EXHIBIT 10.2
XXXXXX XXXXX COMPANY
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxx, Xxxxx 00000
December 27, 2001
Elan-Polo, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Gentlemen:
Reference is made to that certain Asset Purchase Agreement dated November
29, 2001 (the "Asset Purchase Agreement") by and between Xxxxxx Xxxxx Company
("Xxxxxx Xxxxx") and Elan-Polo, Inc. ("Elan-Polo"). The parties hereby agree to
amend the Asset Purchase Agreement as follows:
I. L/C Delivery.
The parties agree that notwithstanding anything in the Asset Purchase
Agreement to the contrary, Elan-Polo may deliver the L/C required by Section
2.2(a)(iv)(C) within five (5) days after the Closing Date and that the failure
to do so shall be an event of default under the Note.
II. Collateral Assignment of X.X. Xxxxx Marks.
Notwithstanding anything in the Asset Purchase Agreement to the contrary,
Elan-Polo acknowledges and agrees that: (i) the Acquisition Agreement shall not
be assigned to Elan-Polo, (ii) the Acquired Trademarks related to the X.X. Xxxxx
brands shall be assigned to Elan-Polo subject to the Collateral Assignment dated
January 11, 2001 between X.X. Xxxxx Son Company Limited Partnership and Xxxxxx
Xxxxx and any liens, security interests or encumbrances related thereto (the
"X.X. Xxxxx Collateral Assignment") and (iii) the Collateral Assignment to be
granted by Elan-Polo in such X.X. Xxxxx trademarks and related good will under
Section 2.2(b)(iv)(F) of the Asset Purchase Agreement shall be subject to the
X.X. Xxxxx Collateral Assignment. Notwithstanding the foregoing, Elan-Polo
agrees to assume, perform and discharge all of Xxxxxx Xxxxx'x obligations and
liabilities under the Acquisition Agreement and that all such obligations and
liabilities are and shall continue to be "Assumed Liabilities" under the Asset
Purchase Agreement.
III. Section 3.4 "Title to Acquired Assets" is hereby modified by:
deleting the phrase "Intangible Acquired Assets and the Acquired
Intellectual Property" in their entirety in both the first and second sentences
of Section 3.4.
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IV. Exhibit A "Defined Terms" is hereby modified by:
deleting it in its entirety and replacing it with Exhibit A attached
hereto.
V. Exhibit E "Assignment of Trademark" is hereby modified by:
deleting the reference to "attached hereto as Exhibit E" in Section
2.1(b)(i)(B) and replacing it with:
"and substance mutually agreeable to both Xxxxxx Xxxxx and Elan-Polo."
VI. Miscellaneous.
All references in the Asset Purchase Agreement to Exhibit E shall
correspond to the Assignment of Trademarks executed by Xxxxxx Xxxxx at Closing.
All other provisions of the Asset Purchase Agreement shall remain in full
force and effect. This letter and the amendment made hereby shall be governed by
New York law.
To signify your agreement to the foregoing, please sign in the space that
has been provided below for Elan-Polo's signature.
XXXXXX XXXXX COMPANY
By:
------------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman and CEO
Accepted and Agreed:
ELAN-POLO, INC.
By:
-----------------------------------
Name:
Title:
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EXHIBIT A
DEFINED TERMS
Defined terms used in the Asset Purchase Agreement and the sections they
are defined in are as follows:
Defined Term Section
------------ -------
Acquired Brands Recitals
Acquired Assets 1.1(a)
Acquired Inventory 1.1(a)(ii)
Acquired Inventory Purchase Price 2.2(a)(i)
Acquired Trademarks 1.1(a)(iii)
Assigned Contracts 1.1(a)(i)
Assumed Liabilities 1.2
Authorizations 3.8
Xxxx of Sale 2.1(b)(i)(C)
Closing 2.1(a)
Closing Date 2.1(a)
Contract 3.3
Contract Assignment 2.1(b)(i)(A)
Conveyance Agreements 2.1(b)(i)(D)
Xxxxxx Xxxxx Preamble
Xxxxxx Xxxxx Brand Annual Minimum Payment 2.2(b)(i)
Xxxxxx Xxxxx Brand Payment 2.2(b)(i)
Xxxxxx Xxxxx Closing Documents 2.1(b)(i)
Xxxxxx Xxxxx Indemnitees 8.2
Xxxxxx Xxxxx'x Knowledge 3.6
Xxxxxx Xxxxx Services Agreement 7.1
Xxxxxx Xxxxx Warehouse 1.1(a)(ii)(D)
Deficiency Notice 2.2(b)(iv)(C)
Deloitte & Touche 2.2(a)(v)
Elan-Polo Preamble
Elan-Polo Closing Documents 2.1(b)(ii)
Elan-Polo Indemnitees 8.3
Elan-Polo's Knowledge 4.4
Encumbrances 1.1(a)
Estimated Acquired Inventory Purchase Price 2.2(a)(iv)
Final Acquired Inventory Purchase Price 2.2(a)(iv)
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Defined Term Section
------------ -------
Governmental Entity 3.3
Indemnified Party 8.4(a)
Indemnifying Party 8.4(a)
Trademark Assignments 2.1(b)(i)(B)
Inventory Cost 2.2(a)(ii)
X.X. Xxxxx Acquisition Agreement 1.1(a)(i)
X.X. Xxxxx Brand Annual Minimum Payment 2.2(b)(ii)
X.X. Xxxxx Brand Payment 2.2(b)(ii)
L/C 2.2(a)(iv)(C)
L/C Bank 2.2(a)(iv)(C)
Losses 8.2
Net Sales 2.2(b)(iii)
Note 2.2(a)(vi)(B)
Note Maturity Date 2.2(a)(iv)(B)
Preliminary Inventory Certificate 2.2(a)(iv)
Purchase Price 2.2
Retained Assets 1.1(b)
Retained Liabilities 1.2(b)
Trademarks 1.1(a)(iii)
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