
of all sales within the scope of this Agreement. Not later than thirty
(30) days following the last day of each Contract Year during the
Term, a statement of all Net Sales for said Contract Year, certified
in writing to be correct by an officer of Licensee shall be prepared
by Licensee and delivered to Licensor. At reasonable times
during the course of any Contract Year and on reasonable
notice given, Licensor shall be
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entitled, at Licensor's expense, to have Licensee's books and records
relating to sales pursuant to this Agreement examined by
representatives of its choosing. If the cost of any such
examination reveals deficiencies in excess of five percent (5%)
of the amount reported as Net Sales, then in such event, Licensee
shall bear the cost of the examination.
9. INDEMNIFICATION
9.1 Licensee hereby indemnifies and agrees to hold Licensor harmless from
and against any claims, suits, loss and damage (including reasonable
attorney's fees), arising out of alleged defects in the material or
workmanship of any of the Items manufactured by and for Licensee,
unless such claims, suits, loss or damage result from Creative
Material or other materials supplied by or at the request of
Licensor.
10. TERMINATION
10.1 If Licensee fails to make any payment on any date required hereunder,
such payment shall be paid with interest at a rate equal to three (3)
percentage points above the prime rate, as stated by Citibank, N.A.
accruing from the date such payment became due. If such default
continues uncured for a period of ten (10) business days after
written notice thereof has been given to Licensee by Licensor,
Licensor shall have the right to terminate this Agreement forthwith
by and upon written notice to Licensee.
10.2 If Licensee fails to perform any of the material terms, conditions,
agreements of covenants in this Agreement on its part to be
performed, which relate in any way to the use of the USPA Trademarks,
Licensor may terminate this Agreement forthwith by written notice:
(i) if such default is incurable; or (ii) if such default is
curable but continues uncured for a period of ten (10) business
days after written notice thereof has been given by Licensee by
Licensor; or (iii) if such default is curable but not within said
ten (10) day period and all reasonable steps necessary to cure such
default have not been taken by Licensee within said ten (10) day
period, or Licensee fails to diligently take all steps necessary to
cure such default as promptly as is practical.
10.3 Notwithstanding the provisions of Paragraph 10.2, if at any time
during the term of this Agreement, Licensor discovers that Licensee
has willfully, knowingly and materially damaged the interest of the
Licensor in the Territory via conduct alone or in conjunction with
third parties and has presumptive evidence thereof, the Licensor
may terminate this Agreement forthwith by serving written notice
upon Licensee.
10.4 In the event Licensor or Licensee files a petition in bankruptcy,
or is adjudicated a bankrupt, or makes an assignment for the
benefit of creditors, or files a petition or
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otherwise seeks relief under or pursuant to any bankruptcy,
insolvency or reorganization statue or proceeding, or if a
custodian, receiver or trustee is appointed for it or a substantial
portion of its business or assets for any reason, this Agreement
may be terminated by the other party forthwith, unless such
bankruptcy, or other matter is discharged or otherwise terminated
within thirty (30) days.
10.5 No assignee for the benefit of creditors, custodian, receiver,
trustee in bankruptcy, sheriff or any other officer of the court
officially charged with taking custody of Licensee's assets or
business shall have the right to continue this Agreement or to
exploit or in any way use the USPA Trademarks if this Agreement
terminates pursuant to Paragraphs 10.1 or 10.3 above.
10.6 Notwithstanding any termination in accordance with the foregoing,
Licensor shall have, and hereby reserves, all the rights and
remedies which it has or which are granted to it by operation of
law, to enjoin the unlawful or unauthorized use of the USPA
Trademarks. Injunctive relief may also be sought prior to or in
lieu of termination and which may be sought in the courts
notwithstanding the arbitration provisions of Paragraph 16 below.
11. RIGHTS AFTER TERMINATION
11.1 Upon the valid and proper termination of this Agreement, whether
by the expiration of the Term hereof, or cancellation, or for any
cause whatsoever, the license herein granted and all rights of
Licensee to use the USPA Trademarks forthwith shall cease and
terminate. Upon such termination, Licensee shall discontinue and
abandon the use of the USPA Trademarks and shall cease to represent
or advertise that it is in any way connected with Licensor. Licensee
shall pay Licensor Royalties on all Items sold by it during the
period following any such termination. Notwithstanding such
termination, and only if such termination was not pursuant to the
provisions of any of Paragraphs 10.1, 10.2, or 10.3 hereof, and as
to that part of its inventory not purchased by Licensor or its
designee pursuant to Paragraph 11.3, Licensee shall have the right,
on a nonexclusive basis, for a period of one hundred eighty (180)
days following termination to fulfill and make delivery of all
orders received by it prior to such termination, and liquidate its
inventory of finished Items and for such purpose, and to use the
USPA Trademarks and label in the manner herein above set forth,
provided, however, that Licensee shall pay Royalties thereon as
herein provided.
11.2 Upon the expiration or termination of this Agreement, all rights to
USPA Trademarks shall revert to Licensor with the same force and
effect as though this Agreement had never been entered into and
no rights had ever been acquired by Licensee in connection therewith,
subject to the Provisions of Paragraph 11.1 above.
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11.3 Upon the expiration or termination of this Agreement for any reason,
Licensee shall forthwith deliver to Licensor a statement setting
forth its inventory of finished Items, all work in process, piece
goods and yarn, and any labels, tags, packaging or the like using
or incorporating the USPA Trademarks then on hand. In addition,
such schedule shall specify quantity, design and style and set
forth, to the extent practicable, Licensee's cost (as indicated
in the books and record of Licensee) of each of such Items. Licensor
or its designee may purchase all or any part of such Items, which are
included in the inventory of Licensee on the date of purchase for
any amount equal to (a) Licensee's cost for the foregoing which is
comprised of first-quality current season Items; or equal to (b)
the lower of market or Licensee's cost for merchandise comprised
of Items for any seasons earlier that the current season. The
purchase price for the inventory so purchased shall be payable
promptly upon Licensor's receipt of such inventory. Licensor may
offset the purchase against any amount due from Licensee.
12. RELATIONSHIP
12.1 Nothing herein contained shall be construed as establishing a
partnership or joint venture between the parties hereto, and
neither shall have the authority to bind or obligate the other
in any manner.
13. NOTICES
13.1 All notices under this Agreement shall be in writing and served
either personally or by registered or certified mail, return
receipt requested, at the address first above written, or such
other address as either party may, from time to time, designate
in writing, or by telex or fax. Copies of all notice shall also
be forwarded in the same manner as the original notice as follows:
(a) if to Licensor, to: Quade, Inc.
1384 Broadway
New York, NY 10018
(b) if to Licensee, to: Jenna Lane Kids, Inc.
1407 Broadway
New York, NY 10018
Attention: President
with a copy to: David Feldman, Esq.
36 West 44th Street
New York, NY 10036
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14. ASSIGNMENT
14.1 Neither party may assign any of its rights or obligations
hereunder without the prior written consent of the other. Licensor
may assign this Agreement to any entity or person which or who has
the right to license the UPSA Trademarks. Licensor shall be
released of all obligations and liabilities hereunder provided
that the assignee assumes in writing all of Licensor's
obligations hereunder.
15. MODIFICATION
15.1 This Agreement constitutes the entire understanding of the parties.
No provision of this Agreement may be changed or modified, nor may
this Agreement be discharged in part or in whole except by written
agreement signed by the party against whom the change, modification,
or discharge is claimed or sought to be enforced, or signed by it
or its agent, pursuant to the party's written and signed
authorization to make such change, modification or discharge.
16. ARBITRATION AND GOVERNING LAW
16.1 This Agreement shall be governed by and interpreted by the
substantive law of the situs of any court proceeding or
arbitration.
16.2 Any controversy or claim arising out of or relating to this
Agreement, its execution or breach shall be settled by a three(3)
member arbitration panel in the City of New York in accordance
with the Commercial Rules of the American Arbitration Association
and there to be administered by the commercial panel, and judgment
upon the award rendered may be entered in any court of competent
jurisdiction.
17. WAIVER
17.1 The failure of a party to insist upon strict adherence to any term
of this Agreement on any occasion shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of the Agreement. Any
waiver must be in writing.
18. CONSENT
18.1 Any consent or approval to be given hereunder may be delegated by
the party to give such consent or approval to any agent or
representative as such party may, from time to time, authorize
by written notice.
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19. SEVERABILITY
19.1 Any provision hereof that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or uneforceability, without invalidating
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
20. COUNTERPARTS
20.1 This Agreement may be executed by the parties hereto in one or more
counterparts, each of which shall be deemed an original and which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
QUADE, INC. JENNA LANE KIDS, INC.
By: /s/ By: /s/ Mitchell Dobies
-------------------------------- --------------------------------
Title: President Title: President
-------------------------------- --------------------------------
Date: 2/6/98 Date:2/9/98
-------------------------------- --------------------------------
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SCHEDULE A
USPA
UNITED STATES POLO ASSOCIATION
U.S. POLO ASSOCIATION
(FOUNDED 1890)
[GRAPHIC] [GRAPHIC] [GRAPHIC]
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SCHEDULE B
Misses, Petite, and Plus Size Sportswear
Woven Tops and Woven Bottoms
Knitted Tops and Knitted Bottoms
Screen Print "Logo Driven" Woven and Knitted Tops
Fleece Tops and Bottoms
Denim
Sweaters
Sportswear Dresses
Lycra Sportswear
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SCHEDULE C
Customer List
Mervyn's, Kohl's, J.C. Penny, Sears, Upton's, Catherine's, Navy (Nexcom),
Coast Guard, Marine Corps Exchange, AAFS, United Retail: The Avenue,
Lerner Woman, Sizes Unlimited; Mercantile Stores, Chadwicks, Wet Seal/
Contempo Casuals, Miller's Outpost, August Max Woman, QVC, Beall's of Florida,
Mongomery Ward & Co., Paul Harris, Rainbow Apparel, Brylane, G&G, Cato Corp.,
C.R. Anthony, Fred Meyer, Boscov's, Ann & Hope, Goody's, Ira A. Watson,
Oshman's Sporting Goods, and Specialty Stores.
Irregulars, Seconds
Marmaxx, Ross Stores, Burlington Coat, Filene's Basement, Daffy's,
Conway Stores, Sym's
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SCHEDULE D
Each Contract Year is defined as follows:
Year One: Februrary 1, 1998 to July 31, 1999. Minimum Sales are: $3.0 million
Year Two: August 1, 1999 to July 31, 2000. Minimum Sales are: $4.0 million
Year Three: August 1, 2000 to July 31, 2001. Minimum Sales are: $5.0 million
Guaranteed Minimum Royalty payments calculated at 5% will be paid as follows:
Year One: $150,000.00
Year Two: $200,000.00
Year Three: $250,000.00
Payment schedule will conform to the provisions within the contract.
Minimum Sales and Guaranteed Minimum Royalties in any Contract Year beyond
Year Three shall be the same as in Year Three.
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Exhibit 10.14
SUPPLY AND FINANCING AGREEMENT
THIS SUPPLY AND FINANCING AGREEMENT ("Agreement"), executed as of the
____ day of ____, 1998, by and among JENNA LANE, INC., a Delaware corporation
with an address at 1407 Broadway, Suite 2004, New York, New York 10018
("Contractor") and T.L.C. FOR GIRLS, INC., Debtor and Debtor-in- Possession, a
New York corporation with an address at 100 West 33rd Street, New York, NY 10001
("TLC" or the "Company").
WHEREAS, an involuntary chapter 7 petition was filed against the
Company on May 22, 1998 and the Company has consented to entry of an order for
relief and simultaneously therewith converted the case to a Chapter 11
Reorganization Case under the provisions of the U.S. Bankruptcy Code in the
United States Bankruptcy Court Southern District of New York (the "Petition")
and the Company is in possession and control of its business and assets; and
WHEREAS, subject to the terms hereof, Contractor desires to become the
exclusive supplier to the Company of children's garments of the type currently
sold by the Company ("Products"), and the Company desires to utilize the
Contractor as its exclusive supplier during the term hereof.
NOW, THEREFORE, in consideration of the mutual premises and the several
covenants and conditions of this Contract, Contractor and the Company hereby
agree as follows:
1. Exclusive Supplier. (a) The Company agrees to utilize Contractor as
its exclusive supplier for all Products to be made or sold by the Company and
Contractor agrees to supply, upon delivery terms to be agreed between the
Company and the Contractor, all Products that the Company shall require to
deliver to customers who have placed orders with the Company, provided, that
Contractor shall only be required to supply those Products which it believes are
economically beneficial to Contractor to supply and provided further, that all
Products which are currently in the process of being made or supplied for the
Company may be completed with other contractors currently designated therefor.
Subject to clause (b) below, if Contractor shall decline in writing to supply
any Products, the Company may utilize other contractors to supply such Products.
Contractor shall be deemed to have refused any opportunity to supply Products if
Contractor shall not have delivered to Company, by nationwide overnight courier
or hand delivery or facsimile delivery if the Company acknowledges receipt
thereof in writing, within three business days after delivery to Contractor of a
proposed purchase order for the supply of Products hereunder (the "Purchase
Order"), a copy of Contractor's purchase order for the purchase of raw materials
relating to such proposed Purchase Order, or other information conclusively
establishing Contractor's agreement to supply such Products.
(b) The parties acknowledge that purchase orders issued by the
Company's customers ("Purchase Orders") prior to the filing of the Petition and
pertaining to merchandise which was not shipped to the Company's customer prior
to the filing of the Petition ("Pre-Petition Purchase Orders") are intangible
assets of the Company and are the subject of a security interest in favor of
Finova Capital Corporation or an affiliate thereof ("Finova") as part of
Finova's security interest in intangibles and goodwill. Contractor shall not be
required to act as contractor hereunder to the Company unless the Contractor
obtains a senior, priority lien on the accounts receivable and proceeds created
by Contractor supplied Products as hereinafter provided. Within one business day
after the entry of an order approving this Agreement, the Company shall deliver
true and complete copies of all Pre-Petition Purchase Orders. In addition,
within one business day after the approval by the Bankruptcy Court of the terms
and conditions of this Agreement, the Company shall deliver true and complete
copies of all Purchase Orders issued between the filing of the involuntary
Petition and the approval of this Agreement ("Post-Petition Purchase Orders").
The Contractor shall determine whether to supply the Products in a Purchase
Order pursuant to the terms hereof within three business days after delivery of
all Pre-Petition Purchase Orders and Post-Petition Purchase Orders,
respectively.
2. Term. This Agreement shall be effective from the date hereof until
60 days after the date of entry of an Order of the Bankruptcy Court approving
the terms hereof, which Order shall be substantially in the form annexed hereto
(such 60-day period, the "Term"), provided, that the terms of this Agreement
shall continue to apply during the 60 day period after such termination only
with respect to any and all work in process or Products to be produced from
fabric purchased by Contractor or its subcontractors or purchase orders of the
Company delivered to the Contractor on or prior to the date of such termination
or such longer period as may be required to complete the sale of all Products
which are in process or subject to purchase orders of the Company or its
customers to Contractor on the date hereof. During such period, Contractor shall
be granted a limited license (the "License"), without payment of any licensing
fees, to use the names "T.L.C.", "T.L.C. For Girls" and "T.L.C. For Kids" for
the limited purpose of completing work in process and completing and delivering
the Products in accordance with this Agreement. The license shall automatically
expire at the end of such period. The parties may agree, in their individual and
sole discretion, to extend the terms hereof by written agreement among them.
3. Prices. The price of all Products produced by Contractor shall be
equal to the price which the Company charges to its customer, however,
Contractor reserves the right in its sole and absolute discretion to refuse to
produce Products at the Company's price, notwithstanding that it is the price
that the Company charges to its customer. In such event, the Company shall be
free, with no liability with respect thereto attaching to Contractor, to cause a
third party, to the extent permitted by the budget annexed hereto, to produce
the Products in question and to ship them to the Company's customer for no more
than the price the Company requested the Contractor to approve. The parties
agree that during the Term hereof (i) all billing to Company customers shall be
effected by the Company, (ii) the Company shall supply a copy to Contractor of
all invoices mailed or delivered to customers as and when issued to the
customer, (iii) the Company shall issue invoices to its customers on the date
that Contractor advises the Company in writing that the Products were shipped
and (iv) the Company shall be responsible for collection of all accounts
receivable from such customers and shall hold such collections in trust for
Contractor for payment to Contractor for its invoices for the production of the
Products, including the cost of materials in connection therewith. Obligations
of the Company to Contractor with respect to all Products produced by Contractor
shall hereinafter be referred to as "Contractor Loans".
4. Possible Payment of Portion of Net Profit. In the event that
Contractor shall not be the successful purchaser of all or substantially all the
assets of the Company and such assets shall be sold in an arm's-length
transaction to a single third party or affiliates thereof, within 45 days after
such sale, Contractor shall remit and pay to the Company an amount equal to
forty percent (40%) of the aggregate Net Profit (as defined in clause (f) below)
with respect to Products sold and delivered to Company's customers hereunder
determined through the date of the final shipment thereof. For purposes hereof,
the following definitions shall be applicable:
(a) "Net Sales" with respect to a particular item of
merchandise sold means the price at which the Company sells such piece to a
customer less any allowances, discounts, returns or markdowns taken by such
customer with respect to such piece.
(b) "Cost Per Piece" means the direct out-of-pocket cost to
Contractor (including all out-of-pocket costs to Contractor's subcontractors),
as reasonably determined by Contractor, of such piece of goods sold F.O.B.
including duty, freight and agent's commission with respect to such piece.
(c) "Gross Profit" with respect to a particular piece of
goods, means the difference between the Net Sales of such piece and the Cost Per
Piece.
(d) "Applicable Corporate Overhead" shall mean certain fixed
expenses of Contractor to be negotiated between the constituent parties
provided, however, that in the event the parties are unable to agree, after
negotiation in good faith, on the amount of such fixed expenses, the dispute
shall be submitted for determination to the Bankruptcy Court.
(e) "Pro Rata Share of Applicable Corporate Overhead" shall
mean the proportion of Applicable Corporate Overhead equal to the percentage
that the aggregate Net Sales from the sale of Products by the Company to its
customers bears to the Contractor's consolidated net sales for the same period,
excluding any portion of Net Sales which have been retained by Contractor.
(f) "Net Profit" means Gross Profit less Pro Rata Share of
Applicable Corporate Overhead, after repayment of all Overhead Loans (as
hereinafter defined) which shall not have been repaid (and any applicable
interest thereon).
5. Subject to Standard Terms. All sales under this Agreement are
subject to the standard terms and conditions contained on Contractor's sales
orders, invoices and shipping documents, copies of which have been supplied to
the Company, and to the terms and conditions of the Company's purchase orders
and related documents, copies of which have been supplied to Contractor, and to
the terms and conditions stated therein, provided, however, that if the terms of
Contractor's standard documents conflict with the provisions of the Company's
standard documents, then the terms and conditions set forth in Contractor's
standard documents shall control.
6. Payment. The Company shall pay all invoices for Products within 30
days after Contractor ships the same to the Company or the Company's customer
("Shipping Date"), provided, that no failure to pay such invoices shall
constitute a default hereunder unless the Company fails to remedy such
non-payment within the later of (i) thirty (30) days after receipt of written
notice of non-payment from the Contractor, if such written notice is sent within
thirty (30) days after such payment shall have been due (the "Initial Date") or
(ii) ten (10) business days after receipt of written notice of non-payment from
the Contractor if such written notice is sent after the Initial Date. The
Company's obligation to pay all invoices for Products and make all other
payments hereunder shall in no respect be conditioned upon the Company's receipt
of any payment from its customers with respect to the sale of any Products. The
Company shall be obligated to execute a promissory note with respect to any and
all invoices for Products not paid within 30 days after Shipping Date, such
promissory note to be in form and content reasonably acceptable to Contractor
and secured by the Company's assets and properties under a Bankruptcy Court
approved Security Agreement And Assignment. If Contractor's affiliate is the
successful purchaser of the "Transferred Assets" as that term is defined in a
certain sale agreement between Company and Contractor's affiliate, no payments
shall be required pursuant to this Paragraph 6, other than as set forth in
paragraph 3 (iv) hereof.
7. Overhead Loans. (a) Contractor agrees, commencing at the beginning
of the Term, on a weekly basis, during the Term (i.e., the 60-day period
referred to in Paragraph 2), to loan to the Company an amount to cover its fixed
overhead, which amount shall be advanced as necessary to timely (to the extent
reasonably commercially practicable) fund such overhead pursuant to the
agreement between the parties to be reached following the date hereof, and which
shall not exceed $132,300.00 per month ("Overhead Loans"). Such sum shall be
expended as per the attached budget.
(b) After an Overhead Loan shall be outstanding for three
months, the unpaid amount shall bear interest thereafter at an annual rate of
nine percent (9%). Upon the execution and delivery hereof, the Company shall
execute and deliver to the Contractor a promissory note reflecting the
foregoing and other customary terms in the form annexed hereto.
(c) Notwithstanding anything to the contrary contained herein,
in no event shall Contractor have any obligation to make any Overhead Loans from
and after the date on which at least ten percent (10%) of the aggregate amounts
reflected in all purchase orders with respect to Products shipped or to be
shipped in any 30-day period during the term hereof have been canceled or
returned by the Company's customer ("Material Shipping Reduction").
(d) If Contractor shall fail to make any Overhead Loan which
it is obligated to make hereunder, after three business days' written notice and
opportunity to cure during such three-day period, in addition to any other
remedies which Company may have, the first priority security interest described
in Section 8 hereof shall no longer apply to an amount equal to twenty percent
(20%) of any Overhead Loans which shall theretofore have been advanced (the
"Reduction Amount"), and such Reduction Amount shall be treated as a
pre-petition unsecured indebtedness of the Company to Contractor. No Reduction
Amount shall apply if the reason for Contractor's failure to make any Overhead
Loan is as a result of a Material Shipping Reduction.
(e) Notwithstanding anything to the contrary contained herein,
Contractor agrees that it shall write off or capitalize and not enforce the
repayment of Contractor Loans (other than the Company's obligations under
paragraph 3(iv) hereof and Overhead Loans from and after the date that
Contractor shall consummate the purchase of all or substantially all the assets
of the Company pursuant to a Purchase Agreement in form reasonably acceptable to
Contractor and the Company and approved by the Bankruptcy Court.
8. Security Interest. (a) The Company shall execute and deliver to the
Contractor the attached Security Agreement And Assignment to ensure that
Contractor has security interests, as to all amounts due to Contractor
hereunder, in all of the following assets of the Company ("Collateral"):
(i) a priming lien pursuant
to ss.364(d)(1) of the Bankruptcy Code in pre-petition customer orders and
contract rights, provided that nothing shall be construed to grant Jenna Lane a
lien on proceeds of inventory which existed on the petition date,
(ii) a lien pursuant to
ss.364(c)(2) of the Bankruptcy Code on post-petition accounts, inventory,
customer orders and contract rights, and all pre-petition assets which are not
subject to a lien in favor of Finova, including machinery and
equipment, furniture and fixtures,
and in any case, where an
account has arisen from post-Petition sales of goods, the interest of the
Company in such goods, all books and records pertaining to the foregoing and
equipment containing said records
(iii) a lien on the
collateral covered by the Continuing Lien, as defined herein, pursuant to
ss.364(c)(3) of the Code, junior, in each case, only to the Continuing Lien
granted Finova under a post-petition financing order by the Bankruptcy
Court. For the purposes of this paragraph 8, the term "Continuing Lien" shall
mean a continuing first priority lien in favor of Finova in general intangibles
(except for prepetition customer orders and contract rights) and prepetition
accounts and inventory.
(b) The parties agree that it is a condition precedent to the
terms hereof that the Company shall execute and deliver a Security Agreement And
Assignment with the Contractor reflecting the foregoing terms and other
customary provisions in the form annexed hereto as Exhibit A. The granting of
the liens provided in this paragraph and otherwise herein, and the validity and
enforceability thereof shall not require Contractor to obtain or record Uniform
Commercial Code Financing Statements, but notwithstanding, the Company agrees to
execute and deliver UCC-1 Financing Statements upon demand of Contractor and
consent to the filing thereof by or on behalf of Contractor.
9. Notices. All notices and requests for consent hereunder shall be in
writing and sent by registered mail, return receipt requested, by nationwide
overnight courier or by telecopier against written confirmation of receipt
thereof, sent to any party at the address first set forth above or such other
address as any party shall notify the other parties hereto in accordance with
this Section 9.
10. Liability. CONTRACTOR SHALL HAVE NO LIABILITY TO THE COMPANY OR
COMPANY'S CUSTOMERS, OR OTHER THIRD PARTIES, FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OR RESULTING FROM TERMINATION OF
THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS. Contractor shall not be liable to
the Company on account of termination or expiration of this Agreement for loss
of goodwill, prospective profits or anticipated orders, or on account of any
expenditures, investment s, leases or commitments made by the other, or for any
reason whatsoever based upon or growing out of such termination or expiration
unless such termination results directly from a material breach of the terms
hereof by Contractor. Nothing in this Section 10 shall be deemed to prohibit
Contractor or the Company from seeking its damages arising from a breach of this
Agreement even if such breach leads to a termination of this Contract. The
provisions of this Section 10 shall survive any termination of this Contract.
11. Indemnification. The Company hereby indemnifies and holds harmless
the Contractor with respect to any and all liabilities, costs, damages, expenses
and claims (including without limitation reasonable attorneys fees and costs of
investigation) incurred as a result of any breach by the Company of any of the
terms hereof. The Contractor hereby indemnifies and holds harmless the Company
with respect to any and all liabilities, costs, damages, expenses and claims
(including without limitation reasonable attorneys fees and costs of
investigation) incurred as a result of any breach by the Contractor of any of
the terms hereof, unless such breach results from the receipt by Contractor of
material adverse information concerning the Company which has not been disclosed
to Contractor prior to the date hereof. The provisions of this Section 11 shall
survive any termination of this Contract.
12. Bankruptcy Provisions. This Agreement and the credit and debt
obligations incurred and to be incurred by the Company to Contractor are subject
to the approval of the United States Bankruptcy Court for the Southern District
of New York in the Chapter 11 proceedings filed by the Company. The Company
agrees to immediately file and support an emergency motion to the Bankruptcy
Court on such notice as shall be required by the Bankruptcy Code and the Federal
Rules of Bankruptcy Procedure to obtain approval of the Agreement and the
creation of the credit and financial obligations hereunder by the Company to the
Contractor. It is the intention of the parties hereto that the Company's
execution and performance of this Agreement and the Company's obtaining of
credit and/or incurring of debt to the Contractor be granted a super priority
administrative expense with priority over any and all administrative expenses of
the kind specified in ss.503(b) or 507 of the Bankruptcy Code and that such
credit and/or incurred debt by the Company to the Contractor be secured by the
liens specified and the property identified in paragraph 8(a) hereof pursuant to
Bankruptcy Code ss.ss.364(c)(2) and (3) and 364(d)(1), and that such Order
further provide to Contractor the benefits and protections set forth in
subsection (e) of Bankruptcy Code ss.364. Notwithstanding anything contained in
this Agreement, there shall be no obligation of Contractor to produce or sell
Products to the Company or to advance or make any credit or Overhead Loans to
the Company unless and until the Court approves this Agreement and grants the
aforesaid security interest, liens and priority by Court Order in form and
content acceptable to Contractor.
13. Confidentiality. If all or substantially all the assets of the
Company are directly or indirectly sold in an arm's-length transaction to the
beneficial or direct ownership of any single third party or affiliates thereof
which are unaffiliated with the Company, whether such transfer is effected by
auction, sale, plan of reorganization or otherwise, the Contractor agrees that
it shall keep in confidence and not reveal to third parties all confidential and
nonpublic information which it shall have acquired from the Company. The
foregoing provisions shall not apply to (i) information which is or becomes
generally available to the public through no improper act of Contractor or its
agents, (ii) information which Contractor may be required to disclose by legal
process, judicial order, subpoena, or pursuant to other law or regulation,
including without limitation federal or state securities laws or regulations or
(iii) information which was lawfully in the possession of Contractor or its
agent prior to the commencement of its discussions with the Company.
14. Miscellaneous. This Agreement shall be binding upon and inure to
the benefit of each party and its successors and assigns. This Agreement may not
be assigned by the Company or Contractor (except to a wholly-owned subsidiary of
Contractor) without the written consent of the other party. This Agreement is
made under the laws of the State of New York and shall be governed by the laws
of such state, without regard to conflicts of laws rules thereof. Copies of this
Agreement may be executed separately by the parties hereto and once executed by
all parties hereto, all such copies taken together shall constitute a single
document. This Contract, together with the schedules and exhibits hereto and
other documents expressly referred to herein, all of which are incorporated by
reference into this Contract, supersedes any other agreement, whether written or
oral, that may have been made or entered into in connection with the matters
contemplated hereby, and constitutes the entire agreement by the parties
concerning the subject matter hereof. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable,
such invalidity or unenforceability shall not extend to or affect any other
provision hereof. Notwithstanding anything to the contrary herein, it shall be a
condition precedent to the effectiveness and enforceability of any of the terms
hereof, that the parties shall execute and deliver the following documents
subject to customary conditions, other conditions to be agreed and the approval
of the Bankruptcy Court: (i) a Purchase Agreement with respect to the proposed
purchase of the Company's assets, (ii) a Security Agreement and Assignment in
the form annexed hereto, (iii) a Secured Promissory Note in the form annexed
hereto and (iv) such other documents as both parties shall determine.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
JENNA LANE, INC.
By: Mitchell Dobies, President
T.L.C. FOR GIRLS, INC.
Debtor and Debtor-in-Possession
By: Walter Ginsberg, President
AMENDMENT TO THAT CERTAIN SUPPLY AND FINANCING AGREEMENT, dated as of
June 2, 1998, by and between Jenna Lane, Inc., a Delaware corporation and T.L.C.
for Girls, Inc., a New York corporation.
WHEREAS, Contractor and Company are parties to that certain Supply and
Financing Agreement, dated as of May 20, 1998 (the "Agreement"), all capitalized
terms not otherwise defined herein having their respective meanings as set forth
in the Agreement, and
WHEREAS, the Company and Contractor desire to amend the terms of the
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, premises and
undertakings herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Notwithstanding anything to the contrary contained in the Agreement,
the parties hereto agree that Company hereby assigns, transfers and conveys
ownership to Jenna Lane, free and clear of all liens and other encumbrances, all
accounts receivable with respect to Products which are produced by Contractor
hereunder. Further, Contractor and Company will expressly and irrevocably
instruct in writing all customers purchasing Products which are produced by
Contractor to make full payment with respect to such Products directly to
Contractor's factor, Republic Factors ("Republic" ). Contractor shall either
factor with or assign to Republic each of said accounts. A condition to this
arrangement shall be that Republic shall agree that upon such factoring or
assignment, Republic shall set aside, upon collection, an amount equal to ten
percent (10%) of the face value of said account in a separate account (the
"Holdback Amount"). The Holdback Amount shall be paid by Republic to Contractor
if Contractor or its wholly owned subsidiary is the successful purchaser of the
Company's assets pursuant to the Purchase Agreement executed by Jenna Lane Kids,
Inc., a wholly-owned subsidiary of Contractor, on May 27, 1998. If Contractor is
not the successful purchaser of Company's assets, the Holdback Amount shall be
paid (a) to Company and its estate to the extent required as a credit towards
the payment required under Section 4 of the Agreement upon delivery to Republic
of a letter signed by Contractor, Company and counsel to the Company's Committee
of Unsecured Creditors directing such payment or a final order of the Bankruptcy
Court and (b) to Contractor of the balance of the Holdback Amount, if any.
Republic also shall agree to provide a written monthly accounting of its
receipts and disbursements from said account, which shall not be commingled with
any other account maintained by or on behalf of Republic.
2. The term of the Agreement is hereby extended for a period of six
months beyond its expiration pursuant to the existing terms of the Agreement,
but solely for the purpose of completing collection of the accounts receivable
with respect to the sale of Products.
3. To the extent the provisions hereof conflict with the terms of that
certain Security Agreement and Assignment between Contractor and the Company,
the terms hereof shall be deemed to control.
4. By its execution hereof, Finova Capital Corporation ("Finova")
consents to the release and discharge of any lien or encumbrance on the accounts
and proceeds thereof assigned to Contractor hereunder.
5. In all other respects, the Agreement shall remain in full force and
effect and unmodified.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the 2nd day of June, 1998.
JENNA LANE, INC.
By:
Mitchell Dobies, President
T.L.C. FOR GIRLS, INC.,
Debtor and Debtor-in-Possession
By:
Walter Ginsberg, President
CONSENTED TO AND AGREED
THIS DAY OF JUNE, 1998:
REPUBLIC FACTORS CORPORATION FINOVA CAPITAL CORPORATION
By: By:
Name and Title: Name and Title:
Exhibit 10.15
JENNA LANE KIDS, INC.
1407 BROADWAY, SUITE 2004
NEW YORK, NY 10018
May 27, 1998
T.L.C. for Girls, Inc.
100 West 33rd Street
New York, NY
Attention: Walter Ginsberg
Dear Mr. Ginsberg:
Jenna Lane Kids, Inc., a Delaware corporation ("JLK") is a newly formed
Delaware corporation. Subject to countersignature of this letter and notice and
hearing in the United States Bankruptcy Court in which the Chapter 11 case of
T.L.C. for Girls, Inc., debtor and debtor-in-possession (" TLC" or the "DIP") is
pending, JLK proposes to acquire substantially all of the assets (the "Assets")
of the DIP. The following are the terms and conditions under which JLK is
prepared to acquire the Assets:
1. Terms of Sale. JLK will acquire the Assets in a sale pursuant to
Bankruptcy Code Sec. 363(b), (f) and (m) free and clear of all liens and
encumbrances (which includes but is not limited to statutory and consensual
liens, judgment liens, tax liens, security interests, mortgages, deeds of trust,
title retention agreements, co-ownership interests, pre-petition claims, post
petition administrative claims and charges under Bankruptcy Code Sec. 507 and
503(b), 506(c) and fees of the United States Trustee (pursuant to 28 USC
1930(a)(6)), with liens and encumbrances, if any, to attach to proceeds. We
acknowledge that this offer is subject to higher and better offer and that the
process by which our offer will be brought to the attention of the Bankruptcy
Court will be a bidding process. Executory contracts identified by JLK as
contracts it desires to acquire and requiring assumption by the DIP will be
assumed and assigned under the provisions of Bankruptcy Code Sec. 365 and JLK
will satisfy the cost of curing the defaults thereunder, if any.
2. Purchase Price. The price to be paid for the Assets will be
$350,000, to be paid upon transfer of the Assets to JLK at Closing (as
hereinafter defined). In addition, if JLK is the successful purchaser of the
Assets, JLK or Jenna Lane, Inc., a Delaware corporation and the owner of all the
capital stock of JLK ("Jenna Lane") shall write off or capitalize and not
enforce the repayment of all claims as contractor and for Overhead Loans (as
defined in that certain Supply and Financing Agreement between Jenna Lane and
the DIP (the "Supply and Financing Agreement")).
3. Assets. The assets to be acquired, which in all events shall
include any proceeds thereof, are as follows:
(A) Cash on hand and in banks;
(B) Accounts receivable (to the extent created post-petition);
(C) Machinery, equipment, office supplies, furniture and
fixtures, if any, at all of DIP's premises wherever located including showrooms,
offices in New York and the warehouse occupied by the DIP's affiliate in New
Jersey;
(D) Inventory (to the extent acquired post-petition),
including raw materials, finished goods, work in process and samples;
(E) All intellectual property, including the trademarks,
tradenames and goodwill represented by the intellectual property listed upon
Exhibit A to this letter;
(F) Any and all books and records of the DIP, other than its
corporate stock transfer books and stock transfer ledgers;
(G) Open orders by the DIP for materials;
(H) Open purchase orders from customers;
(I) Any and all of the DIP's security and/or customer deposits
applied or against accounts created or acquired postpetition, general
intangibles (other than tax refunds and insurance claims), contract rights;
(J) Logos, styles, style numbers, customer lists, pricing of
customer orders and goodwill associated therewith;
(K) Patterns, markers, and all manufacturing and selling
proprietary information and documentation associated therewith; and
(L) Pre-petition executory contracts identified by JLK as
contracts that it desires to purchase that are to be assumed by the DIP and
assigned after defaults are cured under Sec. 365 of the Bankruptcy Code.
4. Court Proceedings. The DIP shall obtain an order of the United
States Bankruptcy Court seeking authority to sell the Assets to JLK subject to
higher and better offer (the "Sale Order"). On that same date and time, the DIP
shall bring on for hearing motions to assume the executory contracts listed on
Exhibit B to this letter ("Executory Contracts") and to assign them to JLK or to
JLK's designee. If required by the Bankruptcy Court, Jenna Lane will guarantee
performance by JLK under such Executory Contracts assumed by JLK.
5. Sale Order. Promptly upon the execution of this letter by JLK and by
DIP but in no event later than May 26, 1998, DIP shall file papers necessary to
obtain the Sale Order providing for notice and hearing for the sale of the
Assets subject to higher and better offer. In the event that such a hearing is
not conducted prior to July 15, 1998 or that an order no longer subject to
appeal has not been entered in the DIP's case approving the sale of the Assets
to JLK before July 31, 1998, then JLK, in its sole discretion, may, but need not
terminate this agreement without any further obligation.
6. Higher and Better Offer. (a) Any offer made by any party other than
JLK ("Higher and Better Offer") shall be on substantially the same terms and
conditions as provided in this letter agreement and shall, in order to be a
Higher and Better Offer, exceed the purchase price set forth herein by at least
$75,000, and shall include an amount equal to the Overhead Loans actually
advanced by Jenna Lane. JLK shall be permitted, but shall not be obligated, to
raise its offer to purchase the Assets to any amount higher than the Higher and
Better Offer which the DIP desires to accept. All Higher and Better Offers must
be on the same terms (other than price) as set forth herein.
(b) In the event the Bankruptcy Court enters an order
approving any Higher and Better Offer and the DIP consummates a transaction in
accordance with such Higher and Better Offer, DIP shall promptly pay to JLK or
its designees (i) a break-up fee ("Break-Up Fee") equal to $50,000, plus (ii)
all Overhead Loans advanced by Jenna Lane, plus any required interest thereon
pursuant to the Supply and Financing Agreement. The obligations of the parties
contained in the Supply and Financing Agreement shall continue pursuant to the
terms thereof in spite of the entry of an order approving any Higher and Better
Offer.
7. Conduct of DIP's Business. Between the execution of this letter
agreement and the earlier of the closing or termination of this letter agreement
pursuant to its terms, the DIP shall:
(a) make sales only in the ordinary course of business;
(b) not grant any customer any rebate, discount, credit or
advertising allowance in excess of $10,000 (with respect to goods shipped
post-petition), without the prior written consent of JLK or Jenna Lane;
(c) not accept returns of merchandise shipped post-petition,
except in the ordinary course of business;
(d) not close out or sell any of its finished goods inventory
at prices more than 25% below its ordinary and customary selling price except
that DIP may sell below 75% of its ordinary and customary selling prices,
damaged, returned and end of season goods;
(e) not agree to the cancellation of any open orders in excess
of $10,000;
(f) not sell any of the Assets other than inventory in the
ordinary course of business;
(g) maintain in full force and effect, its corporate existence
and all intellectual property which it may own;
(h) not pay any compensation to employees beyond their base
salaries and commission as being paid 30 days prior to the commencement of the
Chapter 11 Case of the DIP;
(i) not make any dividends or other distributions of cash or
property to shareholders; and
(j) not transport any portion of the Assets to any
jurisdiction other than the ones in which they are presently located, except in
the ordinary course of business.
8. Change of Name. DIP shall upon the Closing execute a Certificate of
Amendment to its Certificate of Incorporation to effect a change of its name to
one which shall not contain the words "T.L.C.," "Tender Loving Care," or similar
words. JLK shall pay the filing fees therefor and effect the filing after the
execution of the certificate by required officers of the DIP.
9. Termination. This agreement and any obligation of JLK to acquire the
Assets may be terminated at any time prior to the Closing:
(a) by the mutual written consent of DIP and JLK, in their
sole discretion;
(b) by JLK, if the order approving the sale shall not have
been entered by July 31, 1998;
(c) if there shall be a Material Shipping Reduction (as
defined in the Supply and Financing Agreement); or
(d) if the Bankruptcy Court shall approve any Higher and
Better Offer.
10. Effect of Termination. In the event of the termination of this
letter pursuant to Paragraph 9, there shall be no liability on the part of any
party except to the extent the DIP shall be obligated to pay the Break-Up Fee to
JLK and the parties shall have their respective obligations set forth in the
Supply and Financing Agreement.
11. Closing. The consummation of the transfer of the Assets ("Closing")
shall occur no later than one business day following the entry of the Sale
Order.
12. Certain Representations and Warranties. The DIP hereby represents
and warrants to JLK and Jenna Lane as follows, which representations and
warranties shall survive the Closing for a period of two (2) years:
(a) DIP has taken all corporate action and other proceedings
necessary to enable DIP to enter into and carry out its obligations
under this Agreement.
(b) DIP has or at Closing will have good and marketable title
to the Assets, free and clear of all claims, liens, security interests,
and encumbrances, or rights of others of any nature, and DIP is
exclusively entitled to possess and dispose of the same and consummate
the transactions contemplated hereby.
(c) The execution, delivery and performance of this Agreement
by DIP, and the sale of Assets pursuant to this Agreement, are not in
violation of, and will not, with the giving of notice, the obtaining of
consent, or the passage of time, constitute a default under any
contract, lease, indenture, agreement, order, judgment, decree or real
property variance to which DIP is a party or by which it is bound or to
which any of the Assets is subject.
(d) DIP is not or at Closing will not be engaged in, or
threatened with, any litigation, governmental investigation or other
proceeding or controversy which may materially adversely affect DIP's
obligation to consummate this Agreement, title to the Assets or DIP's
rights to transfer the Assets to JLK.
(e) This Agreement constitutes a valid and binding obligation
of DIP, enforceable against it in accordance with the terms hereof.
(f) There are no employee benefit plans, as defined in
Section 3.3 of Employee Retirement Income Security Act of 1974, as
amended, in effect with respect to the DIP's business. To the best of
DIP's knowledge, the DIP has no reason to believe that it is not in
compliance with existing labor laws and regulations.
(g) The DIP has filed or obtained lawful extensions to file
all federal, state and local tax returns and other tax returns which
are required to be filed with respect to its business, and all taxes
due with respect thereto from DIP have been paid.
13. No Assumption of Liabilities. Neither JLK nor Jenna Lane shall
assume, pay or discharge or in any respect be liable for any liability,
obligation, commitment or expense of DIP or of T.L.C. for Kids, Inc. on a
pre-petition basis ("TLC Pre-Petition"), including without limitation any
liability (actual or contingent), loss, commitment, obligation or expense of DIP
or TLC Pre-Petition relating to the negotiation, preparation or performance
under this Agreement or relating to any tax liabilities of any nature
whatsoever, except as expressly agreed in writing by JLK. JLK shall have no
liability by virtue of being a transferee of the Assets. Notwithstanding the
foregoing, in no event shall JLK or Jenna Lane seek to recover any cash advances
either may have made (other than in connection with the production of goods) to
services providers of T.L.C. for Girls, Inc. on a pre-petition basis. The Sale
Order shall confirm and provide for the foregoing matters.
14. Miscellaneous. This letter agreement shall be binding
upon and inure to the benefit of each party and its successors and assigns. This
letter agreement may not be assigned by either party hereto (except to an
affiliate of JLK) without the written consent of the other party. This letter
agreement is made under the laws of the State of New York and shall be governed
by the laws of such state, without regard to conflicts of laws rules thereof.
Copies of this letter agreement may be executed separately by the parties hereto
and once executed by all parties hereto, all such copies taken together shall
constitute a single document. This letter agreement, together with the schedules
and exhibits hereto and other documents expressly referred to herein, all of
which are incorporated by reference into this letter agreement, supersedes any
other agreement, whether written or oral, that may have been made or entered
into in connection with the matters contemplated hereby, and constitutes the
entire agreement by the parties concerning the subject matter hereof. If any
provision of this letter agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, such invalidity or unenforceability
shall not extend to or affect any other provision hereof.
If all of the foregoing accurately reflects our understanding, kindly
(a) sign and return a copy of this letter to us and (b) no later than five
business days from the date of this agreement make application to the United
States Bankruptcy Court bringing on a hearing to approve the sale of the Assets
which order shall not be returnable any later than June 30, 1998.
Very truly yours,
JENNA LANE KIDS, INC.
By: s/Mitchell Dobies
Mitchell Dobies, President
AGREED AND ACCEPTED AS OF
THE DATE FIRST ABOVE WRITTEN:
T.L.C. FOR GIRLS, INC.
Debtor and Debtor-in-Possession
By: s/Walter Ginsberg
Walter Ginsberg, President