Exhibit 2.1
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
SPRINGS GLOBAL US, INC.
AND
CROWN CRAFTS INFANT PRODUCTS, INC.
Dated as of November 5, 2007
TABLE OF CONTENTS
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Page
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ARTICLE I. PURCHASE AND SALE OF ASSETS AND ASSUMPTION
OF LIABILITIES
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SECTION 1.01
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Purchased Assets
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1
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SECTION 1.02
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Excluded Assets
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3
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SECTION 1.03
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Assumption of Certain Obligations and Liabilities
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3
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SECTION 1.04
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Purchase Price
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3
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SECTION 1.05
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Adjustments to Preliminary Purchase Price
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4
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SECTION 1.06
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Allocation of Purchase Price
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6
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SECTION 1.07
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Taxes
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6
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SECTION 1.08
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Liabilities; Proration
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7
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SECTION 1.09
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Consent of Third Parties
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7
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ARTICLE II.
REPRESENTATIONS AND WARRANTIES
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SECTION 2.01
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Representations and Warranties of Seller
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4
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SECTION 2.02
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Representations and Warranties of Purchaser
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14
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ARTICLE III.
ADDITIONAL COVENANTS AND AGREEMENTS
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SECTION 3.01
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All Reasonable Efforts
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15
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SECTION 3.02
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Audited Financial Statements
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15
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ARTICLE IV.
CLOSING
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SECTION 4.01
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The Closing
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15
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SECTION 4.02
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Deliveries by Seller
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15
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SECTION 4.03
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Deliveries by Purchaser
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16
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SECTION 4.04
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Passage of Title at Closing
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17
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SECTION 4.05
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Retention of and Access to Records
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17
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ARTICLE V. INDEMNIFICATION
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SECTION 5.01
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Agreement of Seller to Indemnify Purchaser
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17
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SECTION 5.02
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Agreement of Purchaser to Indemnify Seller
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18
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SECTION 5.03
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Procedures for Indemnification
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18
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SECTION 5.04
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Establishment of Indemnification Liability
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19
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SECTION 5.05
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Settlement of Third Party Claims
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19
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SECTION 5.06
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Duration
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19
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SECTION 5.07
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Limitations
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20
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SECTION 5.08
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Investigations
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20
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SECTION 5.09
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Sole and Exclusive Remedy
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20
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TABLE OF CONTENTS
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Page
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ARTICLE VI.
MISCELLANEOUS
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SECTION 6.01
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Expenses
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21
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SECTION 6.02
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Interpretation
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21
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SECTION 6.03
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Notices
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21
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SECTION 6.04
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Counterparts
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22
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SECTION 6.05
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Governing Law
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22
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SECTION 6.06
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Assignability
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23
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SECTION 6.07
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Waivers and Amendments
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23
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SECTION 6.08
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Third Party Rights
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23
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SECTION 6.09
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Entire Agreement
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23
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SECTION 6.10
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Severability
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23
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SECTION 6.11
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Enforcement of Agreement
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23
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SECTION 6.12
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Arbitration
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23
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EXHIBITS
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Exhibit A:
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Escrow Agreement
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Exhibit B:
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Bill of Sale
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Exhibit C:
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Assignment and Assumption Agreement
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Exhibit D:
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Noncompetition Agreement
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Exhibit E:
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Transition Services Agreement
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Exhibit F:
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Warehousing Agreement
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Exhibit G:
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Seller License Agreement
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT
(the
Agreement
) is made and entered into as of the 5th
day of November, 2007, by and between
SPRINGS GLOBAL US, INC
., a Delaware corporation
(
Seller
), and
CROWN CRAFTS INFANT PRODUCTS, INC.
, a Delaware corporation
(
Purchaser
).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS
, Seller is engaged in the business of designing, marketing, importing, selling and
distributing various types of bedding, blanket and bath products and related accessories for the
infant and toddler retail market through Sellers unincorporated baby product line (the
Business
); and
WHEREAS
, Seller desires to sell and transfer to Purchaser certain of its assets, rights and
properties relating to the Business, and Purchaser desires to purchase such assets, rights and
properties and has agreed to assume certain liabilities of Seller relating to the Business, in each
case in the manner and upon the terms and conditions hereinafter set forth;
NOW, THEREFORE
, in consideration of the material covenants, agreements, representations and
warranties contained in this Agreement, and intending to be legally bound thereby, the parties
hereto hereby agree as follows:
ARTICLE I.
PURCHASE AND SALE OF ASSETS AND ASSUMPTION OF LIABILITIES
SECTION 1.01
Purchased Assets
. Upon the terms and subject to the conditions set forth
in this Agreement, Seller agrees to sell, convey, transfer, assign and deliver to Purchaser, and
Purchaser agrees to accept and purchase from Seller, all of the right, title and interest of Seller
in, to and under the following assets, rights and properties of Seller (collectively, the
Purchased Assets
, which shall in no event include the Excluded Assets (as hereinafter
defined)), free and clear of all liens, encumbrances, charges, security interests, pledges and
claims of any kind whatsoever (
Liens
) other than Permitted Liens (for purposes of this
Agreement,
Permitted Liens
means (i) Liens for taxes or assessments not yet delinquent or
that are being contested in good faith and by appropriate proceedings; (ii) Liens imposed by law,
such as Liens of carriers, warehousemen, mechanics, materialmen and landlords, and other similar
Liens incurred in the ordinary course of business consistent with past practices for sums that are
not overdue; (iii) as to any leased or licensed assets or properties, rights of the lessors or
licensors thereof; and (iv) the Liens described on
Schedule 1.01
):
(a)
Inventory
. All of the inventory of finished goods used or held for use in
connection with the Business (including all closeouts) (the
Inventory
), together with all
purchase contracts and orders for the same, and all bills of lading, trust receipts, warehouse
receipts and other documents of title of whatever kind and description to the extent relating to
the foregoing, other than (i) any unidentifiable, unsalable or damaged Inventory, any items of
Inventory that have not been classified by Seller as first quality and any Inventory that does not
meet generally accepted industry standards for first quality goods (it being acknowledged and
agreed that industry standards allow for up to a four percent (4%) off-quality-level variation in
first quality goods (the
Variance
)); (ii) any labels, inserts, supplies or packaging
that Purchaser cannot use because of wrong declaration of responsibility or failure to meet any
other legal requirement; and (iii) any Inventory that has been transferred for sale at Sellers
outlet stores (all Inventory to be transferred to the Purchaser pursuant to this Section 1.01(a),
the
Eligible Inventory
).
(b)
Intellectual Property
. All of the following used solely in the Business: patents
and patent applications; copyrights and copyright applications; trademarks, trademark applications,
service marks, logos, trade names, slogans, brands and all similar rights to names (including
trademark applications with respect to Welcome to the World and Everything Kids (collectively,
the
Specified Applications
)) and any and all variations thereof, together with all
applications for any of the foregoing; inventions, discoveries, improvements, processes, methods,
designs, data, drawings and product and process specifications; cost sheets, artwork, screens,
films, samples, molds, test procedures and specifications; trade secrets, confidential information,
know-how and ideas, whether patentable or not; data processing records, written instructions for
procedures, technical information and related data; and all goodwill to the extent associated with
any of the foregoing and all rights to use the same (collectively, the
Intellectual
Property
).
(c)
Licenses
. All licenses, sublicenses and other assignments or permissions of
Seller with respect to all active product programs and all closeout Inventory included within the
Eligible Inventory, each of which is set forth on
Schedule 1.01(c)
(the
Licenses
).
(d)
Sales Agent Contracts
. All of Sellers rights under the sales agency contracts
listed on Schedule 1.01(d) (the Contracts).
(e)
Business Records, Marketing Materials and Certain Related Assets
. To the extent
(i) under Sellers possession or control and (ii) used in the Business or related to the Purchased
Assets: originals or copies of all books, records, manuals and other materials (including all
records and materials maintained at the headquarters, manufacturing facilities and sales offices of
the Business and at the locations of the Businesss suppliers), advertising materials, catalogues,
price lists, correspondence, mailing lists, lists of customers, lists of suppliers, distribution
lists, photographs, production data, marketing materials and records, sales and promotional
materials and records, purchasing materials and records, product specifications, manufacturing and
quality control records and procedures, blueprints, research and development files, financial and
cost accounting records, and current sales order files, provided that personnel and payroll records
are expressly excluded from the foregoing, and the yellow modular house used by Seller for trade
shows in connection with the Business.
(f)
Goodwill
. All goodwill relating to the Purchased Assets and the Business.
(g)
Certain Rights
. All guarantees, warranties, indemnities and similar rights in
favor of Seller with respect to any Purchased Assets, other than Retained Inventory Rights.
(h)
Claims
. All rights to causes of action, lawsuits, judgments, claims and demands
of any nature available to or being pursued by Seller to the extent relating to the ownership, use,
function or value of the Purchased Assets, whether arising by way of
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counterclaim or otherwise, other than (i) the Retained Inventory Rights and (ii) any such
actions, lawsuits, judgments, claims and demands that relate to Excluded Assets or Excluded
Liabilities.
(i)
Prepayments
. All credits, prepaid royalties, prepaid expenses, deferred charges,
advance payments, security deposits, funds advanced to customers and prepaid items relating to or
arising out of the operation of the Business (the
Prepay Amount
).
SECTION 1.02
Excluded Assets
. Seller will retain and not transfer, and Purchaser will
not purchase or acquire any of the following assets, rights or properties of Seller (collectively,
the
Excluded Assets
): (a) any of Sellers assets, rights or properties that are not
expressly identified herein as Purchased Assets, including the Receivables (as hereinafter defined)
and other rights to receive payment arising out of sales occurring in the ordinary course of
conduct of the Business on or prior to the Closing Date (as hereinafter defined); and (b) without
limiting the generality of the immediately preceding clause (a), (i) any of Sellers rights to
causes of action, lawsuits, judgments, claims or demands of any nature available to Seller relating
to the Excluded Assets or the Excluded Liabilities, (ii) any guarantees, warranties, indemnities
and similar rights in favor of Seller relating to the representations made by Seller with respect
to the Inventory pursuant to Section 2.01(j) (the
Retained Inventory Rights
), and (iii)
any of Sellers assets, rights or properties listed on
Schedule 1.02
.
SECTION 1.03
Assumption of Certain Obligations and Liabilities
. On the terms and
subject to the conditions set forth herein, and in consideration of the sale, conveyance, transfer,
assignment and delivery of the Purchased Assets by Seller to Purchaser as provided in Section 1.01
hereof, at the Closing Purchaser shall assume and be responsible for (a) all open purchase orders
relating to Eligible Inventory, (b) all unpaid Allowances (as hereinafter defined) as of the
Closing Date and Allowances of the Business for shipments to customers subsequent to the Closing
Date, and (c) all obligations related to Licenses or Contracts to be performed after the Closing
(collectively, the
Assumed Liabilities
). Purchaser shall not assume or be liable for any
liabilities, obligations or commitments of Seller relating to the operation of the Business or the
ownership of the Purchased Assets prior to the Closing other than the Assumed Liabilities,
including (x) any Payables (as hereinafter defined) or (y) any chargebacks resulting from shipping
errors or for agreed allowances and discounts for shipments to customers prior to the Closing Date
(all liabilities, obligations or commitments of Seller other than Assumed Liabilities are referred
to herein as
Excluded Liabilities
).
SECTION 1.04
Purchase Price
.
(a) In consideration of the sale, transfer, conveyance, assignment and delivery of the
Purchased Assets, at the Closing Purchaser shall (i) assume the Assumed Liabilities as provided in
Section 1.03, and (ii) pay Seller, by wire transfer of immediately available funds to an account
designated by Seller in writing, an amount (the
Closing Payment
) equal to eighty percent
(80%) of the following (the
Preliminary Purchase Price
): $14,592,659,
minus
(A)
$3,078,985, which equals the amount of all trade accounts receivable invoices arising out of sales
occurring in the ordinary course of conduct of the Business (the
Receivables
) which were
unpaid as of the month ended August 4, 2007 (the
Month End
) and (B) $386,900, which
equals all advertising allowances and accruals earned by customers of the Business arising in the
ordinary course of conduct of the Business (the
Allowances
) which were unpaid as of the
Month End,
plus
$1,265,960, which equals the amount of all trade accounts payable arising
in
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the ordinary course of conduct of the Business (the
Payables
) which were unpaid as
of the Month End.
(b) At the Closing, Purchaser shall deposit an amount equal to twenty percent (20%) of the
Preliminary Purchase Price (the
Escrow Amount
) with an escrow agent reasonably acceptable
to Seller and Purchaser (the
Escrow Agent
), pursuant to an escrow agreement substantially
in the form attached hereto as
Exhibit A
(the
Escrow Agreement
), which Escrow
Amount is intended to be available to satisfy Purchasers obligations, if any, under Section 1.05
hereof.
SECTION 1.05
Adjustments to Preliminary Purchase Price
.
(a) Promptly following the Closing, representatives of Seller and Purchaser shall conduct (or
cause to be conducted) a physical count of the Eligible Inventory as of the Closing Date in
accordance with inventory procedures mutually acceptable to Seller and Purchaser. Purchaser shall
be solely responsible for its auditors fees in connection with such physical count of the Eligible
Inventory. All Eligible Inventory shall be valued as of the Closing Date at Sellers standard
costs for such items (in a manner consistent with Sellers methods for determining standard costs
prior to June 30, 2007), plus any prepayments with respect thereto for which Purchaser will be
given credit by the applicable vendor (the
Value
). In determining Sellers standard
costs, all finished goods shall be valued at cost of acquisition, plus any applicable freight, duty
and brokers fees incurred in the procurement process.
(b) As promptly as practicable, but no later than thirty (30) days after the Closing Date, (i)
Purchaser shall cause to be prepared and delivered to Seller a statement setting forth Purchasers
calculation of the Eligible Inventory and the Value thereof, and (ii) Seller shall cause to be
prepared and deliver to Purchaser a statement setting forth Sellers calculation of the Prepay
Amount and the amount of the Allowances as of the Closing Date. If either party disagrees with the
calculations of the other in any respect, such party may, within thirty (30) days after its receipt
of such calculations, deliver a notice to the other setting forth such disputes (the
Disputed
Items
). The parties shall use their reasonable best efforts to negotiate in good faith an
agreement as to all such Disputed Items. If all such disputes are not resolved within fifteen (15)
days, then the parties shall submit their unresolved disputes for final resolution to an accounting
firm to be mutually agreed upon (the
Final Resolution
).
(c) Upon the determination of the Eligible Inventory and the Value thereof, the amount of the
Prepay Amount and the amount of the unpaid Allowances as of the Closing Date, whether by the
agreement of the parties or by Final Resolution, the following adjustments shall be made to the
Preliminary Purchase Price (and the Preliminary Purchase Price, after giving effect to such
adjustments, is referred to herein as the
Final Purchase Price
):
(i) if the Value of the current and in-line Eligible Inventory (plus the Value of all current
and in-line Eligible Inventory in transit with respect to which title has already passed to
Seller), as agreed upon or as determined by Final Resolution, exceeds $4,329,912, then the
Preliminary Purchase Price shall be increased by the amount of such excess;
(ii) if the Value of the closeout Eligible Inventory (plus the Value of all closeout Eligible
Inventory in transit with respect to which title has already passed to Seller),
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as agreed upon or as determined by Final Resolution, exceeds $5,037,966, then the Preliminary
Purchase Price shall be increased by 19.35% of such excess;
(iii) if the Value of the current and in-line Eligible Inventory (plus the Value of all
current and in-line Eligible Inventory in transit with respect to which title has already passed to
Seller), as agreed upon or as determined by Final Resolution, is less than $4,329,912, then the
Preliminary Purchase Price shall be decreased by the amount of such shortfall;
(iv) if the Value of the closeout Eligible Inventory (plus the Value of all closeout Eligible
Inventory in transit with respect to which title has already passed to Seller), as agreed upon or
as determined by Final Resolution, is less than $5,037,966, then the Preliminary Purchase Price
shall be decreased by the amount of such shortfall;
(v) if the amount of the unpaid Allowances as of the Closing Date, as agreed upon or as
determined by Final Resolution, exceeds $386,900, which equals the amount of the unpaid Allowances
as of the Month End, then the Preliminary Purchase Price shall be decreased by the amount of such
excess;
(vi) if the amount of the unpaid Allowances as of the Closing Date, as agreed upon or as
determined by Final Resolution, is less than $386,900, which equals the amount of the unpaid
Allowances as of the Month End, then the Preliminary Purchase Price shall be increased by the
amount of such shortfall; and
(vii) the Preliminary Purchase Price shall be increased by the amount of the Prepay Amount, as
agreed upon or as determined by Final Resolution.
(d) On the first business day following the earlier of (A) the date on which the parties reach
agreement with respect to the Eligible Inventory and the Value thereof, the amount of the Prepay
Amount and the amount of the unpaid Allowances as of the Closing Date, and (B) the date of Final
Resolution:
(i) As provided in the Escrow Agreement, the Escrow Agent shall pay to Seller from the Escrow
Amount the amount, if any, by which the Final Purchase Price, as finally determined pursuant to
Section 1.05(c) hereof, exceeds the Closing Payment. To the extent that the Escrow Amount is
insufficient, Purchaser shall make immediate payment by wire transfer to Seller of such difference.
(ii) As provided in the Escrow Agreement, the Escrow Agent shall pay to Purchaser from the
Escrow Amount the amount, if any, by which the Final Purchase Price, as finally determined pursuant
to Section 1.05(c) hereof, is less than the Closing Payment. To the extent that the Escrow Amount
is insufficient, Seller shall make immediate payment by wire transfer to Purchaser of such
difference.
(e) Seller acknowledges that Purchaser disagrees with Sellers methods for determining
standard costs of Eligible Inventory prior to the date hereof solely with respect to the effect of
import duties on such standard costs, including the effect of any miscoding in connection
therewith. In connection with the determination of Eligible Inventory as of the
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Closing Date pursuant to Section 1.05(a), Seller shall review its methods of determining
standard costs of inventory in good faith, and review information provided by Purchaser with
respect to possible defects in such methods. If, after this review, (A) Seller and Purchaser agree
that Sellers methods of determining standard costs of inventory overstate or understate the actual
cost of such inventory solely with respect to the effect of import duties on such standard costs,
and agree on a method of correcting such overstatement or understatement or the exact amount of
such overstatement or understatement, or (B) Seller and Purchaser are not able to agree on the
amount or method of correcting any such overstatement or understatement after having made
reasonable and good faith efforts to reach agreement on this issue for a period of at least 20
business days, but a subsequent binding arbitration decision pursuant to Section 6.12 concludes
that import duties were incorrectly calculated with respect to Sellers Inventory as of June 30,
2007 or the Closing Date, then the parties hereto, notwithstanding anything to the contrary in this
Agreement, will take the following actions:
(i) if the sum of the inventory threshold amounts referenced in Sections 1.05(c)(i) and (ii)
is less than the actual amount of Sellers Inventory as of June 30, 2007 (as determined by mutual
agreement or arbitration pursuant to this Section 1.05(e)), Purchaser shall pay Seller the amount
of such difference on the same date a payment is required to be made pursuant to Section 1.05(d);
(ii) if the sum of the inventory threshold amounts referenced in Sections 1.05(c)(i) and (ii)
is greater than the actual amount of Sellers Inventory as of June 30, 2007 (as determined by
mutual agreement or arbitration pursuant to this Section 1.05(e)), Seller shall pay Purchaser the
amount of such difference on the same date a payment is required to be made pursuant to Section
1.05(d);
(iii) the inventory thresholds in Sections 1.05(c)(i), (ii), (iii) and (iv) shall be deemed
adjusted to equal the amounts agreed upon by the parties or decided by arbitration pursuant to this
Section 1.05(e); and
(iv) the Eligible Inventory as of the Closing Date shall be calculated using the Sellers
methods for determining standard costs of Inventory prior to the date hereof, as such methods may
be adjusted by this Section 1.05(e).
SECTION 1.06
Allocation of Purchase Price
. Purchaser and Seller shall cooperate with
one another in good faith to prepare an allocation of the Final Purchase Price among the Purchased
Assets promptly following the determination of the Final Purchase Price. The parties shall make
consistent use of such allocation for all income tax purposes and in all filings, declarations and
reports with the Internal Revenue Service and other governmental agencies in respect thereof,
including the reports required to be filed under Section 1060 of the Internal Revenue Code of 1986,
as amended. Neither Purchaser nor Seller will take a position on any income tax return, before any
governmental agency charged with the collection of any income tax or in any judicial proceeding
that is in any manner inconsistent with the terms of such allocation or this Section 1.06 without
the written consent of the other party.
SECTION 1.07
Taxes
. Purchaser shall pay, in a timely manner, all sales, transfer,
documentary, stamp and use taxes, if any, arising out of the transfer or conveyance of the
6
Purchased Assets. Purchaser shall have delivered to Seller prior to the Closing Date a valid
resale exemption certificate with respect to the Eligible Inventory.
SECTION 1.08
Liabilities; Proration
. Purchaser shall be responsible for all
liabilities and obligations pertaining to the operation and ownership of the Business arising after
the Closing. Seller shall be responsible for all liabilities and obligations (other than Assumed
Liabilities) pertaining to the operation of the Business arising prior to the Closing, including
all royalty minimums and shortfalls set forth on
Schedule 1.08
. Those liabilities and
obligations attributable to periods both prior to or on the Closing Date and subsequent to the
Closing Date shall be prorated accordingly and shall be charged or credited to Seller and
Purchaser, as applicable, at the Closing based on the amount reasonably estimated by Seller and
Purchaser. Upon receipt by Seller or Purchaser of invoices relating in whole or in part to
liabilities and obligations so prorated, each party shall promptly submit to the other party such
invoices, together with the supporting documentation demonstrating that the related liability, or
the applicable portion thereof, was incurred prior to or on the Closing Date. Upon the submission
of such documentation, Seller and Purchaser shall re-prorate such liabilities and shall promptly
pay any amounts owing to each other as a result thereof.
SECTION 1.09
Consent of Third Parties
. Notwithstanding anything to the contrary in
this Agreement, this Agreement shall not constitute an agreement to assign or transfer any
instrument, contract, lease, permit, approval, license or other agreement or undertaking or any
claim, right or benefit arising thereunder or resulting therefrom if an assignment or transfer or
an attempt to make such an assignment or transfer without the consent of a third party would
constitute a breach or violation thereof or affect adversely the right of Purchaser or Seller
thereunder, and any transfer or assignment to Purchaser by Seller of any interest under any such
instrument, contract, lease, permit or other agreement or undertaking that required the consent of
a third party shall be made subject to such consent or approval being obtained. In the event any
such consent or approval has not been obtained prior to the Closing, Seller shall continue to use
commercially reasonable efforts to obtain any such approval or consent as quickly as practicable
after the Closing until such time as such consent or approval has been obtained, but in no event
shall Seller be required to continue its efforts to obtain any such consent for more than three (3)
months after the Closing. Until any such consent is obtained, Seller and Purchaser will cooperate
in any reasonable and lawful arrangement designed to give to Purchaser the interest of Seller in
the benefits under any such instrument, contract, lease, permit, approval, license or other
agreement or undertaking, including performance by Seller as agent, and Purchaser shall undertake
to pay or otherwise satisfy the corresponding liabilities for the enjoyment of such benefit to the
extent Purchaser would have been responsible therefor hereunder if such consent or approval had
been obtained. Seller and Purchaser shall bear equally any fees or other costs incurred as a
result of the transfer to Purchaser of any License or Contract, other than (i) those fees or costs
incurred at or prior to Closing to transfer to Purchaser that certain License Agreement between
Disney Consumer Products, a division of Disney Enterprises, Inc. (
Disney
), and Seller
dated as of May 5, 2006 (the
Disney License
), which shall be paid by Seller at or before
the Closing;
provided
that Purchaser shall have sole liability for, and shall pay as and
when due, any increased fees under the Disney License (including any license or royalty fees) for
periods after the Closing that Disney may impose in connection with the transfer of the Disney
License, and (ii) the $25,000 transfer fee required to be paid by Purchaser to Mattel, Inc.
pursuant to that certain Letter Agreement, dated as of November 1, 2007, between Purchaser and
7
Mattel, Inc. to transfer to Purchaser that certain Fisher Price License Agreement (Contract No.
20921) with an effective date of January 1, 2007 between Mattel, Inc. and Seller, which shall be
paid solely by Purchaser. Nothing in this Section 1.09 shall be deemed to constitute an agreement
to exclude from the Purchased Assets any assets described under Section 1.01.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
SECTION 2.01
Representations and Warranties of Seller
. As a material inducement to
enter into this Agreement and all other documents to be executed in connection with this Agreement
(collectively, the
Ancillary Documents
), Seller represents and warrants to Purchaser as
follows, and acknowledges and confirms that Purchaser is relying upon such representations and
warranties in connection with the execution, delivery and performance of this Agreement,
notwithstanding any investigation made by Purchaser or on its behalf:
(a)
Organization and Standing
. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Seller is duly qualified to
do business as a foreign corporation and is in good standing under the laws of each state or other
jurisdiction in which either the ownership or use of the properties owned or used by it, or the
nature of the activities conducted by it, requires such qualification, except where the failure to
qualify would not reasonably be expected to have a Material Adverse Effect. For purposes of this
Agreement,
Material Adverse Effect
means an effect which is materially adverse to the
financial condition, results of operations, properties or liabilities of the Business;
provided
,
however
, that in determining whether a Material Adverse Effect has
occurred, there shall be excluded any effect to the extent attributable to or resulting from (i)
any change in economic conditions in the industry in which the Business operates (but only to the
extent that the effect of any such change on the Business is not materially different from the
effect on comparable businesses); (ii) any change in currency rates; (iii) any change in any Law
(as hereinafter defined) generally affecting the industry in which the Business operates; (iv) any
increases in the costs of commodities or supplies; (v) any change in the financial condition or
results of operation of the Business caused by the pending sale of the Business to Purchaser; (vi)
any act of war or terrorism; or (vii) any actions expressly required to be taken pursuant to or in
accordance with this Agreement. Seller has all requisite corporate power and authority to execute,
deliver and perform this Agreement and the Ancillary Documents, to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby and thereby.
Seller has all necessary corporate power and authority to own, lease and operate its properties and
conduct the Business as it is currently being conducted.
(b)
Authorization and Binding Effect
. The execution, delivery and performance of this
Agreement and the Ancillary Documents by Seller have been duly authorized by the Board of Directors
of Seller, and this Agreement and the Ancillary Documents constitute the legal, valid and binding
obligation of Seller enforceable in accordance with their respective terms, except as may be
limited by bankruptcy, reorganization, insolvency and other similar Laws or equitable principles
relating to or affecting the enforcement of rights of creditors generally. All other corporate
proceedings required by the certificate of incorporation or bylaws of Seller or otherwise for the
execution and delivery of this Agreement and the Ancillary Documents, and for the consummation of
the transactions contemplated hereby and thereby, have been duly taken.
8
(c)
No Violation
. The execution, delivery and performance by Seller of this Agreement
do not and will not (i) contravene or breach or constitute a default under any term or provision of
the certificate of incorporation or bylaws of Seller, (ii) constitute a violation of any statute,
ordinance, judgment, order, decree, regulation or rule of any court, governmental authority or
arbitrator or, except as set forth on
Schedule 2.01(c)
, any license, permit or franchise
applicable or relating to the Business or the Purchased Assets, or (iii) result in the creation of
any Lien upon any of the Purchased Assets pursuant to the provisions of any of the foregoing.
Except as set forth on
Schedule 2.01(c)
, no governmental approval or governmental consent
is required to be obtained by Seller in connection with the execution and delivery of this
Agreement and the transactions contemplated hereby.
(d)
Financial Statements
. Attached hereto as
Schedule 2.01(d)
are Statements
of Assets Acquired and Liabilities Assumed as of January 1, 2005 (fiscal 2004), December 30, 2005,
December 30, 2006 and September 29, 2007, and Statements of Revenues and Direct Expenses for the
fiscal years (or portion thereof) ending on such dates (the
Financial Statements
). The
Financial Statements have been prepared from the books and records of Seller and present fairly in
all material respects the information contained therein for the periods covered thereby.
(e)
Insurance
.
As of the date hereof and immediately prior to the Closing, the
Business and the Purchased Assets are, and will be, insured against such hazards and liabilities,
under such coverages and in such amounts, as are customarily maintained by prudent companies
similarly situated and under policies issued by insurers of recognized responsibility. Such
policies are in full force and effect, all premiums due thereon have been paid, and Seller has
complied in all material respects with the terms and provisions thereof. Except for workers
compensation and medical insurance claims arising in the ordinary course of business, there are no
claims pending or, to the Knowledge of Seller, threatened under any of said policies in respect of
the Business, and no disputes with underwriters are pending or, to the Knowledge of Seller,
threatened. Seller has not been refused any insurance with respect to the Business by any
insurance carrier to which it has applied for insurance or with which it has carried insurance.
For purposes of this Agreement,
Knowledge
means the actual knowledge of Ashley Edwards,
John De La Roche, Thomas P. OConnor, C. Powers Dorsett, Delbridge E. Narron, Steven P. Burns and
Craig Jones, without independent investigation.
(f)
Litigation and Compliance
.
(i) There is no action, suit, claim or proceeding pending or, to the Knowledge of
Seller, threatened with respect to the Business or the Purchased Assets or with respect to
the transactions contemplated by this Agreement.
(ii) Except with respect to compliance with Laws applicable to the items of Eligible
Inventory that are not for active and ongoing programs of the Business, which is covered
exclusively by Section 2.01(j) and not by this Section 2.01(f)(ii), Seller is in compliance
with, and is not in default or violation under, and, to the Knowledge of Seller, no valid
basis exists for any claim of noncompliance, default or violation with respect to, any Law
with respect to the Business, except for such failures to be in compliance, defaults or
violations that, individually or in the aggregate, would not be reasonably expected to
result in a Material Adverse Effect. For purposes of this
9
Agreement,
Law
shall mean shall mean any federal, state or local law (including
common law), rule, regulation or governmental requirement of any kind, and the rules,
regulations, guidelines, directives and orders promulgated thereunder. Seller is not
subject to any judgment, order or decree entered in any lawsuit or proceeding that has or
may have a Material Adverse Effect upon the Business. All material governmental licenses,
consents, authorizations and permits required in connection with the Business have been
obtained and are in full force and effect.
(g)
Taxes and Other Payments
. Seller has paid, or made adequate provision on
applicable books and records for the payment of, all federal, state, local and foreign taxes,
including sales, use, real property and personal property taxes, penalties and other payments
required, as the case may be, to be paid or currently due in respect of the Business; the payment
of any such tax is not in default; and Seller has duly filed all tax reports and returns required
to be filed by it in respect of the Business. There are no tax liens (other than liens for taxes
not yet delinquent) upon, pending against or, to the Knowledge of Seller, threatened against Seller
in respect of, the Purchased Assets. Seller has made and transmitted to the appropriate taxing
authorities all required employee withholding payments in respect of the Business.
(h)
Consents and Approvals
. Except as specified in
Schedule 2.01(h)
, the
execution, delivery and performance of this Agreement and the Ancillary Documents by Seller, and
the consummation by Seller of the transactions contemplated hereby and thereby, will not require
any notice to, action of, filing with, or consent, authorization, order or approval from, any
Person. For purposes of this Agreement,
Person
shall mean an individual, partnership,
corporation, business trust, limited liability company, limited liability partnership, joint stock
company, trust, unincorporated association, joint venture or other entity or a court,
administrative agency or other federal, state, local, municipal, foreign or other governmental or
quasi-governmental authority or agency of any nature.
(i)
Absence of Changes or Events
. Since June 30, 2007, Seller has operated and
conducted the Business only in the ordinary course, and, except as set forth on
Schedule
2.01(i)
, Seller has not:
(i) waived or released any right of substantial value relating to the Business,
including any contractual rights;
(ii) received any notice of termination of any Assumed Contract (as hereinafter
defined), or suffered any damage, destruction or loss (whether or not covered by insurance)
or other change in the business, operations, financial condition, liabilities, assets or
earnings of the Business, which, in any case or in the aggregate, has had or may have a
Material Adverse Effect on the Purchased Assets or the Business nor, to the Knowledge of
Seller, has there been any event which has had or may reasonably be expected to have a
Material Adverse Effect on the Purchased Assets or the Business;
(iii) received notification of a material violation of any Law applicable to the
Business or the Purchased Assets;
(iv) instituted, settled, or agreed to settle any litigation, legal action, proceeding
or arbitration directly affecting the Purchased Assets or the Business;
10
(v) permitted, allowed or suffered any of the Purchased Assets to be subjected to any
mortgage, pledge, lien, encumbrance, restriction or charge of any kind, other than Permitted
Liens or any other Lien that will be released on or prior to Closing; or
(vi) entered into, or agreed to enter into, any agreement or arrangement granting any
right to purchase or acquire any other right with respect to any of the Purchased Assets or
requiring the consent of any party to the transfer or assignment of the Purchased Assets.
(j)
Inventory
. All Eligible Inventory, as of the Closing, will be valued at Sellers
standard costs for such items (in a manner consistent with Sellers methods for determining
standard costs prior to June 30, 2007)
.
Except as set forth on
Schedule 2.01(j)
, Seller is
not in possession of any Inventory not owned by Seller, including goods already sold. Eligible
Inventory now on hand that was purchased after the Month End was purchased in the ordinary course
of business of Seller. All items included in the Eligible Inventory consist of a quality and
quantity which are usable and saleable in the ordinary course of business of Seller except for
closeout items and items of below-standard quality in excess of the Variance
.
All items of
Eligible Inventory for active and ongoing programs of the Business that were purchased by Seller
for a specific Significant Customer (as hereinafter defined) meet or exceed all standards specified
by such Significant Customer. All items of Eligible Inventory that are not for active and ongoing
programs of the Business met or exceeded all applicable standards specified by the United States
Consumer Products Safety Commission with respect to material content and safety matters at the time
they were purchased by Seller.
(k)
Contracts
.
Schedule 2.01(k)
lists all contracts, agreements and other
arrangements, including all amendments thereto, which relate directly to or represent the Assumed
Liabilities (other than contractual obligations to pay the Allowances, the terms of which are set
forth on
Schedule 2.01(q)
hereto) (collectively, the
Assumed Contracts
), all of
which are valid and binding obligations of the respective parties thereto, enforceable in
accordance with their respective terms, are in full force and effect and, except as set forth on
Schedule 2.01(k)
, are validly assignable to Purchaser without the consent of any other
Person. Seller has no understandings or arrangements, whether oral or written and whether or not
legally enforceable, with parties (other than customers and suppliers) that are material to the
Purchasers ownership and use of the Purchased Assets after the Closing that have not previously
been disclosed to Purchaser in writing.
(l)
Licenses and Permits
. Seller lawfully obtained and currently possesses the
governmental licenses and permits necessary to own and operate the Business and has fulfilled and
performed all of its material obligations thereunder, other than those that, if not obtained or
currently possessed, could not reasonably be expected to have a Material Adverse Effect on the
Business, and Seller has delivered to Purchaser true and complete copies of all such governmental
licenses and permits, which are listed on
Schedule 2.01(l)
(the
Scheduled Licenses and
Permits
). Each of the Scheduled Licenses and Permits is valid and in full force and effect.
(m)
Intellectual Property
. Set forth on
Schedule 2.01(m)
are all patents and
patent applications, registered copyrights and copyright applications, registered trademarks and
11
trademark applications (including the Specified Applications), service marks, logos, trade names,
slogans and brands included within the Intellectual Property being transferred to Purchaser
hereunder (the
Specified Intellectual Property
). Except as set forth on
Schedule
2.01(m)
:
(i) Seller owns, free and clear of all Liens, or has the right to use, all of the
Specified Intellectual Property without payment to any third party;
(ii) to Sellers Knowledge, Seller owns, free and clear of all Liens, or has the right
to use, all of the Intellectual Property (other than the Specified Intellectual Property)
without payment to any third party;
(iii) all of the issued patents, registered trademarks and registered copyrights
included within the Intellectual Property are currently in compliance in all material
respects with applicable Laws (including, as applicable, payment of filing, examination and
maintenance fees and the timely filing of affidavits of use and incontestability and renewal
applications), are valid and enforceable and are not subject to any maintenance fees or
taxes or actions falling due within ninety (90) days after the Closing Date;
(iv) upon the consummation of the transactions contemplated hereby and compliance with
applicable Laws as to the assignment of such Specified Intellectual Property, Purchaser will
have the right to own and use the Specified Intellectual Property;
(v) Seller has not received written notice of any claim and no claims are pending nor,
to the Knowledge of Seller, threatened by any Person, as to the use of any such Specified
Intellectual Property or challenging or questioning the validity or effectiveness of any
state or federal registration of the Specified Intellectual Property;
(vi) Sellers use of the Specified Intellectual Property does not, and Purchasers
continued use of the Specified Intellectual Property following the Closing in the same
manner as heretofore used by Seller will not, infringe on the rights of any Person; and
(vii) to the Knowledge of Seller, there has not been any theft, infringement,
misappropriation or other violation of the Intellectual Property by any Person.
Seller has taken commercially reasonable steps to protect its rights in any of Sellers data
or information (including trade secrets) that is valuable to the creation of the Business and not
generally known to the public or competitors.
(n)
Product Warranties
. Except for warranties under applicable law or as otherwise set
forth on
Schedule 2.01(n)
, (i) Seller has made no warranties, express or implied, written
or oral, with respect to the products designed, manufactured, marketed, imported, sold or
distributed in connection with the Purchased Assets, and (ii) there is no claim pending or, to the
Knowledge of Seller, threatened against it under any warranty.
12
(o)
Customers
.
Schedule 2.01(o)
sets forth (i) the names and addresses of all
customers of the Business that ordered products, goods and services from Seller with respect to the
Business with an aggregate value for each such customer of $50,000 or more during the twelve-month
period ended September 1, 2007 (collectively, the
Significant Customers
) and (ii) the
amount for which each such customer was invoiced during such period. Except as set forth on
Schedule 2.01(o)
, Seller has not received any notice, nor does Seller have Knowledge, that
any Significant Customer (i) has ceased, or will cease, to purchase those types of products
included in current and active programs for such Significant Customer, (ii) will substantially
reduce the purchase of those types of products included in current and active programs for such
Significant Customer, or (iii) has sought, or is seeking, to substantially reduce the price it will
pay for those types of products included in current and active programs for such Significant
Customer other than in a manner consistent with such Significant Customers ordinary business
efforts to obtain products at lower prices, including in each case after the consummation of the
transactions contemplated hereby. To the Knowledge of Seller and other than as indicated above, no
Significant Customer of the Business has threatened to take any action described in the immediately
preceding sentence as a result of the consummation of the transactions contemplated hereby.
(p)
Suppliers; Raw Materials
.
Schedule 2.01(p)
sets forth (i) the names and
addresses of all suppliers to the Business from which Seller ordered raw materials, supplies,
merchandise and other goods and services for use in the Business with an aggregate purchase price
for each such supplier of $25,000 or more during the twelve-month period ended October 5, 2007, and
(ii) the amount for which such supplier invoiced Seller during such period. Except as set forth on
Schedule 2.01(p)
, Seller has not received any notice, nor does Seller have Knowledge, that
there has been any material adverse change in the price of such raw materials, supplies,
merchandise or other goods or that any such supplier will not sell raw materials, supplies,
merchandise and other goods to Purchaser at any time after the Closing Date on terms and conditions
substantially similar to those used in its current sales to Seller, subject to general and
customary price increases, including those related to currency fluctuations. To the Knowledge of
Seller, no supplier of the Business has otherwise threatened to take any action described in the
immediately preceding sentence as a result of the consummation of the transactions contemplated
hereby.
(q)
Rebates
. Except as set forth on
Schedule 2.01(q)
, Seller has not entered
into, or offered to enter into, any agreement, contract, commitment, mark-down, buy-in, co-op or
other arrangement (whether written or oral) pursuant to which Seller is or will be obligated to
make any rebates, discounts, promotional allowances or similar payments or arrangements to any
customer of the Business.
(r)
Brokers
. Seller has not employed any investment banker, broker or finder in
connection with the transactions contemplated hereby.
(s)
Title to Purchased Assets
. Seller owns good title to all of the Purchased Assets
(other than Intellectual Property, which is covered exclusively by Section 2.01(m) and not by this
Section 2.01(s)) free and clear of any Liens other than Permitted Liens.
(t)
No Other Representations or Warranties
. EXCEPT AS EXPRESSLY SET FORTH IN THIS
SECTION 2.01 OR IN ANY ANCILLARY DOCUMENT, SELLER
13
DOES NOT MAKE, AND NO PARTY SHALL BE ENTITLED TO RELY UPON, ANY REPRESENTATION OR WARRANTY AS TO
ANY FACT OR MATTER ABOUT SELLER, THE BUSINESS OR THE PURCHASED ASSETS, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE.
SECTION 2.02
Representations and Warranties of Purchaser
. Purchaser, for itself and
its successors and assigns, represents and warrants to Seller as follows, and acknowledges and
confirms that Seller is relying upon such representations and warranties in connection with the
execution, delivery and performance of this Agreement, notwithstanding any investigation made by or
on behalf of Seller:
(a)
Due Organization
. Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. Purchaser has all requisite corporate power
and authority to execute, deliver and perform this Agreement and the Ancillary Documents, to
perform its obligations hereunder and thereunder and to consummate the transactions contemplated
hereby and thereby.
(b)
Authorization and Binding Effect
. The execution, delivery and performance of this
Agreement and the Ancillary Documents by Purchaser have been duly authorized by the Board of
Directors of Purchaser, and this Agreement and the Ancillary Documents constitute the legal, valid
and binding obligation of Purchaser enforceable in accordance with their respective terms, except
as may be limited by bankruptcy, reorganization, insolvency and other similar Laws or equitable
principles relating to or affecting the enforcement of rights of creditors generally. All other
corporate proceedings required by the certificate of incorporation or bylaws of Purchaser or
otherwise for the execution and delivery of this Agreement and the Ancillary Documents, and for the
consummation of the transactions contemplated hereby and thereby, have been duly taken.
(c)
No Violation
. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby constitutes or will constitute a violation of,
is or will be in conflict with, or constitutes or will constitute a default under (i) any term or
provision of the certificate of incorporation or bylaws of Purchaser; (ii) any statute, ordinance,
judgment, order, decree, regulation or rule of any court, governmental authority or arbitrator; or
(iii) any contract, license, permit or franchise applicable or relating to Purchaser. No
governmental approval or other consent is required to be obtained by Purchaser in connection with
the execution and delivery of this Agreement and the transactions contemplated hereby.
(d)
Brokers
. Purchaser has not employed any investment banker, broker or finder in
connection with the transactions contemplated hereby.
(e)
Financing
. Purchaser has previously delivered to Seller a true, correct and
complete copy of the Commitment Letter, dated September 18, 2007, made by The CIT Group/Commercial
Services, Inc. (
Lender
) in favor of Purchaser (the
Commitment Letter
). The
Commitment Letter is a legal, valid and binding obligation of Lender, enforceable in accordance
with its terms, and is in full force and effect. Purchaser is in full compliance with all of the
material terms of the Commitment Letter. To the knowledge of Purchaser, no event,
occurrence or condition exists that would permit Lender to refuse to advance the funds
contemplated by the Commitment Letter in accordance with its terms.
14
ARTICLE III. ADDITIONAL COVENANTS AND AGREEMENTS
SECTION 3.01
All Reasonable Efforts
.
Each of the parties hereto agrees to use
commercially reasonable efforts to take, or cause to be taken, all action, and to do, or cause to
be done, all things necessary, proper and advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement. If at any time
after the Closing any further action is necessary or desirable to carry out the purposes of this
Agreement, including the execution of additional instruments, the parties to this Agreement shall
take all such necessary action.
SECTION 3.02
Audited Financial Statements
. Seller acknowledges that Crown Crafts,
Inc., a Delaware corporation (
Parent
) and the holder of 100% of the outstanding capital
stock of Purchaser, at the sole cost and expense of Purchaser and Parent, will cause to be prepared
and will file with the Securities and Exchange Commission (the
SEC
) such financial
statements as are required under that certain letter from the SEC dated October 10, 2007 with
respect to Purchasers acquisition of the Purchased Assets pursuant hereto (the
Required
Financial Statements
). Seller shall (i) cooperate with Purchaser and the auditor selected by
Purchaser to audit any such Required Financial Statements to give Purchaser and such auditor
reasonable access to Sellers financial records, files, personnel and advisors as may be reasonably
necessary to permit Purchasers preparation of such Required Financial Statements and to permit
such auditor to perform its audit and issue its audit report in respect thereof; and (ii) use its
commercially reasonable efforts to cause its personnel and advisors to cooperate with Purchaser and
such auditor regarding the matters addressed in this Section 3.02, including delivery of customary
representation letters to such auditor.
ARTICLE IV.
CLOSING
SECTION 4.01
The Closing
. The purchase and sale (the
Closing
) of the
Purchased Assets provided for in this Agreement shall take place simultaneously with the execution
and delivery hereof and shall be effected by the execution and delivery of documents by such
combination of facsimile, electronic mail and original documents as the parties may mutually
determine. The date on which the Closing occurs shall be referred to herein as the
Closing
Date
.
SECTION 4.02
Deliveries by Seller
. At Closing, Seller shall deliver to Purchaser the
following:
(a) a bill of sale for all of the Purchased Assets that are tangible personal property
substantially in the form of
Exhibit B
executed by Seller (the
Bill of Sale
);
(b) an assignment of all of the Purchased Assets that are intangible personal property, which
assignment shall also contain Purchasers undertaking and assumption of the Assumed Liabilities,
substantially in the form of
Exhibit C
executed by Seller (the
Assignment and
Assumption Agreement
);
(c) separate assignments of the Specified Applications and such other items of the
Intellectual Property as Purchaser may reasonably require, each executed by Seller;
15
(d) a noncompetition agreement substantially in the form of
Exhibit D
executed by Seller
(the
Noncompetition Agreement
);
(e) a transition services agreement substantially in the form of
Exhibit E
executed by
Seller (the
Transition Services Agreement
);
(f) a warehousing agreement substantially in the form of
Exhibit F
executed by Seller
(the
Warehousing Agreement
);
(g) a license agreement with respect to Sellers Springmaid, Wamsutta and Dundee trade marks
and the Owen tradename substantially in the form of
Exhibit G
executed by Seller (the
Seller License Agreement
);
(h) an agreement pursuant to which Purchaser shall obtain the right to use the Blue Jean
Teddy name and mark formerly held by Seller royalty-free with respect to Eligible Inventory;
(i) the Escrow Agreement executed by Seller;
(j) the consents and approvals set forth on
Schedule 2.01(h)
(including the consent of
Disney to the transfer to Purchaser of the Disney License and the consent of any other licensor or
other Person necessary for Purchaser to sell the Eligible Inventory to be transferred to Purchaser
hereunder); and
(k) a warehousers/bailees agreement that is acceptable to Purchasers lender in both form
and substance executed by Seller.
The documents to be delivered hereunder by or on behalf of Seller on the Closing Date shall be
in form and substance reasonably satisfactory to Purchaser and its counsel.
SECTION 4.03
Deliveries by Purchaser
. At Closing, Purchaser shall deliver the
following:
(a) to Seller, the Closing Payment by wire transfer of immediately available funds to such
account at such bank as Seller shall direct;
(b) to the Escrow Agent, the Escrow Amount by wire transfer of immediately available funds to
such account at such bank as the Escrow Agent shall direct; and
(c) to Seller, (i) the Assignment and Assumption Agreement, (ii) the Noncompetition Agreement,
(iii) the Transition Services Agreement, (iv) the Warehousing Agreement, (v) the Seller License
Agreement and (vi) the Escrow Agreement, each executed by Purchaser.
The documents to be delivered hereunder by or on behalf of Purchaser on the Closing Date shall
be in form and substance reasonably satisfactory to Seller and its counsel.
16
SECTION 4.04
Passage of Title at Closing
.
Upon delivery of the instruments of sale,
conveyance, assignment, transfer and delivery, title to the Purchased Assets shall pass to
Purchaser at the Closing.
SECTION 4.05
Retention of and Access to Records
. After the Closing Date, Purchaser
will retain those records of the Business and other materials delivered to Purchaser pursuant to
Section 1.01(e) and will not destroy such records and materials without the written consent of the
Seller prior to the fifth anniversary of the Closing Date. Purchaser also will provide Seller and
its representatives reasonable access thereto, during normal business hours and on reasonable prior
written notice, to enable Seller to prepare financial statements or defend claims or other
proceedings or investigations relating to Excluded Liabilities, Excluded Assets, Retained Inventory
Rights or any claims for indemnification made under Article V.
ARTICLE V.
INDEMNIFICATION
SECTION 5.01
Agreement of Seller to Indemnify Purchaser
. Subject to the terms and
conditions of this Article V, Seller agrees to indemnify, defend and hold harmless Purchaser and
its officers, directors, shareholders, other affiliates, employees and agents (collectively, the
Purchaser Indemnitees
) from, against, for and in respect of any and all demands, claims,
actions or causes of action, assessments, losses, damages, liabilities, costs, expenses (including
reasonable costs of investigation and defense and reasonable attorneys fees and expenses) and
diminution of value (collectively,
Losses
) asserted against, imposed upon or incurred by
Purchaser Indemnitees by reason of, resulting from, based upon or arising out of:
(a) the breach of any representation or warranty of Seller contained in or made pursuant to
this Agreement or any Ancillary Document;
(b) the breach of any covenant or agreement of Seller contained in or made pursuant to this
Agreement or any Ancillary Document other than the Noncompetition Agreement, the Transition
Services Agreement, the Warehousing Agreement, the Seller License Agreement and the Escrow
Agreement (such remaining Ancillary Documents, collectively, the
Standalone Ancillary
Documents
);
(c) any Excluded Liability;
(d) Sellers failure to comply with the terms of any state bulk sales or fraudulent transfer
laws applicable to the transactions contemplated hereby; and
(e) any trademark infringement claim arising out of any sale of Eligible Inventory purchased
by Purchaser hereunder or any inventory purchased under a purchase order constituting an Assumed
Liability, in each case as a direct result of the fact that (i) such Eligible Inventory is
currently labeled with the Welcome to the World trademark listed on Schedule 2.01(m) hereto or
(ii) such inventory is labeled with the Welcome to the World trademark at the time Purchaser
takes title to such inventory.
Notwithstanding anything to the contrary herein, the term Losses specifically excludes damage to
reputation, lost business opportunities, lost profits, mental or emotional distress, incidental,
special, exemplary, punitive or indirect damages or interference with business operations.
17
SECTION 5.02
Agreement of Purchaser to Indemnify Seller.
Subject to the terms and
conditions of this Article V, Purchaser agrees to indemnify, defend and hold harmless Seller and
its officers, directors, shareholders, other affiliates, employees and agents (collectively, the
Seller Indemnitees
) from, against, for and in respect of any and all Losses asserted
against, imposed upon or incurred by Seller Indemnitees by reason of, resulting from, based upon or
arising out of:
(a) the breach of any representation or warranty of Purchaser contained in or made pursuant to
this Agreement or any Ancillary Document;
(b) the breach of any covenant or agreement of Purchaser contained in or made pursuant to this
Agreement or any Ancillary Document, other than any Standalone Ancillary Document; and
(c) any Assumed Liability.
SECTION 5.03
Procedures for Indemnification
.
(a) As used herein, the term
Indemnitor
means the party against whom indemnification
hereunder is sought, and the term
Indemnitee
means the party seeking indemnification
hereunder.
(b) Promptly after receipt by the Indemnitee of notice of commencement of any suit or
proceeding (including a binding arbitration or an audit by any taxing authority) or notice of any
claim or demand from a third party against the Indemnitee that may give rise to an indemnification
obligation under this Article V (a
Third Party Claim
), the Indemnitee will give notice to
the Indemnitor in writing of such Third Party Claim, together with the estimated amount thereof (if
known). Failure to give notice of a Third Party Claim shall not affect the indemnification
obligations hereunder except to the extent that actual and material prejudice to the defense of
such claim is established by the Indemnitor.
(c) The Indemnitor shall have the right to assume the defense (at the Indemnitors expense) of
any such claim through counsel of the Indemnitors own choosing by so notifying the Indemnitee in
writing within thirty (30) days of the first receipt by the Indemnitor of such notice from the
Indemnitee;
provided
,
however
, that any such counsel shall be reasonably
satisfactory to the Indemnitee. The Indemnitee shall have the right to employ separate counsel in
such claim and participate in the defense thereof, but the fees and expenses of such counsel (other
than expenses reasonably incurred prior to the Indemnitors assumption of the defense) shall be at
the expense of the Indemnitee unless: (i) the Indemnitor has agreed to pay such expenses; (ii) the
Indemnitor has failed to assume the defense within thirty (30) days of receipt of notice thereof
and employ counsel reasonably satisfactory to the Indemnitee; or (iii) the named parties in any
such claim (including any impleaded parties) include the Indemnitee and the Indemnitor, and the
Indemnitee shall have been advised by counsel that either (x) there is reasonably likely to be one
or more legal defenses available to it which are different from or in addition to those available
to the Indemnitor or (y) a conflict of interest is reasonably likely to exist if such counsel
represents the Indemnitee and the Indemnitor;
provided
,
however
, that (1) if the
Indemnitee notifies the Indemnitor in writing that it elects to employ separate counsel in the
circumstances described in clause (i), (ii) or (iii) above, then the Indemnitor shall not have the
18
right to assume the defense thereof and such counsel shall be at the reasonable expense of the
Indemnitor, and Indemnitor may elect to participate in such defense at any time at its own expense,
and (2) the Indemnitor shall not, in connection with any one such claim or separate but
substantially similar or related claims in the same jurisdiction arising out of the same general
allegations or circumstances, be responsible hereunder for the fees and expenses of more than one
such firm of separate counsel (in addition to any local counsel), which counsel shall be designated
by the Indemnitee.
(d) Notwithstanding the foregoing, if the Indemnitee determines in good faith that there is a
reasonable probability that a Third Party Claim may materially and adversely affect it other than
as a result of monetary damages for which it would be entitled to indemnification under this
Agreement, the Indemnitee may, by notice to the Indemnitor, assume the exclusive right (subject to
Indemnitors right to employ separate counsel with respect to such matter at its own expense) to
defend, compromise or settle such Third Party Claim, but the Indemnitor will not be bound by any
determination of any Third Party Claim so defended for the purposes of this Agreement or any
compromise or settlement effected without its prior written consent (which may not be unreasonably
withheld or delayed).
(e) A claim for indemnification for any matter not involving a Third Party Claim may be
asserted by notice to the party from whom indemnification is sought and shall be paid promptly
after such notice, subject to the other provisions of this Article V.
SECTION 5.04
Establishment of Indemnification Liability
. To be effective, any claim
for indemnification by the Indemnitee must be made by a written notice (a
Notice of
Claim
) to the Indemnitor, given in accordance with the provisions of Section 6.03 hereof.
Upon final determination of the amount of the Losses that is the subject of an indemnification
claim (whether such determination is the result of the Indemnitors acceptance of a Notice of Claim
or a resolution of any dispute with respect thereto by agreement of the parties or otherwise), the
Indemnitor shall be obligated to pay the amount of such Losses to the Indemnitee within ten (10)
days of such final determination of the amount of the Losses due by the Indemnitor.
SECTION 5.05
Settlement of Third Party Claims
. No settlement of a Third Party Claim
involving the asserted liability of the Indemnitee under this Article V shall be made without the
prior written consent by or on behalf of the Indemnitee, which consent shall not be unreasonably
withheld or delayed, unless (i) there is no finding or admission of any violation of law or any
violation of the rights of any Person by the Indemnitee and no material adverse effect on any other
claims then pending against the Indemnitee and (ii) the sole relief provided is monetary damages
that are paid in full by the Indemnitor. Consent shall be presumed in the case of settlements of
$10,000 or less where the Indemnitee has not responded within ten (10) days of written notice of a
proposed settlement.
SECTION 5.06
Duration
. The indemnification rights of the parties hereto for Losses
resulting from a breach of representations and warranties contained in this Agreement or any
Ancillary Documents or for breaches of covenants contained in this Agreement or any Ancillary
Document other than any Standalone Ancillary Document (other than as hereinafter set forth in this
Section 5.06) are subject to the condition that the Indemnitor shall have received written notice
of the Losses for which indemnity is sought within eighteen (18) months after the Closing Date.
The indemnification rights of the parties hereto for Losses resulting from a breach
19
of representations and warranties or for breaches of covenants that are related to tax matters are
subject to the condition that the Indemnitor shall have received written notice of the Losses for
which indemnity is sought prior to the expiration of the applicable statute of limitations
therefor. The indemnification rights of the parties hereto for Losses resulting from a breach of
any representation and warranty with respect to title to any of the Purchased Assets, or with
respect to the breach of any agreement or undertaking with respect to payment of the Excluded
Liabilities and Assumed Liabilities, shall be effective for all purposes hereunder without
limitation as to the time within which such notice may be given.
SECTION 5.07
Limitations
. The Indemnitor shall not be obligated to indemnify the
Indemnitee until the sum of the aggregate of all Losses suffered or incurred by the Indemnitee as
to which a right of indemnification is provided under this Article V exceeds One Hundred Thousand
and No/100 Dollars ($100,000.00) (the
Threshold
), at which time the Indemnitee shall be
entitled to indemnification for the amount of all Losses, including the amount of the Threshold;
provided
,
however
, that, notwithstanding the foregoing, any Losses suffered or
incurred by the Indemnitee under Section 5.01(c), (d) or (e) or Section 5.02(c) hereof shall not be
subject to the Threshold. In no event shall the aggregate liability of Seller, or the aggregate
liability of Purchaser, under this Article V exceed Two Million Five Hundred Thousand and No/100
Dollars ($2,500,000.00) exclusive of any Losses suffered or incurred by the Indemnitee under
Section 5.01(e) hereof. Notwithstanding anything herein to the contrary, (a) all references to
material and Material Adverse Effect (except those references included in Sections 2.01(d),
2.01(i)(ii), 2.01(k) and 2.01(p)) shall be disregarded for purposes of determining whether and the
extent to which there are, and in calculating the amount of, Losses entitled to indemnification
under this Article V, and (b) if any Losses arising from any breach by Seller of any representation
or warranty are included in the calculation of the Final Purchase Price pursuant to Section 1.05,
Purchaser shall not be entitled to any indemnification hereunder for such Losses. All Losses
recoverable by an Indemnitee shall be net of any insurance proceeds which the Indemnitee actually
receives as a direct consequence of the circumstances to which the Losses related or from which the
Losses resulted or arose, which amount shall be offset by any increases (current and future) in
insurance premiums that result from the insurer having covered such Losses and any costs incurred
by the Indemnitee in connection therewith.
SECTION 5.08
Investigations
. The respective representations and warranties of the
parties contained in this Agreement or in any Ancillary Document delivered by either party at or
prior to the Closing and the rights to indemnification set forth in this Article V shall not be
deemed waived or otherwise affected by any investigation made, or knowledge acquired (or capable of
being acquired), by either party hereto.
SECTION 5.09
Sole and Exclusive Remedy
. Except as set forth in Section 1.05 and
Section 6.11, the indemnification obligations of Seller and Purchaser under this Article V shall
constitute the sole and exclusive remedies of Seller and Purchaser, respectively, with respect to
(i) any and all claims arising under or relating to this Agreement, and (ii) any and all claims
relating to a breach of any representation or warranty arising under or relating to any Ancillary
Agreement or other agreement, instrument or document executed and delivered pursuant to this
Agreement or the transactions contemplated by this Agreement, the Ancillary Agreements or any of
such other agreements, instruments or documents.
20
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01
Expenses
. Except as provided in Section 1.08, Seller, on the one hand,
and Purchaser, on the other hand, shall bear their respective expenses, costs and fees (including
attorneys fees) in connection with the transactions contemplated hereby, including the
preparation, execution and delivery of this Agreement and compliance herewith.
SECTION 6.02
Interpretation
.
(a) When a reference is made in this Agreement to a section or article, such reference shall
be to a section or article of this Agreement unless otherwise clearly indicated to the contrary.
(b) The descriptive headings of this Agreement are for convenience only and shall not control
or affect the meaning or construction of any provision of this Agreement.
(c) Whenever the words include, includes or including are used in this Agreement, they
shall be deemed to be followed by the words without limitation.
(d) The words hereof, herein and herewith and words of similar import shall, unless
otherwise stated, be construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement, and article, section, paragraph, exhibit and schedule references are
to the articles, sections, paragraphs, exhibits and schedules of this Agreement unless otherwise
specified.
(e) The meaning assigned to each term defined herein shall be equally applicable to both the
singular and the plural forms of such term, and words denoting any gender shall include all
genders. Where a word or phrase is defined herein, each of its other grammatical forms shall have
a corresponding meaning.
(f) A reference to any party to this Agreement or any other agreement or document shall
include such partys successors and permitted assigns.
(g) A reference to any statute or to any provision of any statute shall include any amendment
to, and any modification or re-enactment thereof, and all regulations and statutory instruments
issued thereunder or pursuant thereto.
(h) The parties have participated jointly in the negotiation and drafting of this Agreement.
In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
(i) All Exhibits hereto are hereby incorporated into this Agreement and are hereby made a part
hereof as if set out in full herein.
SECTION 6.03
Notices
. All notices and other communications hereunder shall be in
writing and shall be deemed given if (a) delivered by hand, (b) mailed by registered or certified
mail (return receipt requested), (c) by deposit with a nationally recognized courier for
21
next business day delivery, or (d) faxed and immediately confirmed both orally and in writing, to
the parties at the following addresses (or at such other addresses for a party as shall be
specified by like notice) and shall be deemed given on the date on which so hand-delivered or so
telecommunicated or the next business day following deposit with such courier or on the third
business day following the date on which so mailed, if deposited in a regularly-maintained
receptacle for United States mail:
If to Seller:
Springs Global US, Inc.
205 North White Street
Fort Mill, South Carolina 29715
Attn: Mr. Tom OConnor
Fax: (803) 547-1688
With a copy to (which shall not constitute notice to Seller):
Springs Global US, Inc.
205 North White Street
Fort Mill, South Carolina 29715
Attn: Legal Department
Fax: (803) 547-3766
If to Purchaser:
Crown Crafts Infant Products, Inc.
916 S. Burnside Avenue
Gonzales, Louisiana 70737
Attn: Mr. E. Randall Chestnut
Fax: (225) 647-9112
With a copy to (which shall not constitute notice to Purchaser):
Rogers & Hardin LLP
2700 International Tower
229 Peachtree Street, NE
Atlanta, Georgia 30303
Attn: Steven E. Fox, Esq.
Fax: (404) 525-2224
SECTION 6.04
Counterparts
. This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement. Executed by counterparts may be
delivered by facsimile transmission or by other electronic communication.
SECTION 6.05
Governing Law
. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to principles of conflicts of
laws.
22
SECTION 6.06
Assignability
. This Agreement shall not be assignable otherwise than by
operation of law by any party without the prior written consent of the other parties hereto, and
any purported assignment by any party without the prior written consent of the other parties shall
be void.
SECTION 6.07
Waivers and Amendments
. Any term or provision of this Agreement may be
waived at any time by the party that is entitled to the benefits thereof, and any term or provision
of this Agreement may be amended or supplemented at any time by the mutual consent of the parties
hereto, except that any waiver of any term or condition, or any amendment or supplementation, of
this Agreement must be in writing. A waiver of any breach or failure to enforce any of the terms
or conditions of this Agreement shall not in any way affect, limit or waive a partys rights
hereunder at any time to enforce strict compliance thereafter with every term or condition of this
Agreement.
SECTION 6.08
Third Party Rights
. This Agreement shall not create benefits on behalf of
any employee of Seller, any third party or any other Person except for the rights of Seller
Indemnitees and Purchaser Indemnitees pursuant to Article V hereof, and this Agreement shall be
effective only as between the parties hereto (including the Purchaser Indemnitees and Seller
Indemnitees with respect to Article V hereof), their successors and permitted assigns.
SECTION 6.09
Entire Agreement
. This Agreement (including the Exhibits, Schedules,
documents and instruments referred to herein and the Confidentiality Agreement, dated as of October
9, 2007, between Purchaser and Seller, all of which are intended to survive closing in accordance
with their terms) constitutes the entire agreement, and supersedes all other prior agreements and
understandings, both written and oral, among the parties, or any of them with respect to the
subject matter hereof.
SECTION 6.10
Severability
. In the event that any one or more of the provisions
contained in this Agreement shall be declared invalid, void or unenforceable, the remainder of the
provisions of this Agreement shall remain in full force and effect.
SECTION 6.11
Enforcement of Agreement
. Each party hereto acknowledges and agrees that
the other party would be irreparably damaged if any of the provisions of this Agreement are not
performed in accordance with their specific terms and that any breach by either party of any
covenant or agreement of such party contained in this Agreement could not be adequately compensated
in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to
which either party hereto may be entitled, at law or in equity, it shall be entitled to enforce any
covenant or agreement of the other party contained in this Agreement by a decree of specific
performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or
threatened breaches of any of the provisions of this Agreement, without posting any bond or other
undertaking.
SECTION 6.12
Arbitration
. Except as set forth in Sections 1.05 and 6.11, any dispute,
controversy or claim arising out of or relating to this Agreement, or the breach, termination or
validity thereof (
Dispute
), shall be finally settled by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association (
AAA
) then in
effect (the
Rules
), except as modified herein. The place of arbitration shall be
Charlotte, North Carolina. A party shall be deemed properly served and joined to an arbitration
proceeding
23
instituted pursuant to this Section 6.12 upon delivery of a notice (in accordance with Section
6.03) that such an arbitration has been instituted (a
Notice of Arbitration
). There
shall be one (1) neutral and impartial arbitrator appointed by Purchaser and Seller within fifteen
(15) days of the receipt by the respondent of the demand for arbitration if both parties agree on
the arbitrator;
provided
,
however
, that if there is disagreement on the selection
of the arbitrator, then there shall be three (3) neutral and impartial arbitrators, of whom
Purchaser shall appoint one (1) and Seller shall appoint one (1) within thirty (30) days of the
receipt by the respondent of the demand for arbitration. In such event, the two (2) arbitrators so
appointed shall select the chair of the arbitral tribunal within thirty (30) days of the
appointment of the second arbitrator. If any arbitrator is not appointed within the time limit
provided herein, such arbitrator shall be appointed by the AAA in accordance with the listing,
striking and ranking procedure in the Rules. Any arbitrator appointed by the AAA shall be a
retired judge or a practicing attorney with no less than fifteen (15) years of experience and shall
be an experienced arbitrator. Any arbitration decision or award rendered hereunder and the
validity, effect and interpretation of this Section 6.12 shall be governed by the Federal
Arbitration Act, 9 U.S.C. §1
et
seq
. Any such decision or award (i) shall be in
writing, (ii) shall state the findings of fact and conclusions of law on which it is based, (iii)
shall be final and binding upon the parties, and (iv) shall be the sole and exclusive remedy
between the parties regarding any claims, counterclaims, issues or accounting presented to the
arbitral tribunal. Judgment upon such decision or award may be entered in any court having
jurisdiction. By agreeing to arbitration, the parties do not intend to deprive any party of its
right to seek or any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral
attachment, or other order in aid of arbitration proceedings and the enforcement of any award.
Without prejudice to such provisional remedies as may be available under the jurisdiction of a
court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct
the parties to request that any court modify or vacate any temporary or preliminary relief issued
by such court, and to award damages for the failure of any party to respect the arbitral tribunals
orders to that effect. In addition to damages, the arbitral tribunal may award any remedy provided
for under applicable law or equitable principles and the terms of this Agreement, including
specific performance or other forms of injunctive relief.
[Signature page follows.]
24
IN WITNESS WHEREOF
, Seller and Purchaser have each caused this Agreement to be executed and
delivered as of the date first written above.
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SELLER
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SPRINGS GLOBAL US, INC.
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By:
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/s/ Flavio R. Barbosa
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Name:
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Flavio R. Barbosa
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Title:
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EVP & CFO
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PURCHASER
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CROWN CRAFTS INFANT PRODUCTS, INC.
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By:
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/s/ E. Randall Chestnut
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Name:
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E. Randall Chestnut
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Title:
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Vice President
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(Asset Purchase Agreement)
Exhibit 10.1
NONCOMPETITION AND NON-DISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NON-DISCLOSURE AGREEMENT
(the
Agreement
) is made and entered
into as of the 5th day of November, 2007, by and between
SPRINGS GLOBAL US, INC
., a Delaware
corporation (
Seller
), and
CROWN CRAFTS INFANT PRODUCTS, INC
., a Delaware corporation
(
Purchaser
).
WHEREAS
, Seller is engaged in the business of designing, marketing, importing, selling and
distributing various types of bedding, blanket and bath products and related accessories for the
Infant and Toddler Retail Market (as defined herein) through Sellers unincorporated baby product
line (the
Business
);
WHEREAS
, Seller and Purchaser have entered into that certain Asset Purchase Agreement of even
date herewith, to which a form of this Agreement is attached as
Exhibit D
, relating to the
sale to Purchaser of certain of Sellers assets, rights and properties relating to the Business
(the
Purchase Agreement
);
WHEREAS
, in order to protect the goodwill of the Purchased Assets (as defined in the Purchase
Agreement) and the Business and the other value to be acquired by Purchaser pursuant to the
Purchase Agreement for which Purchaser is paying substantial consideration, Purchaser and Seller
have agreed that Purchasers obligation to consummate the transactions contemplated by the Purchase
Agreement is subject to the condition, among others, that Seller shall have entered into this
Agreement;
WHEREAS
, Purchaser has separately bargained and paid additional consideration for the
covenants contained herein;
WHEREAS
, Seller acknowledges that the provisions of this Agreement are reasonable and
necessary to protect the legitimate interest of Purchaser and the business and goodwill acquired by
it pursuant to the Purchase Agreement; and
WHEREAS
, in order to induce Purchaser to consummate the transactions contemplated by the
Purchase Agreement, Seller is willing to enter into this Agreement;
NOW, THEREFORE
, in consideration of the premises and the mutual covenants set forth herein,
the parties agree as follows:
1.
Definitions
. As used in this Agreement, terms defined in the preamble and
recitals of this Agreement shall have the meanings set forth therein and the following terms shall
have the meanings set forth below:
(a)
Competitive Business
shall mean any Person engaged in the business of designing,
marketing or importing Competitive Products for sale or distribution to the Infant and Toddler
Retail Market.
(b)
Competitive Products
shall mean the type of products designed, marketed,
imported, and sold or distributed by Seller to the Infant and Toddler Retail Market in connection
with the operation of the Business prior to the date hereof (which shall not include
any Seller Exclusive Products (as hereinafter defined)) without regard to (i) the prices at
which such products may be sold, (ii) any tradenames, trademarks, brands, labels, logos or other
identifying characteristics used in selling such products, or (iii) the types of businesses within
the Infant and Toddler Retail Market that may purchase such products.
(c)
Confidential Information
shall mean all customer and supplier lists, marketing
arrangements, business plans, projections, financial information, training manuals, pricing
manuals, product development plans, market strategies, internal performance statistics and other
competitively sensitive information of Seller used solely in the Business and not generally known
by the public, whether or not in written or tangible form. Notwithstanding the foregoing, the
definition of Confidential Information shall not include any of the foregoing items insofar as they
relate to Seller Exclusive Products.
(d)
Infant and Toddler Retail Market
shall mean those retail sales departments
within retailers which sell products intended for children from ages zero to four years of age.
(e)
Permitted Activities
shall mean (i) owning not more than 5% of the outstanding
shares of publicly-held corporations or other entity engaged in a Competitive Business which have
shares listed on any national or regional securities exchange or registered with the Securities and
Exchange Commission (or any comparable regulatory body in any foreign jurisdiction) or through the
automatic quotation system of a registered securities association (any such publicly-held
corporation or other entity, a
Public Company
); (ii) owning any percentage of the
outstanding equity of a Person engaged in a Competitive Business where such equity was acquired by
Seller after the date hereof from a Person that is not an affiliate of Seller (with affiliate
defined as set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act
of 1934, as amended) and where such Competitive Businesss annual sales of Competitive Products
into the Protected Market (as hereinafter defined) constitute less than 10% of such Persons total
annual sales revenue, but in no event more than $10,000,000.00; (iii) carrying on or transacting
business with any Competitive Business if such activity does not include the sale or distribution
of Competitive Products, directly or indirectly, for ultimate purchase by consumers within the
Protected Market; and (iv) marketing, selling or distributing any Seller Exclusive Products.
(f)
Person
shall mean an individual, partnership, corporation, business trust,
limited liability company, limited liability partnership, joint stock company, trust,
unincorporated association, joint venture or other entity or a court, administrative agency or
other federal, state, local, municipal, foreign or other governmental or quasi-governmental
authority or agency of any nature.
(g)
Protected Market
shall mean the United States.
(h)
Restricted Period
shall mean the period commencing on the date of this Agreement
and ending on the date which is four (4) years from the date of this Agreement.
2
(i)
Seller Exclusive Products
means any Inventory (as defined in the Purchase
Agreement) that is not included within the Eligible Inventory (as defined in the Purchase
Agreement) transferred to Purchaser pursuant to the Purchase Agreement.
2.
No Competing Business
. Seller hereby agrees that, during the Restricted Period,
except as permitted by Section 5 of this Agreement, it will not, directly or indirectly, own,
manage, operate, control, invest in or acquire an interest in, or otherwise engage or participate
in the establishment, management or operation of, any Competitive Business that sells or
distributes Competitive Products, directly or indirectly, for ultimate purchase by consumers in the
Protected Market, without regard to whether the Competitive Business has any office, manufacturing
or other business facilities within the Protected Market.
3.
No Interference with the Business
. Seller hereby agrees that, during the
Restricted Period, except as permitted by Section 5 of this Agreement, Seller will not, directly or
indirectly, solicit, induce or influence any customer, supplier, lender, lessor or any other Person
that has a business relationship with the Business in the Protected Market, or which had on the
date of this Agreement a business relationship with the Business in the Protected Market, to
discontinue or reduce the extent of such relationship with the Business in the Protected Market; it
being understood that, nothing herein shall restrict Seller from carrying on or transacting
business with any such Person in respect of any Seller Exclusive Products.
4.
No Disclosure of Proprietary Information
. Seller hereby agrees that, during the
Restricted Period, it will not, directly or indirectly, disclose to anyone, or use or otherwise
exploit for its own benefit or for the benefit of anyone other than Purchaser, any Confidential
Information, except as permitted by Section 5 of this Agreement. Notwithstanding the foregoing,
Seller may make disclosure of Confidential Information if Seller reasonably concludes that public
disclosure of Confidential Information is required by applicable legal requirements and Seller
(i) gives Purchaser written notice of such proposed disclosure as far in advance of such disclosure
as is reasonably practicable, (ii) cooperates reasonably with Purchaser in its efforts to protect
the information from disclosure, including, without limitation, assisting Purchaser in obtaining,
at Purchasers expense, an appropriate protective order or other reliable assurance that
confidential treatment will be accorded such information, and (iii) limits its disclosure to the
minimum required by applicable legal requirements unless Purchaser agrees in writing to a greater
level of disclosure.
5.
Permitted Activities
. The restrictions set forth in Sections 2, 3 and 4 of this
Agreement shall not apply to Permitted Activities or to actions taken by Seller to the extent that
such actions are expressly approved in writing by Purchaser.
6.
Representations and Warranties
. Seller represents and warrants that this Agreement
is a legal, valid and binding obligation, enforceable against Seller in accordance with its terms.
7.
Waivers
. Neither party will be deemed as a consequence of any act, delay, failure,
omission, forbearance or other indulgences granted from time to time by it, or for any other reason
(a) to have waived, or to be estopped from exercising, any of its rights or remedies
3
under this Agreement or (b) to have modified, changed, amended, terminated, rescinded or
superseded any of the terms of this Agreement.
8.
Injunctive Relief
. Seller acknowledges that (i) any violation of this Agreement
will result in irreparable injury to Purchaser, (ii) damages at law would not be reasonable or
adequate compensation to Purchaser for violation of this Agreement, and (iii) Purchaser shall be
entitled to have the provisions of this Agreement specifically enforced by preliminary and
permanent injunctive relief without the necessity of proving actual damages and without posting
bond or other security as well as to an equitable accounting of all earnings, profits and other
benefits arising out of any such violation.
9.
Notices
. All notices and other communications hereunder shall be in writing and
shall be deemed given if (a) delivered by hand, (b) mailed by registered or certified mail (return
receipt requested), (c) by deposit with a nationally recognized courier for next business day
delivery, or (d) faxed and immediately confirmed both orally and in writing, to the parties at the
following addresses (or at such other addresses for a party as shall be specified by like notice)
and shall be deemed given on the date on which so hand-delivered or so telecommunicated or the next
business day following deposit with such courier or on the third business day following the date on
which so mailed, if deposited in a regularly-maintained receptacle for United States mail:
To Seller:
Springs Global US, Inc.
205 North White Street
Fort Mill, South Carolina 29715
Attn: Mr. Tom OConnor
Fax: (803) 547-1688
with a copy to (which shall not constitute notice to Seller):
Springs Global US, Inc.
205 North White Street
Fort Mill, South Carolina 29715
Attn: Legal Department
Fax: (803) 547-3766
To Purchaser:
Crown Crafts Infant Products, Inc.
916 S. Burnside Avenue
Gonzales, Louisiana 70737
Attn: Mr. E. Randall Chestnut
Fax: (225) 647-9112
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with a copy to (which shall not constitute notice to Purchaser):
Rogers & Hardin LLP
2700 International Tower
229 Peachtree Street, NE
Atlanta, Georgia 30303
Attn: Steven E. Fox, Esq.
Fax: (404) 525-2224
10.
Successors in Interest
. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their successors and assigns, and any reference to a party
hereto shall also be a reference to any such successor or assign.
11.
Number; Gender
. Whenever the context so requires, the singular number shall
include the plural and the plural shall include the singular, and the gender of any pronoun shall
include the other genders.
12.
Captions
. The titles, captions and table of contents contained in this Agreement
are inserted herein only as a matter of convenience and for reference and in no way define, limit,
extend or describe the scope of this Agreement or the intent of any provision hereof. Unless
otherwise specified to the contrary, all references to Sections are references to Sections of this
Agreement.
13.
Governing Law
. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to principles of conflicts of laws.
14.
Waivers and Amendments
. Any term or provision of this Agreement may be waived at
any time by the party that is entitled to the benefits thereof, and any term or provision of this
Agreement may be amended or supplemented at any time by the mutual consent of the parties hereto,
except that any waiver of any term or condition, or any amendment or supplementation, of this
Agreement must be in writing. A waiver of any breach or failure to enforce any of the terms or
conditions of this Agreement shall not in any way affect, limit or waive a partys rights hereunder
at any time to enforce strict compliance thereafter with every term or condition of this Agreement.
15.
Entire Agreement
. This Agreement constitutes the entire agreement, and supersedes
all other prior agreements and understandings, both written and oral, among the parties, or any of
them with respect to the subject matter hereof.
16.
Severability
. Any provision hereof which is prohibited or unenforceable in any
jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in
any other jurisdiction. To the extent permitted by law, the parties hereto waive any provision of
law which renders any such provision prohibited or unenforceable in any respect. The parties
acknowledge and agree that in the event that any provision of this Agreement should ever be deemed
to exceed the time, geographic, product or any other limitations permitted by applicable
5
law, it is their intent that any invalid, prohibited or unenforceable term or provision herein
be reformable by the reviewing court to the fullest extent permitted by applicable law.
17.
Counterparts
. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement. Executed counterparts may be delivered by
facsimile transmission or by other electronic communication.
18.
Enforcement of Certain Rights
. Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any Person other than the parties hereto,
and their successors or assigns, any rights, remedies, obligations or liabilities under or by
reason of this Agreement, or result in such Person being deemed a third party beneficiary of this
Agreement.
[Signature page follows.]
6
IN WITNESS WHEREOF
, Seller and Purchaser have each caused this Agreement to be executed and
delivered as of the date first written above.
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SELLER
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SPRINGS GLOBAL US, INC.
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By:
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/s/ Flavio R. Barbosa
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Name:
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Flavio R. Barbosa
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Title:
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EVP & CFO
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PURCHASER
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CROWN CRAFTS INFANT PRODUCTS, INC.
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By:
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/s/ E. Randall Chestnut
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Name:
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E. Randall Chestnut
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Title:
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Vice President
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(Noncompetition and Non-Disclosure Agreement)
Exhibit 10.2
Warehousing Agreement
Between
Springs Global US, Inc.
And
Crown Crafts Infant Products, Inc.
November 5, 2007
TABLE OF CONTENTS
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ARTICLE 1
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4
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TERM OF AGREEMENT
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4
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ARTICLE 2
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4
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WAREHOUSEMANS RESPONSIBILITIES
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4
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2.1
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Services
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4
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2.2
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Warehouse Operations
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5
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2.3
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Transfer of Products
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5
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ARTICLE 3
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5
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CROWN CRAFTS RESPONSIBILITIES
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5
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3.1
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Delivery and Shipments; Packaging
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5
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3.2
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Product Characteristics/Refusal to Accept Products
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5
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3.3
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Prohibition of Consignment
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6
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3.4
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Warehouseman Compensation
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6
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ARTICLE 4
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6
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TERMS OF PAYMENT
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6
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ARTICLE 5
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7
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LIABILITIES AND INDEMNIFICATION
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7
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5.1
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General - Warehouse
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7
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5.2
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Demurrage; Detention
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8
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5.3
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Shrinkage/Damage Allowance
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8
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5.4
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Insurance
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8
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ARTICLE 6
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8
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PHYSICAL INVENTORIES AND ADJUSTMENTS
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8
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6.1
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Physical Inventories
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8
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6.2
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Inventory Adjustments
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9
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6.3
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Reconciliation of Inventory Records
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9
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ARTICLE 7
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10
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FORCE MAJEURE
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10
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ARTICLE 8
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10
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DEFAULT
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10
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8.1
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Automatic Default
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10
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8.2
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General Default; Right to Cure
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10
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8.3
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Effect of Termination
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11
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ARTICLE 9
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11
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RECORDS
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11
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ARTICLE 10
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11
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INDEPENDENT CONTRACTOR
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11
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ARTICLE 11
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11
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COMPLIANCE
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11
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ARTICLE 12
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12
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SUCCESSORSHIP
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12
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ARTICLE 13
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12
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APPLICABLE LAW; SEVERABILITY; SAVINGS
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12
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ARTICLE 14
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12
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ENTIRE AGREEMENT; AMENDMENT; CAPTIONS
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12
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ARTICLE 15
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12
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NOTICES
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12
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ARTICLE 16
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13
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WAIVER
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13
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ARTICLE 17
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14
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EXECUTION IN COUNTERPARTS; FACSIMILE SIGNATURES
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SCHEDULES
Schedule A Description of Services
Schedule B Rate Schedule
Schedule C Insurance Schedule
WAREHOUSING AGREEMENT
This
WAREHOUSING AGREEMENT
(as amended, restated, supplemented or otherwise modified from time
to time, this
Agreement
) is made and entered into as of the 5th day of November, 2007, by
and between
SPRINGS GLOBAL US, INC.
, a Delaware corporation (
Warehouseman
), and
CROWN
CRAFTS INFANT PRODUCTS, INC.
, a Delaware corporation (
Crown Crafts
). Warehouseman and
Crown Crafts are each referred to herein as a
Party
and collectively as the
Parties
.
WITNESSETH:
WHEREAS
, the Parties have entered into an Asset Purchase Agreement dated as of the date hereof
(the
Asset Purchase Agreement
) pursuant to which Springs Global has agreed to sell, and
Crown Crafts has agreed to buy, certain of the assets of Springs Globals baby product line; and
WHEREAS
, in connection with the transactions contemplated by the Asset Purchase Agreement,
Crown Crafts desires that Springs Global provide, or cause to be provided, to Crown Crafts, and
Springs Global is willing to provide, or cause to be provided, to Crown Crafts, certain warehousing
services in connection with its warehouse located at 1495 East Locust Street, Ontario, California
91761 (the
Warehouse
);
NOW, THEREFORE
, for and in consideration of the mutual agreements herein contained, it is
hereby mutually agreed as follows:
ARTICLE 1
TERM OF AGREEMENT
The term of this Agreement shall commence on November 5, 2007, and continue in effect until
the close of business on May 5, 2008 (
Term
).
ARTICLE 2
WAREHOUSEMANS RESPONSIBILITIES
2.1
Services
. During the Term, Warehouseman agrees to provide for Crown Crafts
certain warehousing services described in
Schedule A
attached hereto and incorporated
herein by
this reference (the
Services
) at the Warehouse. As part of the Services,
Warehouseman shall accept and keep in a safe, neat and orderly condition such goods as from time to
time may be tendered by Crown Crafts for warehousing or handling in accordance with the terms of
this Agreement (the
Products
). Warehouseman further agrees to furnish and/or obtain
sufficient personnel, equipment, and other accessories necessary to perform the Services in
accordance with this Agreement.
2.2
Warehouse Operations
. The Parties agree that, except as specifically modified
herein, Warehouseman will be a warehouseman as described in Article 7 of the Uniform Commercial
Code (
UCC
) as enacted in the state where the Warehouse is located and is entitled to all
rights and subject to all obligations described therein. Warehouseman shall perform the Services
with substantially the same degree of care, skill, diligence and compliance with applicable law and
in substantially the same manner as performed immediately prior to the date hereof.
The Warehouse space will be utilized by Warehouseman as efficiently as practicable without
creating inefficiencies in handling operations. All Products shall be segregated by stock keeping
unit and physical location in the same manner as similar products of Warehouseman were segregated
prior to the date hereof or as otherwise agreed upon by the Parties (a stock keeping unit being
the lowest level for which inventory material handling records are maintained for purposes of this
Agreement). Crown Crafts shall notify Warehouseman of stocking limitations, Products to be
accounted for separately and any other Product peculiarities in writing prior to delivery of such
Products to the Warehouse.
Crown Crafts may have certain employees working at the Warehouse during the Term, subject to
the terms and conditions herein. Prior to any employee of Crown Crafts entering the Warehouse,
Crown Crafts shall notify Warehouseman of (i) the name of such employee, (ii) the length of time
such employee will be working at the Warehouse, and (iii) the duties to be performed by such
employee. Warehouseman shall have the right at any time to remove any employee or other invitee of
Crown Crafts from the premises if Warehouseman determines, in its reasonable discretion, that such
employee or invitee presents a risk to Warehouseman, Warehousemans employees or assets or any
other person or asset located at the Warehouse.
2.3
Transfer of Products
. No Products shall be delivered or transferred except upon
receipt by Warehouseman of completed shipping documents from Crown Crafts. Instructions to
transfer Products on the books of Warehouseman shall not be effective until said instructions are
delivered to Warehouseman. All charges relating to Warehousemans Services to Crown Crafts,
including the receipt, storage, servicing, handling and transfer of the Products, shall be
chargeable to Crown Crafts as set forth in
Schedule B
attached hereto and incorporated
herein by this reference.
ARTICLE 3
CROWN CRAFTS RESPONSIBILITIES
3.1
Delivery and Shipments; Packaging
. Crown Crafts will advise Warehouseman of its
warehousing needs in sufficient time to allow Warehouseman to make necessary preparations for such
warehousing. Crown Crafts will also provide Warehouseman with instructions for shipments from the
Warehouse, which information will constitute Crown Crafts instructions for shipment of Products.
All Products tendered for warehousing will be properly marked and packaged for handling.
3.2
Product Characteristics/Refusal to Accept Products
. Crown Crafts shall promptly
notify Warehouseman of the characteristics of any Products that require special
handling instructions, material, equipment or precautions. No Products shall be delivered to Warehouseman
that (a) may be hazardous or dangerous to Warehousemans employees, subcontractors or agents,
whether by handling or exposure; (b) are defined as hazardous materials under any federal, state or
local law or regulation governing the environment, including, but not limited, to The Resource
Conservation and Recovery Act (RCRA), The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (CERCLA), or Department of Transportation Research and Special
Programs Administration (RSPA including IATA, ICAO and IMDG); or (c) are or should be reasonably
believed or known to be likely to cause damage to Warehousemans premises or equipment, the
Products, or other goods that may be stored by Warehouseman at the Warehouse. Warehouseman may
refuse to accept any Products that are identified as coming within the immediately preceding
categories or that reasonably might cause infestation, contamination or damage to other goods in
its custody. Warehouseman shall promptly notify Crown Crafts of such refusal and shall have no
liability for any demurrage, detention, transportation or other charges by virtue of such refusal.
3.3
Prohibition of Consignment
. Crown Crafts agrees not to ship Products to
Warehouseman as the named consignee. If, in violation of this Agreement, Products are to be
shipped to Warehouseman as named consignee, Crown Crafts agrees to notify the applicable carrier,
in writing and prior to such shipment, that Warehouseman named as consignee is a warehouseman under
law and has no beneficial title or interest in such Products. Crown Crafts will also deliver a
copy of such notice to Warehouseman prior to such shipment.
3.4
Warehouseman Compensation
. Crown Crafts shall pay Warehouseman compensation for
the Services provided by Warehouseman and the charges made by Warehouseman in accordance with
Schedule B
.
ARTICLE 4
TERMS OF PAYMENT
Except as may otherwise be specifically stated in any of the applicable schedules hereto,
Warehouseman shall invoice Crown Crafts promptly after the end of each month for all Services
performed, and costs incurred by Warehouseman, under this Agreement during the preceding month.
Crown Crafts shall pay the amount invoiced within thirty (30) days from the date of such invoice.
Payment shall be considered made when payments have been received by Warehouseman.
In the event Crown Crafts disputes any invoices (or any part thereof), Crown Crafts shall
provide Warehouseman with written notice of such dispute within thirty (30) days of receipt of such
invoice. Crown Crafts shall, however, pay that portion of the invoice not in dispute. Any such
amount not in dispute and not paid within forty-five (45) days shall bear interest at a rate of
0.5% per month (the
Default Rate
) from the date such amount was due. Crown Crafts
further agrees that it will pay all charges which are invoiced and that are not expressly disputed
without offset or counterclaim of any kind.
Additionally, if any disputed portion of such invoice is later paid by Crown Crafts, or is
determined subsequently to be due and owing to Warehouseman, Crown Crafts shall also pay
Warehouseman interest on such amount from the original due date at the Default Rate. Crown Crafts
agrees to pay, in the event its account becomes delinquent and is turned over to any attorney for
collection, reasonable attorneys fees, plus all consultant fees, court costs, and attendant
collection costs actually incurred.
ARTICLE 5
LIABILITIES AND INDEMNIFICATION
5.1
General Warehouse
. Warehouseman shall be responsible for loss or damage to all
Products under its care, custody and control in the Warehouse as provided in the UCC, subject to
the provisions of this Article 5;
provided
that Warehouseman shall have no liability to
Crown Crafts for any loss or damage to Products to the extent such loss or damage is caused by
Crown Crafts or any of its employees, agents or invitees.
Warehouseman agrees to indemnify, save harmless, and defend Crown Crafts from and against any
and all claims for loss, damage or injury (including court costs and reasonable attorneys fees)
and from and against any suits, actions, or legal proceedings brought against Crown Crafts for or
on account of any loss or damage to the tangible property of Crown Crafts or third parties, or for
or on account of any injuries received or sustained by any person, including, but not limited to,
employees of Warehouseman and employees and agents of Crown Crafts, caused by, or arising out of,
any intentional, reckless or grossly negligent act or omission of Warehouseman or its employees,
agents or invitees in performing the Services, except to the extent such claim arises from the
gross negligence, recklessness or intentional act of Crown Crafts, its employees, agents or
servants.
Crown Crafts shall indemnify and hold harmless Warehouseman from (i) any and all claims for
unpaid transportation charges, including undercharges, demurrage and detention, in connection with
Products shipped to or from the Warehouse, except for such claims caused by Warehousemans failure
to exercise the standard of care set forth in Section 2.2 above, and (ii) any injury (including
death at anytime resulting therefrom) incurred by Crown Crafts employees, agents or invitees while
such person is present at the Warehouse, other than any such injury arising from the gross
negligence, recklessness or intentional act of Warehouseman, its employees, agents or servants.
In addition, Crown Crafts agrees to indemnify, save harmless, and defend Warehouseman from and
against any and all claims for loss, damage or injury (including court costs and reasonable
attorneys fees) and from and against any suits, actions, or legal proceedings brought against
Warehouseman for or on account of any loss or damage to the tangible property of Warehouseman or
third parties, or for or on account of any injuries received or sustained by any person, including,
but not limited, to employees of Crown Crafts and employees and agents of Warehouseman, caused by,
or arising out of, any intentional, reckless or grossly negligent act or omission of Crown Crafts
or its employees, agents or invitees, as well as from any claims, expenses or demands of any kind
made by Crown Crafts employees, agents, servants or contractors while at the Warehouse in
connection with the performance of this Agreement, except to the extent such claim arises from the
gross negligence, recklessness or intentional act of Warehouseman, its employees, agents or
servants. Further, Crown Crafts agrees to secure a
waiver of subrogation from Crown Crafts
workers compensation insurance carrier in support of the above.
5.2
Demurrage; Detention
. Warehouseman shall not be liable for demurrage, detention
or delays in obtaining and loading cars or vehicles for outbound shipments unless Warehouseman has
failed to exercise the standard of care set forth in Section 2.2 above. If detention occurs for
which Warehouseman is liable, payment of such detention shall be made by Warehouseman to the
carrier.
5.3
Shrinkage/Damage Allowance
. Crown Crafts agrees to a damage and inventory
shrinkage allowance (applied over the Term) of 0.25% of the value of the Products stored, for
which, in the case of loss or damage to Products for any reason or mysterious disappearance,
however caused, Warehouseman shall not be liable.
5.4
Insurance
. Warehouseman shall maintain at all times during the life of this
Agreement a policy or policies of insurance in full force and effect with companies and in amounts
identified on
Schedule C
attached hereto and incorporated herein by this reference,
covering warehouse legal liability for loss or damage to Products due to the negligence of
Warehouseman. Warehouseman does not otherwise insure the Products. Warehouseman shall not be held
liable for any actions related to shipment of Products and will not carry insurance coverage
related to shipping transactions to or from the Warehouse. Warehouseman agrees to furnish, at
Crown Crafts request, certificates of all policies of applicable insurance, such certificates to
name Crown Crafts as certificate holder. Warehouseman shall be responsible for insuring any
physical assets that it owns or leases and that are used in the Warehouse. Further, Warehouseman
agrees to secure a waiver of subrogation from Warehousemans insurance carrier in support of the
above.
Crown Crafts agrees to maintain general comprehensive, unimpaired liability insurance in an
amount of not less than one million dollars ($1,000,000) per occurrence, including contractual
liability endorsement specifically covering this Agreement, and statutory workers compensation
insurance. This insurance will be primary. Crown Crafts agrees to furnish, at Warehousemans
request, certificates of all policies of applicable insurance, such certificates to name
Warehouseman as an additional insured. Further, Crown Crafts agrees to secure a waiver of
subrogation from Crown Crafts insurance carrier in support of the foregoing.
ARTICLE 6
PHYSICAL INVENTORIES AND ADJUSTMENTS
6.1
Physical Inventories
. A physical inventory shall be performed reasonably promptly
following the execution of this Agreement. Subsequently, joint Crown Crafts/Warehouseman physical
inventories shall be performed upon mutual agreement by Crown Crafts and Warehouseman, but at least
once at the end of the Term. All shipping, receiving and inventory transaction processing will be
terminated during the period of the physical inventory to insure a simultaneous cut-off of all
activity. Charges for hourly warehouse personnel will be as set forth on
Schedule B
.
6.2
Inventory Adjustments
. If stock differences are found in any count, Warehouseman
and Crown Crafts will list gains as receipts, and losses as deductions, thus reconciling the book
record with the actual stock on hand. Those changes will be based upon counts agreed to and signed
by Crown Crafts representative and Warehousemans representative.
(A) For purposes of determining the net balance of physical units on Warehousemans account,
all shortages and overages for the period, after taking account of the shrinkage allowance set
forth in Section 5.3, shall be reconciled by stock keeping unit.
(B) If there is a shortage for the period covered, after netting across stock keeping units,
the dollar amount (number of units of each stock keeping unit multiplied by Crown Crafts
respective standard costs, less allowances provided for in Section 5.3
above, all of which shall be subject to the provisions of subsection 6.2(D) below) shall be
payable to Crown Crafts by Warehouseman. If there is an overage on the account, adjustments will
be made to inventory book records and no claim will be filed by Warehouseman. The period covered
by the physical inventory will be closed to future netting routines except under the following
conditions:
(i) proven miscount in physical inventory;
(ii) proven clerical error by Crown Crafts;
(iii) located or recovered lost shipment;
(iv) proven packing or case marking error by Crown Crafts supplier; or
(v) a shortage in a subsequent inventory matches an overage in a previous inventory.
(C) If the net inventory variance calculated during the physical inventory is an overage and
Warehouseman paid for a shortage in connection with the preceding physical inventory, Crown Crafts
will pay a refund to Warehouseman based on the overage, but only to the extent that it does not
exceed the shortage for which Warehouseman has paid.
(D) The dollar values used to determine the amounts of money owed by Warehouseman in the event
a physical inventory reveals a shortage shall be Crown Crafts standard cost of said Products.
6.3
Reconciliation of Inventory Records
. If at any time discrepancies exist between
Crown Crafts records and the physical inventory, Warehouseman and Crown Crafts shall provide to
each other their records of all inventory adjustments from the time of the previous reconciliation
to the time of the inventory count in which the discrepancy was found.
ARTICLE 7
FORCE MAJEURE
A Party shall not be responsible for delay or non performance hereunder if performance is
prevented or delayed by any cause or event beyond such Partys reasonable control. Without
limiting the generality of the foregoing, such causes or events shall include, directly or
indirectly, without limitation, Acts of God or elements of nature, fire, floods, other
catastrophes, war, public enemies, seizure under legal process (not resulting from action or
inaction of the non-performing Party), strikes, lockouts, labor disorders, riots, sabotage,
explosion, acts of terrorism, civil commotions, closing of public highways, governmental
interference or regulations, embargo, accident, derailment, epidemics or quarantine restrictions,
the act or default of the other Party, or any other reason of a similar or dissimilar nature beyond
such Partys reasonable control.
In the event there is a default or delay due to Force Majeure per the above, the
non-performing Party shall be excused from further performance (other than payment of previously
accrued charges) or observance of the obligation(s) so affected for as long as such circumstances
prevail, provided such Party continues to use its commercially reasonable efforts to recommence its
performance or observance whenever and to whatever extent possible without delay. Warehouseman
shall use its commercially reasonable efforts to protect the Products that are in the Warehouse
during the Force Majeure event. The Party claiming a Force Majeure event will notify the other
Party as soon as practicable regarding the existence, nature and approximate duration of the Force
Majeure event, and will promptly give further notice when the Force Majeure event ceases, whereupon
its duty to perform shall resume.
ARTICLE 8
DEFAULT
8.1
Automatic Default
. In the event bankruptcy, receivership, insolvency,
reorganization, dissolution, liquidation or other similar proceeding is instituted by or against
either Party under the United States Bankruptcy Code or other law of the United States or any
state, then this Agreement shall be deemed to be automatically terminated by the other Party,
without notice or demand, and such other Party may exercise all rights granted under applicable law
and this Agreement.
8.2
General Default; Right to Cure
. Except for reasons provided in Article 7 and
Section 8.1 above, in the event either Party fails, in any material respect, to perform its
obligations under this Agreement, then the other Party may terminate this Agreement upon sixty (60)
days prior written notice to the other;
provided
,
however
, that such notice shall
specify all such failures to perform and allow the Party in default no less than thirty (30) days
to correct such failures. However, Warehouseman and Crown Crafts agree that breach of payment
terms in Article 4 shall constitute a default, which shall give Warehouseman the right to terminate
this Agreement by written notice to Crown Crafts if such default is not remedied within five (5)
days of such notice.
8.3
Effect of Termination
. Termination under this provision, or under any other
provision of this Agreement, shall not relieve or release either Party from any liability or
obligation, which accrued prior to the date of such termination.
ARTICLE 9
RECORDS
Warehouseman shall at all times keep accurate and complete books and records with regard to
receipt, transfer, and other handling of Products (the
Crown Crafts Files
) and shall
maintain the Crown Crafts Files for a period of two (2) years. Subject to maintaining the
confidentiality of records of any customers other than Crown Crafts, Crown Crafts and its
authorized representatives shall have the right, at its own cost and expense, to inspect and audit
the Crown Crafts Files at any reasonable time. Crown Crafts right to audit the Crown Crafts Files
shall survive expiration or termination of this Agreement. Crown Crafts shall have the right to
enter upon the Warehouse at all reasonable times for the purpose of inspecting Products;
provided
that any such inspection by Crown Crafts or its agents or employees shall be
conducted in such a manner so as not to interfere with the normal operations of the Warehouseman.
ARTICLE 10
INDEPENDENT CONTRACTOR
It is agreed and understood that Warehouseman is entering into this Agreement as an
independent contractor, that all of Warehousemans personnel engaged in work under this Agreement
are to be considered for all purposes as employees of Warehouseman, and that all of Crown Crafts
personnel engaged in work at the Warehouse are to be considered for all purposes as employees of
Crown Crafts. Under no circumstances shall employees of Warehouseman be construed or considered to
be employees of Crown Crafts or employees of Crown Crafts be construed or considered to be
employees of Warehouseman. Each party hereto agrees to furnish, at the other partys request,
evidence of such partys workers compensation insurance with respect to its employees as then in
effect. Crown Crafts will not be responsible for acts or omissions of any of Warehousemans
employees or agents. The relationship between the Parties will be, at all times, that of
independent contractors, which status governs all relationships between Warehouseman, Crown Crafts
and other third parties.
ARTICLE 11
COMPLIANCE
Warehouseman shall at all times comply, in all material respects, with all applicable federal,
state and municipal laws and the regulations of the respective regulatory bodies having
jurisdiction over Warehouseman. Warehouseman will procure and maintain all necessary and
applicable operating authorities, permits and licenses.
ARTICLE 12
SUCCESSORSHIP
This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their
successors and assigns, provided neither Party to this Agreement shall assign or sublet its
interest or obligations herein without the prior written consent of the other Party.
Notwithstanding the foregoing, either Party has the right to assign or subcontract part or all of
the obligations hereunder without the consent of the other Party so long as the assignee or
subcontractor is, and remains throughout the Term, a parent, affiliate or subsidiary of such
Party.
ARTICLE 13
APPLICABLE LAW; SEVERABILITY; SAVINGS
Warehouseman and Crown Crafts understand and agree that the law of the State of Delaware,
without regard to principles of conflicts of law, shall govern this Agreement. If any provision of
this Agreement shall be held to be invalid or unenforceable for any reason, the remaining
provisions shall continue to be valid and enforceable. If a court finds that any provision of this
Agreement is invalid or unenforceable, but that by limiting such provision it would become valid
and enforceable, then such provision shall be deemed to be written, construed, and enforced as so
limited.
ARTICLE 14
ENTIRE AGREEMENT; AMENDMENT; CAPTIONS
This Agreement, together with all schedules and attachments, constitutes the entire agreement
between the Parties with respect to the subject matter hereof and may not be amended or changed
except by written agreement signed by Warehouseman and Crown Crafts. To the extent that the terms
of any warehouse receipts, acknowledgment forms, order forms, bills of lading, invoices, or similar
documents sent and/or signed by one or both Parties conflict with or are inconsistent with the
terms of this Agreement, the terms of this Agreement shall control. The captions herein are for
convenience only and shall not be construed as interpretive or as a substantive part of this
Agreement.
ARTICLE 15
NOTICES
Any notice or demand required or permitted hereunder shall be given in writing addressed to
Crown Crafts or Warehouseman as listed below or to such other address as may be specified in
writing to the other Party. All such communications shall be deemed given if (a) delivered by
hand, (b) mailed by registered or certified mail (return receipt requested), (c) by deposit with a
nationally recognized courier for next business day delivery, or (d) faxed and immediately
confirmed both orally and in writing, to the parties at the following addresses (or at such other
addresses for a party as shall be specified by like notice) and shall be deemed given
on the date on which so hand-delivered or so telecommunicated or the next business day
following deposit with such courier or on the third business day following the date on which so
mailed, if deposited in a regularly-maintained receptacle for United States mail:
For notices to Warehouseman:
Springs Global US, Inc.
205 North White Street
Fort Mill, South Carolina 29715
Attn: Mr. Tom OConnor
Fax: (803) 547-1688
With a copy to (which shall not constitute notice to Warehouseman):
Springs Global US, Inc.
205 North White Street
Fort Mill, South Carolina 29715
Attn: Legal Department
Fax: (803) 547-3766
For notices to Crown Crafts:
Crown Crafts Infant Products, Inc.
916 S. Burnside Avenue
Gonzales, Louisiana 70737
Attn: Mr. E. Randall Chestnut
Fax: (225) 647-9112
With a copy to (which shall not constitute notice to Crown Crafts):
Rogers & Hardin LLP
2700 International Tower
229 Peachtree Street, NE
Atlanta, Georgia 30303
Attn: Steven E. Fox, Esq.
Fax: (404) 525-2224
ARTICLE 16
WAIVER
Compliance with the provisions of this Agreement may be waived only by a written document
signed by the Party granting the waiver. The failure of either Party at any time to require
performance by the other Party of any provision hereof shall in no way affect the full right to
require such performance at any time thereafter. Neither shall the waiver by any Party of a breach
of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision
or as a waiver of the provision itself.
ARTICLE 17
EXECUTION IN COUNTERPARTS; FACSIMILE SIGNATURES
This Agreement may be executed in one or more counterparts, all of which shall be considered
one and the same agreement, and shall become a binding agreement when one or more counterparts have
been signed by each party and delivered to the other parties. A signature to this Agreement
delivered by telecopy or other electronic communication shall be deemed an original signature for
all purposes hereunder.
[Signature page follows.]
IN WITNESS WHEREOF
, the Parties have caused this Agreement to be executed by their respective
duly authorized representatives as of the date first set forth above.
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SPRINGS GLOBAL US, INC.
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By:
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/s/ Flavio R. Barbosa
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Name:
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Flavio R. Barbosa
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Title:
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EVP & CFO
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Date:
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11/5/07
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CROWN CRAFTS INFANT PRODUCTS, INC.
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By:
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/s/ E. Randall Chestnut
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Name:
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E. Randall Chestnut
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Title:
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Vice President
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Date:
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11/5/07
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[Signature page for Warehousing AgreementSGUS/Crown Crafts]
EXECUTION COPY
SCHEDULE A
Description of Services
(1)
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Location(s): 1495 East Locust Street, Ontario, California 91761
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(2)
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Warehouse Services to Include: (All Services will be in accordance with
Warehouseman standard warehouse operating procedures and standards unless specifically
modified in this Agreement or any Schedule):
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A.
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Warehouse Services to include:
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(1)
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receipt of Product into Warehouseman warehouse
inventory system,
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(2)
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forward receipt information to Crown Crafts for
entry into Crown Crafts inventory system
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(3)
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devanning containers,
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(4)
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unloading,
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(5)
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sorting,
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(6)
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storing,
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(7)
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pick orders according to Crown Crafts pick
ticket instructions,
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(8)
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pick and pack according to Crown Crafts pick
ticket instructions,
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(9)
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palletizing,
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(10)
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inspecting in a manner consistent with
Warehousemans existing quality control process that existed prior to
the Closing Date (as defined in the Asset Purchase Agreement),
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(11)
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labeling according to Crown Crafts
instructions,
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(12)
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handling,
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(13)
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repacking,
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(14)
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rehandling inventory according to Crown Crafts
instructions
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(15)
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consolidating,
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(16)
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routing,
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(17)
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staging,
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(18)
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loading on outbound trailer
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(19)
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adjusting inventory out of Warehouseman
warehouse inventory system
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(20)
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provide Crown Crafts with completed pick
tickets for entry into Crown Crafts inventory system
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(21)
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set up new SKUs in Warehouseman warehouse
inventory system
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(22)
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provide daily or, if agreed by the Parties,
less frequent reporting of ending inventory and periodic activity by
transaction code to Crown Crafts for reconciliation with Crown Crafts
inventory system, and
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(23)
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cycle counting according to Crown Crafts
instructions
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(3)
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Normal Workday Operating Hours: 5:00 AM PST to 1:30 PM PST
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Normal Workday Operating Hours to exclude the following holidays: New Years Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the day after
Thanksgiving, Christmas Eve, Christmas Day.
SCHEDULE B
Rate Schedule
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(1)
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Rates for Warehouse Services
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Regular
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Overtime
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Holidays
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Hourly:
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Quality Reinspectors,
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$11.00 per hour
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1.5 times the Regular
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Approx 2.0 times the
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Order Fillers & Lift
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Rate
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Regular Rate
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Truck Operators
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A-3 Inventory Clerk
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$11.83 per hour
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1.5 times the Regular
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Approx 2.0 times the
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Rate
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Regular Rate
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A-5 Inventory Clerk
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$14.14 per hour
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1.5 times the Regular
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Approx 2.0 times the
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Rate
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Regular Rate
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Salary:
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Baby Supervisor
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$4,693 per 4 week
month, $5,866 per 5
week month
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Allocated DC
Manager,
Industrial
Engineer and
Second
Shift Supervisor
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$7,676 per 4 week
month, $9,595 per 5
week month
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Hourly rates are exclusive of Warehouseman fringe benefits. Fringe benefits will be charged to
Crown Crafts at a fixed rate of 40% of the Regular Hourly charges incurred each month. Temporary
labor, if necessary, will be billed to Crown Crafts at the actual cost billed to Warehouseman.
Crown Crafts will only be responsible for Hourly and Salary charges to the extent Warehouse
Services are provided to Crown Crafts during any month in the Term.
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(2)
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Rates for Distribution Materials, Office Supplies or Special Supplies used
for Crown Crafts:
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Actual cost.
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(3)
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Utilities, Taxes, Maintenance and Insurance;
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Any charges for Utilities, Taxes, Maintenance and Insurance shall be passed through to Crown
Crafts on a prorated basis each month throughout the Term. Such additional charges may include,
but are not limited to Warehousemans actual costs for gas, oil, propane, diesel fuel, electricity,
water, sewer, telephone, security, property taxes, property insurance, business insurance and
building maintenance. Crown Crafts prorated share of such total expense shall be commensurate
with Crown Crafts portion of the square footage for the entire Warehouse.
Warehousemans actual warehouse lease costs (currently $58,041 per month) will be passed
through to Crown Crafts on a prorated basis each month throughout the Term. Crown Crafts prorated
share of such total expenses will be based on the percentage calculated by dividing the square
footage of the Warehouse that was allocated to Warehousemans baby products line prior to the date
hereof into the total square footage of the Warehouse.
Warehousemans actual costs throughout the Term for leased equipment including lift trucks,
handling equipment, copiers, faxes and other office equipment dedicated to Warehousemans baby
products line prior to the date hereof (currently $2,852 per month) will be passed through to Crown
Crafts
.
SCHEDULE C
Insurance Schedule
A Certificate of Insurance naming Crown Crafts as Certificate Holder
is attached hereto as Attachment C-1.
A Certificate of Insurance naming Warehouseman as Certificate Holder
is attached hereto as Attachment C-2.
Exhibit 10.3
TRANSITION SERVICES AGREEMENT
between
Springs Global US, Inc.
and
Crown Crafts Infant Products, Inc.
Dated as of November 5, 2007
This Transition Services Agreement (this
Agreement
) is made and entered into as of
November 5, 2007 (the
Effective Time
), by and between Springs Global US, Inc., a Delaware
corporation (
Springs Global
), and Crown Crafts Infant Products, Inc., a Delaware
corporation (
Crown Crafts
).
WITNESSETH
:
WHEREAS, Springs Global and Crown Crafts have entered into an Asset Purchase Agreement dated
as of the date hereof (the
Asset Purchase Agreement
) pursuant to which Springs Global has
agreed to sell, and Crown Crafts has agreed to buy, certain of the assets of Springs Globals baby
product line;
WHEREAS, in connection with the transactions contemplated by the Asset Purchase Agreement,
Crown Crafts desires that Springs Global provide, or cause to be provided, to Crown Crafts, and
Springs Global is willing to provide, or cause to be provided, to Crown Crafts, certain transition
services as set forth herein during the periods set forth herein; and
WHEREAS, capitalized terms used and not defined in this Agreement shall have the meanings
ascribed to them in the Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
TERMS AND CONDITIONS
1.
Agreement to Provide Services
.
1.1
Agreement
. Upon the terms and subject to the conditions contained herein and in
the Schedules attached hereto, (a) Springs Global hereby agrees to provide, or cause to be
provided, to Crown Crafts the Transition Services (as defined herein), and (b) Crown Crafts agrees
to pay Springs Global the Service Costs (as defined herein) for such Transition Services.
1.2
Transition Services
. In this Agreement, the term
Transition Services
shall mean and refer to the services relating to the operation of Crown Crafts business set forth
on Schedule A; each particular such service shall be referred to herein as a
Transition
Service
.
1.3
Transition Period
. Springs Global shall provide the Transition Services to Crown
Crafts during the periods (each, a
Transition Period
) that shall commence at the
Effective Time and shall, with respect to each Transition Service, continue for the period ending
on the date that is six (6) months after the Effective Time or such shorter period, if any, set
forth on Schedule A, unless earlier terminated in accordance with Section 1.4.
-1-
1.4
Phase Out or Termination of Transition Services
. Crown Crafts shall have the
unconditional right, in its sole and absolute discretion, to direct that any or all of the
Transition Services provided to it be terminated effective on a date established by Crown Crafts
(
Early Termination
) that is prior to the applicable termination date for such Transition
Service. Such Early Termination will be effective no earlier than fifteen (15) days after written
notice of the Early Termination is received by Springs Global, unless Springs Global consents in
writing to a shorter period. Any such Early Termination shall be final, and the amounts payable by
Crown Crafts hereunder shall not be changed in any respect by any such Early Termination. Crown
Crafts may at any time request that the level of any specific item of the Transition Services be
reduced or phased out, subject to mutual written agreement of the parties at any time. If Crown
Crafts fails to pay any Service Costs or Reimbursable Expenses (as defined herein) as and when due
hereunder (subject to the provisions of Sections 2.2 and 2.3 hereof) or breaches any other material
provision of this Agreement, then Springs Global may terminate this Agreement by giving written
notice of termination to Crown Crafts;
provided
, that Springs Global will not terminate
this Agreement without first giving Crown Crafts ten (10) business days following such notice to
cure such failure or breach.
2.
Payment for Transition Services
.
2.1
Service Costs and Reimbursable Expenses
. In consideration for Springs Globals
provision of the Transition Services, (i) Crown Crafts will reimburse Springs Global (a) for
Springs Globals service costs determined in accordance with Schedule A (the
Service
Costs
) and (b) for Springs Globals actual documented out-of-pocket expenses not otherwise set
forth on Schedule A but nevertheless actually and reasonably incurred by Springs Global in
connection with providing, or in order to provide or cause to be provided, the Transition Services
(the
Reimbursable Expenses
);
provided
that no Reimbursable Expenses exceeding
$5,000 in the aggregate shall be incurred without the prior written consent of Crown Crafts.
2.2
Reimbursement of Service Costs and Expenses
. Springs Global shall invoice Crown
Crafts for Service Costs and Reimbursable Expenses promptly after the end of each fiscal month
during each Transition Period. Such invoices shall set forth in reasonable detail the Transition
Services provided during such month and the Service Costs and Reimbursable Expenses payable by
Crown Crafts therefor. Subject to Section 2.3, each invoice shall be paid by wire transfer not
later than thirty (30) calendar days following receipt by Crown Crafts thereof in accordance with
the written instructions provided by Springs Global to Crown Crafts;
provided
, that no such
payment by Crown Crafts shall be deemed to be a waiver of its rights under Section 2.3. This
Section 2.2 and Section 2.3 below shall survive any termination of this Agreement with respect to
Transition Services performed pursuant to this Agreement for which Springs Global has not yet been
paid by Crown Crafts.
2.3
Audits; Objections
. Crown Crafts (and its accountants) shall have the right, upon
reasonable written notice and at its expense, to review the applicable books and records of Springs
Global with respect to Springs Globals obligations under this Agreement and to confer with
employees of Springs Global to review the accuracy of any of the invoices provided to Crown Crafts
(in each case during business hours and without unreasonably disrupting Springs Globals normal
operations). In the event that Crown Crafts disputes any such invoice or the amount of any such
remittances, Crown Crafts shall pay all undisputed
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charges on such invoice and shall notify Springs Global in writing of its objections. Crown
Crafts and Springs Global shall negotiate in good faith to attempt to resolve such dispute. In the
event the parties are unable to resolve such dispute, the parties will seek to resolve such dispute
in accordance with Section 7.11 of this Agreement.
3.
Service Standards
. Springs Global shall perform or cause to be performed the
Transition Services with the same degree of care, skill, diligence and compliance with applicable
law and in substantially the same manner as performed immediately prior to the Effective Time.
4.
Force Majeure
. No party shall be liable for any failure of performance
attributable to acts, events or causes (including, but not limited to, war, riot, rebellion, civil
disturbances, power failures, failure of telephone lines and equipment, flood, storm, fire and
earthquake or other acts of God or conditions or events of nature, or any law, order, proclamation,
regulation, ordinance, demand or requirement of any governmental authority) beyond its control that
prevent in whole or in part performance by such party hereunder. In the event of any such force
majeure event, Springs Global will take commercially reasonable steps to mitigate the adverse
effect of such force majeure event. Subject to the foregoing, the affected provisions and/or other
requirements of this Agreement shall be suspended during the period of such disability and Springs
Global shall have no liability to Crown Crafts or any other party in connection therewith other
than by reason of breach or nonfulfillment of its covenants in this Section 4. To the extent
Springs Global is unable to provide services during any period of force majeure, Crown Crafts shall
not be liable for any Service Costs or Reimburseable Expenses during such period of force majeure.
Springs Global shall use commercially reasonable efforts to remove such disability as soon as and
to the extent reasonably possible and to assist Crown Crafts in finding third parties to provide
affected Transition Services at rates no less favorable to Crown Crafts than those applicable
hereunder during the period of such disability. Unless otherwise agreed in writing by Crown
Crafts, the Transition Period relating to each Transition Service affected by such disability,
other than Transition Services related to information technology, shall be deemed to be extended by
a period of time equal to the period of such disability.
5.
Access to Employees
.
(a) At Crown Crafts request, Springs Global shall use reasonable efforts to provide Crown
Crafts with reasonable access to the employees providing the applicable Transition Services
hereunder.
(b) Crown Crafts agrees that during the term of this Agreement and for a period of twelve (12)
months following the termination of this Agreement Crown Crafts shall, and shall cause its
subsidiaries and Affiliates (as defined herein) to, not employ, solicit, tamper with, or divert (or
attempt to employ, solicit, tamper with, or divert) away from Springs Global or its Affiliates any
of Springs Globals or its Affiliates employees (other than employees solely associated with the
baby product line) for the purpose of engaging or employing them.
6.
Indemnification
.
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(a) Springs Global shall indemnify, defend, save and hold harmless Crown Crafts, its
Affiliates, their officers, directors, employees, agents and representatives from and against any
and all losses, liabilities, claims, damages, actions, fines, penalties, expenses or costs
(including court costs and reasonable attorneys fees) (
Losses
) suffered or incurred by
any such Person arising from or in connection with Springs Globals nonfulfillment of or failure to
comply with any covenant, agreement or obligation of Springs Global hereunder, except to the extent
resulting from Crown Crafts or any of its Affiliates acts or omissions.
(b) Crown Crafts shall indemnify, defend and hold harmless Springs Global, its Affiliates,
their officers, directors, employees, agents and representatives from and against any and all
Losses suffered or incurred by any such Person arising from or in connection with Crown Crafts
nonfulfillment of or failure to comply with any covenant, agreement or obligation of Crown Crafts
hereunder, except to the extent resulting from Springs Globals or any of its Affiliates acts or
omissions.
(c) Notwithstanding any other provision of this Agreement, no party shall be liable for lost
profit, lost revenue or any other form of indirect, incidental, special, consequential or punitive
damages, even if that party has been informed of the possibility of such damages.
7.
General Provisions
.
7.1
Definitions
. For the purposes of this Agreement and the Schedules and Exhibits
hereto:
Affiliate
means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with such Person. Control of any Person shall
consist of the power to direct the management and policies of such Person (whether through the
ownership of voting securities, by contract, as trustee or executor or otherwise) and shall be
deemed to exist upon the ownership of securities entitling the holder thereof to exercise more than
fifty percent (50%) of the voting power in the election of directors of such Person (or other
Persons or body performing similar functions).
7.2
Notices
. All notices and other communications hereunder shall be in writing and
shall be deemed given if (a) delivered by hand, (b) mailed by registered or certified mail (return
receipt requested), (c) by deposit with a nationally recognized courier for next business day
delivery, or (d) faxed and immediately confirmed both orally and in writing, to the parties at the
following addresses (or at such other addresses for a party as shall be specified by like notice)
and shall be deemed given on the date on which so hand-delivered or so telecommunicated or the next
business day following deposit with such courier or on the third business day following the date on
which so mailed, if deposited in a regularly-maintained receptacle for United States mail:
If to Springs Global:
Springs Global US, Inc.
205 North White Street
Fort Mill, South Carolina 29715
Attn: General Counsel
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Fax: (803) 547-3766
If to Crown Crafts:
Crown Crafts Infant Products, Inc.
916 S. Burnside Avenue
Gonzales, Louisiana 70737
Attn: Mr. E. Randall Chestnut
Fax: (225) 647-9112
With a copy to (which shall not constitute notice to Crown Crafts):
Rogers & Hardin LLP
2700 International Tower
229 Peachtree Street, NE
Atlanta, Georgia 30303
Attn: Steven E. Fox, Esq.
Fax: (404) 525-2224
7.3
Assignment; Successors and Assigns
. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Neither party hereto may assign either this Agreement or any of its rights or interests hereunder,
or delegate any of its duties or obligations hereunder, without the prior written approval of the
other party.
7.4
No Third-Party Beneficiaries
. Except as set forth in Section 6, nothing in this
Agreement shall be construed as giving any person, other than the parties hereto and their heirs,
successors, legal representatives and permitted assigns, any right, remedy or claim under or in
respect of this Agreement or any provision hereof.
7.5
Remedies
. Except as otherwise expressly provided herein, none of the remedies set
forth in this Agreement is intended to be exclusive, and each party shall have all other remedies
now or hereafter existing at law or in equity or by statute or otherwise, and the election of any
one or more remedies shall not constitute a waiver of the right to pursue other available remedies.
Nothing contained herein shall be deemed to be a limitation on any remedies that otherwise may
exist or be available to any party under the Asset Purchase Agreement.
7.6
Interpretation; Definitions
. The headings contained in this Agreement or in any
Schedule hereto are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. The terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa. This Agreement shall be construed without regard
to any presumption or rule requiring construction or interpretation against the party drafting or
causing any instrument to be drafted. When a reference is made in this Agreement to Sections or
Schedules, such reference shall be to a Section of or Schedule to this Agreement unless otherwise
indicated. Whenever the words include, includes or including are used in this Agreement,
they shall be deemed to be followed by the words without limitation. The phrases the date of
this Agreement, the date hereof and terms of
-5-
similar import, unless the context otherwise requires, shall be deemed to refer to the date
set forth in the first paragraph of this Agreement. The words hereof, hereby, herein,
hereunder and similar terms in this Agreement shall refer to this Agreement as a whole (including
the Schedules) and not to any particular Section in which such words appear. All references herein
to dollar amounts shall be deemed to be references to U.S. Dollars.
7.7
Amendment; Waiver
. Neither this Agreement nor any term hereof may be amended or
otherwise modified other than by an instrument in writing signed by the parties. No provision of
this Agreement may be waived, discharged or terminated other than by an instrument in writing
signed by the party against whom the enforcement of such waiver, discharge or termination is
sought.
7.8
Counterparts.
This Agreement and any amendments hereto may be executed by
facsimile and in one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have been signed by each
of the parties and delivered to the other party.
7.9
Severability
. If any provision of this Agreement or the application of any such
provision to any Person or circumstance shall be held invalid, illegal or unenforceable in any
respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision hereof.
7.10
Governing Law
. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Delaware applicable to contracts entered into and to be
performed entirely within such State.
7.11
Dispute Resolution
. Any dispute under this Agreement shall be resolved using the
arbitration provisions set forth in Section 6.12 of the Asset Purchase Agreement
7.12
Confidentiality
. Each party shall keep confidential and cause its Affiliates and
their respective officers, directors, employees and representatives to keep confidential the
Schedules to this Agreement and all information received from the other party regarding the
Transition Services or the business and affairs of the other party in connection with performance
of the Transition Services and to use such information only for the purposes set forth in this
Agreement, unless otherwise agreed to in writing by the party from which such information was
received. In the event a party is required by any court or legislative or administrative body (by
oral questions, interrogatories, requests for information or documents, subpoena, civil
investigation demand or similar process) to disclose any confidential information provided pursuant
to this Agreement, the party shall provide the other party with prompt notice of such requirement
in order to afford the other party an opportunity to seek an appropriate protective order or other
remedy. However, if the other party is unable to obtain or does not seek such protective order and
the party required to disclose the confidential information is, in the opinion of its counsel,
legally compelled to disclose such confidential information, disclosure of such information may be
made without liability under this Agreement.
7.13
Authority
. Neither of the parties hereto shall act or represent or hold itself
out as having authority to act as an agent or partner of the other party, or in any way bind or
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commit the other party to any obligations. Nothing contained in this Agreement shall be
construed as creating a partnership, joint venture, agency, trust or other association of any kind,
each party being individually responsible only for its obligations as set forth in this Agreement.
7.14
Term of Agreement
. This Agreement will terminate and be of no further force or
effect immediately as of the time and date that the last remaining Transition Period (as such
Transition Period may have been extended pursuant hereto) shall have either expired or been
terminated;
provided
, that upon termination or expiration of this Agreement, (i) no party
hereto shall be relieved of any liability for any breach or nonfulfillment of any provision of this
Agreement and (ii) Sections 6 and 7 will survive any termination or expiration of this Agreement.
The amounts that Crown Crafts is obligated to pay on a monthly basis pursuant to Section 2.1 will
be prorated on a daily basis for any partial month of the term of this Agreement.
7.15.
Schedules
. All Schedules annexed hereto or referred to herein are hereby
incorporated in and made a part of this Agreement as if set forth in full herein.
7.16
Entire Agreement
. This Agreement (including the Schedules hereto) contains the
entire agreement and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings, whether written or oral, relating to
such subject matter.
7.17
Taxes
. Solely to the extent included in the pricing set forth on the applicable
Schedule, Service Costs payable by Crown Crafts to Springs Global shall be inclusive of any
applicable sales, use, excise or other similar taxes (each, a Tax) applicable to the sale of
Transition Services. In the event that any Tax is properly chargeable on the provision of a
Transition Service as indicated on the applicable Schedule, Crown Crafts shall be responsible for
and shall pay the amount of any such Tax in addition to and at the same time as the Service Costs.
All Service Costs will be paid free and clear of and without withholding or deduction for or on
account of any Tax, except as may be required by applicable law.
7.18
Employees
. All persons engaged in providing any Transition Service shall be the
sole and exclusive employees of Springs Global or, as applicable, an Affiliate of Springs Global,
with Springs Global or such Affiliate, as the case may be, solely responsible for all employment
decisions regarding such employees and all costs and obligations associated with such employees,
including wages, benefits and Taxes, and for complying with all employment and Tax laws related to
such employment.
[Remainder of Page Intentionally Left Blank. Signature Page Follows.]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first
above written.
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SPRINGS GLOBAL US, INC.
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By:
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/s/ Flavio R. Barbosa
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Name:
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Flavio R. Barbosa
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Title:
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EVP & CFO
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CROWN CRAFTS INFANT PRODUCTS, INC.
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By:
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/s/ E. Randall Chestnut
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Name:
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E. Randall Chestnut
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Title:
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Vice President
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[Signature page for Transition Services Agreement SGUS/Crown Crafts]
SCHEDULE A
TRANSITION SERVICES
CROWN CRAFT INFANT PRODUCTS, INC. TRANSITION SERVICES
I. Information Technology
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Transition Support Services
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Transition Support Services will be provided, as needed and requested, to
assist Crown Crafts in conversion to its EDI, ERP, Distribution and Financial systems
and to its own Network facilities during the Transition Period. This support will be
coordinated by the Springs Global designated Project Manager who will serve as the
primary point of contact between Springs Global and Crown Crafts with respect to any
Transition Support Services.
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Transition Support Services provided will be delivered in accordance with
Springs Globals customary work methods and processes and will not include
modification of any current Springs Global systems or infrastructure to meet Crown
Crafts transition requirements with the exception of isolating PkMS for stand-alone
operations related to the baby products section of the Ontario Warehouse during the
Transition Period.
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Any Transition Support Services continuing after the period ended five
business days following the Effective Time will be provided at the time and materials
rates established in the Fees & Adjustments section below (to clarify, Transition
Support Services are not included in the monthly Service Fee described below).
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Services during the Transition Period
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Infrastructure Services: Infrastructure support will be limited to phone, fax and
photocopier services provided by Springs Global. Crown Crafts will be responsible
for establishing and maintaining all hardware, software, data communication and
infrastructure related to the operations of Crown Crafts systems in the Ontario,
California warehouse. Crown Crafts agrees to provide, within two weeks prior to
implementation, documents which describe in detail any changes proposed in the
network infrastructure of the Ontario Warehouse after the date of this Agreement.
Springs Global will review the documents within 5 working days and approve the
changes or recommend alternatives. Implementation will not commence without
approval, via written notice or email, by Springs Global. Network infrastructure
includes: cabling, network switches or routers, wireless communications, or the
addition of new devices such as PCs, terminals, printers or radio frequency
equipment.
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Application Services: PkMS and EDI application support and forwarding or
re-transmitting EDI transactions to Crown Crafts.
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A-1
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Crown Crafts and Springs Global shall ensure that their respective networks remain
separate.
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Service Level Agreement Parameters
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Springs Global will provide operational services in a manner consistent with its
normal practices and delivery methods, and will provide:
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7 day, 24 hour operation with up to two Sundays per month scheduled
downtime from 12:00 a.m. to 7:00 a.m. Eastern Time and other Sundays from 12:00
a.m. to 4:00 a.m. Additional extended downtime for planned, major upgrades will
be required by Springs Global. Crown Crafts will be notified via email about
any additional extended downtime
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Processor uptime measurement of 98% excluding planned downtime;
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Completion of nightly batch processing cycles by 8:00 a.m. Eastern Time
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Response to service requests and security changes in a manner consistent with
Springs Globals normal processes.
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Compliance with License Terms
Crown Crafts agrees that it shall not knowingly cause any breach of any licenses for software
used to provide the Transition Services. Springs Global agrees that it will pay the PkMS
license fee required with respect to Crown Crafts use of PkMS during the Transition Period.
Fees and Adjustments
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The monthly Service Fee for services provided by Springs Global to Crown Crafts,
as described, is $4,000 for Application Services. Infrastructure Services will be
addressed in the separate Warehousing Agreement between Crown Crafts and Springs
Global.
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In addition, Springs Global will provide programming/engineering personnel
(subject to the availability of qualified information technology personnel) for
Transition Support Services continuing after the period ended five business days
following the Effective Time (described above in this Section I of Schedule A) and
other service not included herein, billable at: $100/hour.
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The monthly Service Fee shall include:
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a.
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Provision of systems support in a manner consistent with that
provided by Springs Global during the three-month period prior to the Effective
Time.
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b.
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Normal troubleshooting of device, application, and network issues
reported by Crown Crafts or Springs Global using customary trouble reporting
processes.
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The monthly Service Fee shall
not
include:
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a.
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Any necessary software licenses and associated fees for
information processing systems (other than PkMS) Crown Crafts requires to be
used at the Ontario Warehouse and that were not used by Springs Global as of
the Effective Time. Crown Crafts hereby agrees to pay directly for all such
software licensing and assignment fees of any description charged by third
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A-2
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party software manufacturers, hardware, or telecom providers in connection
with the performance of the Services hereunder.
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b.
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Any labor costs incurred by Springs Global personnel relating to
provision of any services not provided prior to the Effective Time, such as
the addition of new customers that submit purchase orders or other
transaction requests in EDI format, installation of equipment, cost of any
equipment or software licensing, conversion of data after the period ended
five business days following the Effective Time, or any other costs unique to
or attributable to Crown Crafts.
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c.
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The cost of any goods or third party services purchased by
Springs Global in connection with the provision of the Services as well as
Springs Globals out-of-pocket expenses in connection with any such purchases
shall be paid by Crown Crafts. Out-of-pocket expenses include, without
limitation, all additional electronic mailbox and transaction fees and other
value added network (VAN) charges relating to the establishment and
maintenance by Springs Global of additional mailboxes to support the
processing of EDI Purchase Orders or other EDI requested transmissions from
Crown Crafts customers, hardware maintenance for devices based at Crown
Crafts, software licensing, or acquisition of software or hardware to
establish service for Crown Crafts, and telecommunications expenses for
provision of service to Crown Crafts facilities or operations.
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A-3
II. Finance
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Identification and reconciliation of Assumed Liabilities between Springs Global and
Crown Crafts.
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International Accounts Payable
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LC and DA processing on inventory purchased by Crown Crafts where Springs Global is
still the Importer of Record.
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Transition of credit support documents; e.g., letter of credit.
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Accounts Receivable/Claims
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Identification of cash receipts and claims received by Springs Global that belong to
Crown Crafts.
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Reconciliation of cash receipts and claims received by Crown Crafts that belong to
Springs.
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Periodic wire transfer of net cash receipts received by Springs Global that belong to
Crown Crafts.
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Internal and External Financial Reporting
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Assistance in preparation of 2006 and 2007 interim and annual financial statements.
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Audit Support related to SEC Reporting
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Assistance provided to Crown Crafts external auditors in preparation
of abbreviated financial statements.
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Springs Globals finance department
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Transition Services will be provided during the Transition Period without charge
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A-4
III.
Springs Asia
Transition Services
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Springs Asia provided product development, design, quality
assurance, vendor relations, purchasing and import/export services to
Springs Global prior to the Effective Time. For a period of one month
following the Effective Time, Springs Asia will assist in the
transition of such services for existing products of Springs Globals
infant and toddler product line to Crown Crafts without charge
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Service Provider
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Services provided by Springs Asia employees and/or Springs Asia corporate management.
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A-5
IV. Customer Service
Customer Orders and Routing
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EDI orders for customers with trading partner numbers specific to
infant and toddler products will be redirected to Crown Crafts and will not require
any Springs Global Customer Service action.
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EDI orders for customers with trading partner numbers that are not
specific to infant and toddler products will be reviewed on a daily basis and
re-transmitted to Crown Crafts Customer Service.
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Manual orders received by Springs Global Customer Service will be
forwarded to Crown Crafts Customer Service
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Customers with web-based routing or that have special set-up
requirements for routing that are not in place at Crown Craft will require Springs
Global Customer Service assistance. Crown Crafts will provide customer purchase
orders specifics to Springs Global Customer Service for routing with customers.
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Springs Globals Customer Service Department
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The monthly Service Fee for services relate to Customer Orders and Routing will be
$1,500 per month.
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A-6
Exhibit 10.4
FIRST AMENDMENT TO
FINANCING AGREEMENT
THIS FIRST AMENDMENT TO FINANCING AGREEMENT
(the
Amendment
), dated as of this 5th
day of November, 2007, is made by and among
CROWN CRAFTS, INC.
, a Delaware corporation (
CCI
);
CHURCHILL WEAVERS, INC.
, a Kentucky corporation (
Weavers
);
HAMCO, INC.
, a Louisiana corporation (
Hamco
);
CROWN CRAFTS INFANT PRODUCTS, INC.
, a Delaware corporation (
CCIP
; together with CCI,
Weavers and Hamco, the
Companies
and each a
Company
); and
THE CIT GROUP/COMMERCIAL SERVICES, INC.
, a New York corporation (
CIT
),
to the Financing Agreement, dated July 11, 2006 (as amended, modified, restated or
supplemented from time to time, the
Financing Agreement
), among CIT and the Companies.
All capitalized terms used herein without definition shall have the meanings ascribed to such terms
in the Financing Agreement.
RECITALS
A. Pursuant to the Financing Agreement, CIT has agreed to make loans and extend credit to the
Companies in the amounts, upon the terms and subject to the conditions contained therein.
B. The Companies have requested that CIT (i) consent to CCIP purchasing certain assets and
assuming certain liabilities of the Baby Division of Springs Global US, Inc., a Delaware
corporation (
Springs
), and (ii) increase the amount of the Revolving Line of Credit and
make a term loan to the Companies to facilitate such transactions.
C. CIT has agreed to such requests, and to accomplish the foregoing CIT and the Companies have
agreed to amend the Financing Agreement and the other Loan Documents as set forth in this
Amendment.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby expressly acknowledged, the
Companies and CIT hereby agree as follows:
ARTICLE I
CONSENT
Subject to the terms and conditions of the Financing Agreement and the other terms and
conditions contained in this Amendment, CIT consents to CCIP purchasing certain assets and assuming
certain liabilities of the Baby Division of Springs, pursuant to the terms and conditions of that
certain Asset Purchase Agreement, dated on or about the date hereof, between CCIP and Springs.
ARTICLE II
AMENDMENTS TO FINANCING AGREEMENT
The Financing Agreement is hereby amended as follows:
2.1 Section 1.1 of the Financing Agreement is amended as follows:
(a) The following new defined terms are added in their proper alphabetical sequence:
First Amendment Effective Date
shall mean the date on which the First
Amendment to this Financing Agreement is executed and delivered by the Companies and
the conditions precedent to the effectiveness of such amendment are satisfied or
waived by CIT.
Prepayment Premium
shall mean an amount equal to the product obtained
by multiplying the principal amount of the Term Loan prepaid by one percent (1%).
Springs
shall mean Springs Global US, Inc., a Delaware corporation.
Springs Acquisition
shall mean the purchase by CCIP of certain of the
assets of the Baby Division of Springs, and the assumption by CCIP of certain of the
liabilities of the Baby Division of Springs, all as more fully described in the
Springs Purchase Agreement.
Springs Purchase Agreement
shall mean the Asset Purchase Agreement,
dated November 5, 2007, between CCIP, as purchaser, and Springs, as seller, pursuant
to which CCIP has consummated the Springs Acquisition.
Term Loan
shall mean the term loan in the principal amount of
$5,000,000 made by CIT to the Companies on or about the First Amendment Effective
Date on the terms and conditions set forth in
Section 4.2
of this Financing
Agreement.
2
Promissory Note
shall mean the note in the form of
Exhibit A
attached hereto delivered by the Companies to CIT to evidence the Term Loan.
(b) The definition of Borrowing Base is amended by deleting the figure $3,000,000 from the
second clause (a) therein and by substituting in lieu thereof the figure $5,800,000.
(c) The definition of Obligations is amended by deleting the parenthetical phrase at the end
of clause (a) therein and by substituting in lieu thereof the following new parenthetical phrase:
(including, without limitation, all Revolving Loans, the Term Loan and all obligations of CIT
under Letter of Credit Guaranties).
(d) The definition of Revolving Line of Credit is amended by deleting therefrom the figure
$22,000,000 and by substituting in lieu thereof the figure $26,000,000.
(e) The definition of Termination Date is amended by deleting the word and figure three
(3) and by substituting in lieu thereof the word and figure four (4).
2.2 Section 3.5(a) of the Financing Agreement is amended in its entirety to read as follows:
(a)
Generally
. Unless this Financing Agreement expressly provides
otherwise, so long as no Event of Default shall have occurred and remain
outstanding, CIT agrees to apply (i) all Proceeds of Trade Accounts Receivable,
Wal-Mart Letters of Credit, Inventory and the Factoring Credit Balances to the
Revolving Loan Account, (ii) all Proceeds of all other Collateral, to the last
maturing installments of principal of the Term Loan until fully repaid, and (iii)
any other payment received by CIT with respect to the Obligations, in such order and
manner as CIT shall elect in the exercise of its reasonable business judgment.
2.3 Section 4 of the Financing Agreement is amended in its entirety to read as follows:
SECTION 4.
Term Loan
4.1
Promissory Note Evidencing Term Loan
.
The Companies agree to
execute and deliver to CIT the Promissory Note to evidence the Term Loan to be
extended to the Companies by CIT.
4.2
Term Loan
.
(a)
Funding of Term Loan
.
Upon CITs receipt of the Promissory Note
evidencing the Term Loan and the satisfaction of the other conditions set forth in
Section 4.2(a)
of the First Amendment to this Financing Agreement, CIT
agrees to make the Term Loan to the Companies.
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(b)
Repayment of Term Loan
.
The principal amount of the Term Loan shall
be due and payable in twenty-four (24) consecutive monthly principal installments of
$208,333.33 each commencing on December 1, 2007 and continuing on the first day of
each month thereafter through November 1, 2009.
4.3
Provisions Regarding all Term Loans
.
(a)
Repayment Upon Termination
.
In the event this Financing Agreement
or the Revolving Line of Credit is terminated by either CIT or the Companies for any
reason whatsoever, the Term Loan, together with all accrued interest thereon and the
applicable Prepayment Premium, shall be due and payable in full on the effective
date of such termination, notwithstanding any other provision of this Financing
Agreement or the Promissory Note to the contrary.
(b)
Optional Prepayments
.
The Companies, at their option, may prepay
the Term Loan at any time, in whole or in part,
provided
that on the date of
such prepayment, there shall be due and payable (i) accrued interest on the
principal so prepaid to the date of such prepayment and (ii) the Prepayment Premium
due with respect to such prepayment.
(c)
Application of Prepayments
.
Except as CIT and the Companies shall
otherwise agree in a separate writing, each prepayment of the Term Loan (whether
voluntary or mandatory) shall be applied to the last maturing installments of
principal of the Term Loan until fully repaid.
(d)
No Reborrowing
.
To the extent repaid, the principal amount of the
Term Loan may not be reborrowed under this
Section 4
.
(e)
Authority to Charge Revolving Loan Account
.
The Companies hereby
authorize CIT, without notice to the Companies, to charge the Revolving Loan Account
with all payments due under this
Section 4
as such amounts become due. Any
amount charged to the Revolving Loan Account shall be deemed a Chase Bank Rate Loan
hereunder and shall bear interest at the rate provided in
Section 8.1
(or
Section 8.2
, if applicable) of this Financing Agreement. The Companies
confirm that any charges which CIT may make to the Revolving Loan Account as
provided herein will be made as an accommodation to the Companies and solely at
CITs discretion.
2.4 Section 7.2(c)(iii)(x) is amended in its entirety to read as follows:
(x) In the event of any loss or damage to any Inventory by condemnation, fire
or other casualty, CIT agrees to apply the Casualty Proceeds to repay the
outstanding Revolving Loans, and then to repay the Term Loans in the manner set
forth in
Section 4.3(c)
.
4
2.5 A new Section 7.2(m) is added as follows:
(m)
Springs Acquisition
.
The Springs Purchase Agreement is in full
force and effect as of the First Amendment Effective Date and has not been amended
or waived by any party thereto in any material respect. All representations and
warranties of the parties to the Springs Purchase Agreement are, to the best of
CCIPs knowledge, true and correct in all material respects as of the First
Amendment Effective Date with the same effect as though made on such date. All
requisite approvals by governmental authorities and regulatory bodies having
jurisdiction over CCIP in connection with the Springs Acquisition contemplated by
the Springs Purchase Agreement have been duly obtained and no such approvals impose
any conditions to the consummation of the transactions contemplated by the Springs
Purchase Agreement or to the conduct of the business of CCIP in the same manner as
heretofore conducted. CCIP has not been notified that legal proceedings adverse to
the transaction contemplated by the Springs Purchase Agreement are contemplated by
any person, including any governmental body or agency.
2.6 A new Section 8.1.1 is added between Sections 8.1 and 8.2 as follows:
8.1.1
Interest on Term Loans
.
Interest on the Term Loan shall be
payable monthly on the first day of each month and shall accrue at a rate per annum
equal to one half percent (0.5%)
plus
the Chase Bank Rate. In the event of
any change in said Chase Bank Rate, the rate set forth in the first sentence of this
Section 8.1.1
shall change, effective as of the date of such change, so as
to remain equal to one half percent (0.5%)
plus
the new Chase Bank Rate.
All interest rates shall be calculated based on a 360-day year and actual days
elapsed.
2.7 Section 8.11 is amended in its entirety to read as follows:
8.11
Early Termination Fee; Prepayment Premium
.
In the event the
Companies terminate the Revolving Line of Credit or this Financing Agreement on an
Early Termination Date, the Early Termination Fee, if any, shall be due and payable
in full on the date of termination. In the event the Companies voluntarily prepay
the Term Loan, in whole or in part, the Prepayment Premium applicable thereto shall
be due and payable in full on the date of such prepayment.
2.8 Section 11 is amended by deleting the proviso at the end of the third sentence beginning
with the word
provided
and by substituting in lieu thereof the following new proviso:
provided
that the Companies pay to CIT any Early Termination Fee and Prepayment Premium
due and payable hereunder on the date of termination.
2.9 Exhibit A attached to this Amendment is made Exhibit A to the Agreement.
5
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Companies hereby represent and warrant to CIT that:
3.1
Compliance With the Financing Agreement
. As of the execution of this Amendment,
each Company is in compliance with all of the terms and provisions set forth in the Financing
Agreement and the other Loan Documents to be observed or performed by such Company.
3.2
Representations in Financing Agreement
. The representations and warranties of
each Company set forth in the Financing Agreement and the other Loan Documents are true and correct
in all material respects except to the extent that such representations and warranties relate
solely to or are specifically expressed as of a particular date or period which is past or expired
as of the date hereof.
3.3
No Event of Default
. No Default or Event of Default exists.
ARTICLE IV
MODIFICATION OF LOAN DOCUMENTS; CONDITIONS PRECEDENT
4.1
Loan Documents
. The Financing Agreement and the other Loan Documents are amended
to provide that any reference therein to the Financing Agreement shall mean, unless otherwise
specifically provided, the Financing Agreement as amended hereby, and as further amended, restated,
supplemented or modified from time to time.
4.2
Conditions Precedent
. This Amendment shall become effective and be deemed
effective as of the date hereof upon the satisfaction or waiver by CIT of the following conditions
precedent:
(a) Receipt by CIT of the following documents, each to be in form and content satisfactory to
CIT and its counsel:
(i) this Amendment, duly executed by the Companies;
(ii) the Promissory Note, duly executed by the Companies;
(iii) amendments to the CCIP Factoring Agreement and the Hamco Factoring Agreement,
duly executed by CCIP and Hamco, pursuant to which (i) CIT will agree to refund the unpaid
Minimum Factoring Fees (as defined in the CCIP Factoring Agreement and the Hamco Factoring
Agreement) charged to CCIP and Hamco by CIT for the Contract Year (as defined in the CCIP
Factoring Agreement and the Hamco Factoring Agreement) ending July 11, 2007 and (b) the
Minimum Factoring Fees owing
6
by CCIP and Hamco in the Contract Year ending July 11, 2008 will be increased to
$240,000 and adjusted back to $225,000 for each Contract Year thereafter;
(iv) tax lien, judgment lien and UCC searches on Springs from all jurisdictions
reasonably required by CIT, such searches to verify that CIT will have a first priority
security interest in the Collateral to be purchased from Springs, subject only to Permitted
Encumbrances;
(v) resolutions of the Board of Directors of each Company authorizing the execution,
delivery and performance of this Amendment and the other Loan Documents to be executed by
each Company in connection with the transactions contemplated by this letter, certified by
the Secretary or Assistant Secretary of each Company as of the date thereof, together with a
certificate of such Secretary or Assistant Secretary as to the incumbency and signature of
the officer(s) executing this Amendment and such other Loan Documents on behalf of each
Company;
(vi) an executed Officers Certificate of each Company, satisfactory in form and
substance to CIT, certifying that as of the date thereof (x) the representations and
warranties contained herein are true and correct in all material respects, (y) each Company
is in compliance with all of the terms and provisions set forth herein and (z) no Default or
Event of Default has occurred;
(vii) all information necessary for CIT to issue wire transfer instructions on behalf
of the Companies for the loans to be made under the Agreement to finance a portion of the
cash purchase price payable to Springs in connection with the Springs Acquisition;
(viii) the favorable, written opinion of counsel to the Companies as to the
transactions contemplated by this letter;
(ix) landlord or warehouseman agreements with respect to all leased premises where the
Collateral purchased from Springs will be located and for which the Companies have not
already provided such an agreement to CIT;
(x) copies of the Springs Purchase Agreement and the other purchase documents related
thereto, accompanied by the certificate of the president of the Companies as to certain
representations and warranties contained therein and the consummation of the Springs
Acquisition;
(xi) a collateral assignment of CCIPs rights and remedies under the Springs Purchase
Agreement, duly executed by CCIP and acknowledged and agreed to by Springs and any escrow
agent under the Springs Purchase Agreement; and
(xii) such other documents, instruments and agreements as CIT shall reasonably request
in connection with the foregoing matters.
7
(b) All approvals, licenses, consents and filings necessary to permit the Springs Acquisition
and the other transactions contemplated by this Amendment shall have been obtained and made;
(c) There shall not have occurred any event, condition or state of facts which would
reasonably be expected to have a Material Adverse Effect, as reasonably determined by CIT;
(d) No Default or Event of Default shall have occurred and be continuing; and
(e) Simultaneously with the execution of the Amendment and the other Loan Documents
contemplated by the Amendment, the Springs Acquisition shall be consummated in accordance with the
terms of the Springs Purchase Agreement and other purchase documents that will be satisfactory to
CIT and its counsel; and
(f) CIT shall have satisfactorily completed its due diligence on the Springs Acquisition and
the Collateral to be purchased in connection therewith.
ARTICLE V
GENERAL
5.1
Full Force and Effect
. As expressly amended hereby, the Financing Agreement and
the other Loan Documents shall continue in full force and effect in accordance with the provisions
thereof. As used in the Financing Agreement and the other Loan Documents, hereinafter, hereto,
hereof, or words of similar import, shall, unless the context otherwise requires, mean the
Financing Agreement or the other Loan Documents, as the case may be, as amended by this Amendment.
5.2
Applicable Law
. This Amendment shall be governed by and construed in accordance
with the internal laws and judicial decisions of the State of New York.
5.3
Counterparts
. This Amendment may be executed in one or more counterparts, each of
which shall constitute an original, but all of which when taken together shall constitute but one
and the same instrument.
5.4
Further Assurances
. The Companies shall execute and deliver to CIT such
documents, certificates and opinions as CIT may reasonably request to effect the amendments
contemplated by this Amendment.
5.5
Headings
. The headings of this Amendment are for the purpose of reference only
and shall not effect the construction of this Amendment.
5.6
Expenses
. The Companies shall reimburse CIT for CITs legal fees and expenses
incurred in connection with the preparation, negotiation, execution and delivery of this Amendment
and all other agreements and documents contemplated hereby.
8
5.7
Waiver of Jury Trial
. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH
COMPANY AND CIT WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR
COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS AMENDMENT, THE FINANCING
AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO.
[signatures continued on next page]
9
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered
by their duly authorized officers to be effective on the day and year first above written.
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CCI:
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CROWN CRAFTS, INC.
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By:
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/s/ Amy Vidrine Samson
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Amy Vidrine Samson
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Vice President and CFO
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WEAVERS:
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CHURCHILL WEAVERS, INC.
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By:
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/s/ Amy Vidrine Samson
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Amy Vidrine Samson
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Vice President and CFO
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HAMCO:
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HAMCO, INC.
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By:
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/s/ Amy Vidrine Samson
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Amy Vidrine Samson
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Vice President and CFO
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CCIP:
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CROWN CRAFTS INFANT PRODUCTS, INC.
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By:
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/s/ Amy Vidrine Samson
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Amy Vidrine Samson
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Vice President and CFO
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First
Amendment to Crown Crafts Financing Agreement
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CIT:
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THE CIT GROUP/COMMERCIAL SERVICES, INC.
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By:
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/s/ V. R. Wells
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Title:
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AVP
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First
Amendment to Crown Crafts Financing Agreement
EXHIBIT A
PROMISSORY NOTE
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$5,000,000
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November 5, 2007
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FOR VALUE RECEIVED, the undersigned, CROWN CRAFTS, INC., a Delaware corporation
(
CCI
), CHURCHILL WEAVERS, INC., a Kentucky corporation (
Weavers
), HAMCO, INC.,
a Louisiana corporation (
Hamco
), and CROWN CRAFTS INFANT PRODUCTS, INC., a Delaware
corporation (
CCIP
; together with CCI, Weavers and Hamco, the
Companies
and each
a
Company
), promises to pay to the order of THE CIT GROUP/COMMERCIAL SERVICES, INC., a
New York corporation (
CIT
), at its office located at 301 South Tryon Street, Charlotte,
North Carolina 28282, in lawful money of the United States of America and in immediately available
funds, the principal amount of Five Million and No/100 Dollars ($5,000,000), in twenty-four (24)
equal principal installments of $208,333.33. The first such installment shall be due and payable
on December 1, 2007 and subsequent installments (including the final installment) shall be due and
payable on the first day of each month thereafter until this Note is paid in full.
The Companies further agree to pay interest at said office, in like money, on the unpaid
principal amount owing hereunder from time to time from the date hereof on the dates and at the
rates specified in
Section 8
of the Financing Agreement, dated as of July 11, 2006, among
the Companies and CIT (the
Financing Agreement
). Capitalized terms used in this Note and
defined in the Financing Agreement shall have the meanings given to such terms in the Financing
Agreement unless otherwise specifically defined herein.
This Note is the Promissory Note referred to in the Financing Agreement, evidences the Term
Loan made to the Companies thereunder, and is subject to, and entitled to, all provisions and
benefits thereof, including optional and mandatory prepayment, in whole or in part, as provided
therein.
Notwithstanding any other provision of this Note to the contrary, upon the occurrence of any
Event of Default specified in the Financing Agreement, or upon termination of the Financing
Agreement for any reason, all amounts then remaining unpaid on this Note may become, or be declared
to be, at the sole election of CIT, immediately due and payable as provided in the Financing
Agreement.
[signatures appear on next page]
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CCI:
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CROWN CRAFTS, INC.
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By:
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/s/ Amy Vidrine Samson
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Amy Vidrine Samson
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Vice President and CFO
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WEAVERS:
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CHURCHILL WEAVERS, INC.
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By:
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/s/ Amy Vidrine Samson
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Amy Vidrine Samson
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Vice President and CFO
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HAMCO:
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HAMCO, INC.
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By:
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/s/ Amy Vidrine Samson
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Amy Vidrine Samson
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Vice President and CFO
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CCIP:
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CROWN CRAFTS INFANT PRODUCTS, INC.
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By:
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/s/ Amy Vidrine Samson
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Amy Vidrine Samson
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Vice President and CFO
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Exhibit 10.5
COMMONWEALTH OF KENTUCKY
COUNTY OF MADISON
FIRST AMENDMENT TO MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS
AND SECURITY AGREEMENT
(Cross-reference to Mortgage, Assignment of Leases and Rents
and Security Agreement recorded in Book M1118, Page 58)
THIS FIRST AMENDMENT TO MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
(Amendment), executed as of the 5th day of November, 2007, by and between CHURCHILL WEAVERS, INC.
(Mortgagor), a Kentucky corporation, with an office located at 916 South Burnside Avenue,
Gonzales, Louisiana 70737; and THE CIT GROUP/COMMERCIAL SERVICES, INC. (Lender), a New York
corporation, with an office located at Two Wachovia Center, Suite 2500, 301 South Tryon Street,
Charlotte, Mecklenburg County, North Carolina 28282;
WITNESSETH:
WHEREAS, the Mortgagor executed and delivered to the Lender a certain Mortgage, Assignment of
Leases and Rents and Security Agreement, dated July 11, 2006, which was recorded July 12, 2006, in
Book M1118, Page 58, County Clerk of Madison County, Kentucky (such Mortgage, Assignment of Leases
and Rents and Security Agreement, as amended, modified, restated or supplemented from time to time,
being hereinafter called the Mortgage), encumbering certain real property owned by the Mortgagor
and located in Madison County, Kentucky, as more particularly described in
Exhibit A
attached hereto and incorporated herein by reference;
WHEREAS, the Mortgage secures all of the loans, advances, indebtedness, obligations and
liabilities now or hereafter owing by the Mortgagor, Crown Crafts, Inc., a Delaware corporation
(CCI), Crown Crafts Infant Products, Inc., a Delaware corporation (CCIP), and Hamco, Inc., a
Louisiana corporation (Hamco; together with Mortgagor, CCI and CCIP, the Borrowers and each a
Borrower), to the Lender under that certain Financing Agreement, dated July 11, 2006 (such
Financing Agreement, as it may hereafter be amended from time to time, being hereinafter called the
Financing Agreement);
WHEREAS, the Borrowers and the Lender have entered into a certain First Amendment to the
Financing Agreement, dated on or about the date hereof, pursuant to which, among other things, the
Lender has agreed to rely upon Section 1.15 of the Mortgage relating to future advances to
Borrowers to make a new term loan to the Borrowers in the amount of $5,000,000 and increase the
maximum amount of revolving loans that can be outstanding at any one time
under the Financing Agreement from $22,000,000 to $26,000,000 and extend the maturity date of
the revolving loans; and
WHEREAS, the parties hereto desire to enter into this Amendment in order to make conforming
amendments to the Mortgage as herein set forth;
NOW THEREFORE, for and in consideration of the premises, the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are hereby expressly
acknowledged, the parties hereto do hereby agree as follows:
1.
Definitions
. Unless otherwise defined in this Amendment, all terms defined in the
Mortgage shall have the same meanings herein.
2.
Amendments to Mortgage
. The parties intend for the additional indebtedness
extended by the Lender to the Borrowers and described in Section 2.1 below to be covered by Section
1.15 of the Mortgage relating to future advances. The Mortgage is hereby amended as follows:
2.1 Paragraph (a) on page 3 of the Mortgage is amended in its entirety to read as follows:
(a) All loans, advances, indebtedness, obligations and liabilities now or
from time to time hereafter owing by Mortgagor, Crown Crafts, Inc., a Delaware
corporation (CCI), Crown Crafts Infant Products, Inc., a Delaware corporation
(CCIP) and Hamco, Inc., a Louisiana corporation (Hamco; together with
Mortgagor, CCI and CCIP, the Borrowers and each a Borrower), to Lender under
that certain Financing Agreement, dated of even date herewith (such Financing
Agreement and the First Amendment thereto dated November 5, 2007, as it may
hereafter be amended from time to time, being hereinafter called the Financing
Agreement, capitalized terms used but not otherwise defined herein having the same
meaning given therein), or under any agreement, instrument or document executed or
delivered to Lender in respect of the Financing Agreement or the transactions
contemplated thereby, pursuant to which Lender has agreed to make a total credit
facility of $31,000,000 available to the Borrowers, including, without limitation:
(i) A term loan to the Borrowers in the principal amount of $5,000,000
evidenced by the Borrowers $5,000,000 Promissory Note (the Note), dated
of even date with the First Amendment to the Financing Agreement and which
Note by this reference is incorporated herein and made a part hereof, which
Note has a maturity date of November 1, 2009; and
(ii) A $26,000,000 revolving line of credit pursuant to which
revolving loans may be made, repaid and readvanced in accordance with and
evidenced by the Financing Agreement up to an aggregate principal amount of
such revolving loans outstanding at any one time in the sum of
2
$26,000,000, which revolving loans have a maturity date of July 11,
2010.
2.2 The first full paragraph on page 4 of the Mortgage beginning with the words The
Financing Agreement is amended in its entirety to read as follows:
The Financing Agreement, this Mortgage, the Note and all other instruments,
agreements, documents and guaranty agreements executed in connection with the
Financing Agreement or the transactions contemplated thereby are hereinafter
collectively called the Loan Documents.
2.3 Section 1.15 of the Mortgage is amended by deleting therefrom the words and figure
Twenty-Two Million Dollars ($22,000,000) and by substituting in lieu thereof the words and
figure Thirty-One Million Dollars ($31,000,000).
2.4 A new Section 1.16 is added to the Mortgage which shall read as follows:
1.16
Line of Credit Portion
. The Obligations secured hereby are, in
part, a line of credit (as described in KRS Section 382.385) and the total amount
secured hereby may decrease or increase from time to time, but the maximum
principal amount of credit which may be extended under the line of credit portion
of the Obligations and which may be outstanding at any time or times under the line
of credit portion of the Obligations is Twenty-Six Million Dollars
($26,000,000.00).
3.
References to Financing Agreement
. All references in the Mortgage to the
Financing Agreement shall hereafter mean and refer to the Financing Agreement as modified by the
First Amendment thereto.
4.
References to Mortgage
. All references in the Mortgage to the Mortgage shall
hereafter mean and refer to the Mortgage as modified by this Amendment.
5.
Effect of Amendment
. Except as expressly herein amended, the Mortgage, and each
and every term and provision thereof, shall remain in full force and effect, enforceable in
accordance with its terms.
6.
Controlling Law; Parties
. Nothing contained herein shall in any way constitute a
novation of the Obligations of the Mortgage, or impair any of the rights, powers or remedies of
Lender in respect of the Obligations or under the Mortgage. This Amendment shall be construed,
interpreted, enforced and governed by and in accordance with the laws of the State of Kentucky.
7.
Execution in Counterparts
. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all of which when taken together
shall constitute one and the same instrument.
3
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be duly executed
by duly authorized corporate officers on the day and year first above written.
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MORTGAGOR:
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CHURCHILL WEAVERS, INC.
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By:
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/s/ E. Randall Chestnut
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Title:
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President & CEO
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LENDER:
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THE CIT GROUP/COMMERCIAL SERVICES, INC.
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By:
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/s/ V. R. Wells
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Title:
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AVP
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4
ACKNOWLEDGMENTS
I, the undersigned authority, a Notary Public in and for said County, in said state, hereby
certify that
, the
of Churchill Weavers, Inc., who is personally
known to me to be the same person whose name is signed to the foregoing instrument, acknowledged
before me on this day that, being informed of the contents of the instrument, he, in his capacity
as such
and with full authority, executed the same voluntarily for and as the act of
said corporation on the day the same bears date.
Given under my hand this the ___day of November, 2007.
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Notary Public
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My Commission Expires:
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Resident of
County
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I, the undersigned authority, a Notary Public in and for said County, in said state, hereby
certify that
, the
of The CIT Group/Commercial Services, Inc.,
who is personally known to me to be the same person whose name is signed to the foregoing
instrument, acknowledged before me on this day that, being informed of the contents of the
instrument, he, in his capacity as such
and with full authority, executed the same
voluntarily for and as the act of said corporation on the day the same bears date.
Given under my hand this the ___day of November, 2007.
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Notary Public
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My Commission Expires:
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Resident of
County
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5
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PREPARED BY AND WHEN RECORDED RETURN TO:
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HUNTON & WILLIAMS LLP
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BY:
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JEREMY M. DEESE, ESQ.
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Bank of America Plaza, Suite 3500
101 South Tryon Street
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Charlotte, North Carolina 28280
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Telephone: (704) 378-4700
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6
EXHIBIT A
Churchill Weavers, 100 Churchill Drive, Berea, Madison County, Kentucky 40403
A certain tract of land located on the south side of Lorraine Court, approximately 420 feet east of
Estill Street in Berea, Madison Co., Kentucky, and being bound by survey (job no. 5592) made
November 22, 1995, by Charles E. Black, a Licensed Land Surveyor (L.S. 670), and shown as Tract 4A
on a certain plat which is recorded in Plat Book 13, page 65, in the office of the Madison County
Clerk, Richmond, Kentucky, to which reference is made for a more complete description, and said
property being more particularly described as follows:
TRACT 4A
:
Beginning at an existing pipe in the south right of way line of Lorraine Court and west corner to
lot 9 of Lorraine Court Subdivision; thence leaving said right of way line with the line of lot 9
S41º 19 32E 151.82 feet to an existing bolt in a
1
/
2
pipe; thence continuing with lot 9 for a
portion of and lot 11 for the remainder of N53º 32 00 E 100.01 feet to a steel pin at the common
corner of lots 11 and 13; thence leaving the line of lot 11 on a new line dividing the lands of
Tract 4 S51º 02 37 E 266.00 feet to an existing steel pin & cap in the line of the Berea Country
Club; thence continuing with the lines of the Berea Country Club two (2) calls: S39º 12 22 E
325.21 feet to an existing steel pin; thence, S45º 55 37 W 157.78 feet to an existing
3
/
4
pipe &
cap in the line of lot 8 of Churchill Acres Subdivision (Robert Nunnery); thence leaving the lines
of the Berea Country Club with the line of lot 8 for a portion of, lot 7 (John S. Cooke) for a
portion of, lot 6 (J. Randolph Osborne) for a portion of and lot 5 (London Peoples) for the
remainder of four (4) calls: N44º 17 09 W 142.99 feet to an existing
3
/
4
pipe; thence, S45º 20
15 W 123.61 feet to an existing steel pin & cap; thence, N49º 16 36 W 238.40 feet to an existing
1
1
/
2
pipe; thence, N49º 16 36 W 227.37 feet to an existing 1
1
/
2
pipe and common corner to Tract 5;
thence continuing with the line of Tract 5 N24º 09 10 W 25.39 feet to an existing steel pin & cap
and corner to Lot 1 of Lorraine Court Subdivision; thence continuing with lot 1 N54º 06 54 E
63.00 feet to an existing 6 bolt and common corner to lot 1 & 3; thence continuing with lot 1 N41º
22 15 W 140.30 feet to an existing steel pin & cap in the south right of way line of Lorraine
Court; thence continuing with said right of way line N48º 51 06 E 150.21 feet to an existing pipe
and point of beginning and containing 4.44 acres.
Being a portion of the property conveyed to Churchill Weavers, Inc. by David C. Churchill and
Eleanor F. Churchill, husband and wife, pursuant to that certain Deed dated June 12, 1952, recorded
in Deed Book 152, Page 335, of the real estate records of Madison County Clerks office.
THERE IS EXCEPTED AND EXCLUDED from the above-described property, the following conveyance from
Churchill Weavers, Inc., a Kentucky corporation, to Richard Bellando and Lila Bellando, by deed
dated March 26, 2007, of record in Deed Book 619, Page 431, in the Madison County Clerks Office,
said exclusion being more particularly described as follows, to wit:
A certain tract of land located on the south side of Lorraine Court approximately 420.00 from the
intersection of Lorraine Court and Forest Street and being bound by a Class A Survey
A-1
prepared by Central Kentucky Land Surveying, Inc., Jay Webb, LS 3505, and further described as
follows:
Beginning at a set steel pin (1/2 rebar, 18 long with yellow plastic cap stamped CKLS WEBB LS
3505) in the south right of way line of Lorraine Court (20.00 from existing centerline) and in
the line of Lot 3, Lorraine Court Subdivision, Plat Book 1, Page 18, said pin being located, N 48°
0412 E 30.00 from a found steel pin with no cap comer to Lot 3, Lorraine Court Subdivision,
Plat Book 1, Page · 18, and Deborah R. Whatley, Deed Book 442, Page 63, Lot 1, Lorraine Court
Subdivision, Plat Book 1, Page 18; thence continuing with the right of way line of Lorraine Court,
N 48° 04 12 E 80.00 to a set steel pin (1/2 rebar, 18 long with yellow plastic cap stamped
CKLS WEBB LS 3505) in the south right of way line of Lorraine Court and in the line of Lot 7,
Lorraine Court Subdivision, Plat Book 1, Page 18; thence leaving the south right of line of
Lorraine Court on new lines dividing the lands of Churchill Weavers, Deed Book 152, Page 335, Lot
3, 5 & 7, Plat Book 1, Page 18, S 42° 11 39 E 66.01 to a set steel pin (1/2 rebar, 18 long
with yellow plastic cap stamped CKLS WEBB LS 3505); thence S 04° 47 32 E 42.52 to a set steel
pin (1/2 rebar, 18 long with yellow plastic cap stamped CKLS WEBB LS 3505); thence S 47° 58 23
W 54.47 to a set steel pin (1/2 rebar, 18 long with yellow plastic cap stamped CKLS WEBB LS
3505); thence N 42° 01 37 W 100.00 to the point of beginning, hereby designated as Lot 1, 0.017
Acres (7572 Sq. Ft.); and
For further detail see plat prepared by Central Kentucky Land Surveying, Inc., dated 3/14/07, of
record in Plat Cabinet 24, Slide 106, in the Madison County Clerks Office.
A-2