EXHIBIT 10.35.1
AMENDMENT #1 TO THE
EXCLUSIVE DISTRIBUTION AGREEMENT
THIS AMENDMENT (the "AMENDMENT") is entered into and effective as of
the 22nd day of June, 2004 (the "AMENDMENT DATE"), by and between Federated
Merchandising Group ("FMG"), an unincorporated division of Federated Department
Stores, Inc., a Delaware corporation ("FEDERATED"), and Private Brands, Inc., a
California corporation ("PB").
WHEREAS, FMG and PB entered into an Exclusive Distribution Agreement on
the 1st day of April, 2003 (the "DISTRIBUTION AGREEMENT"); and
WHEREAS, FMG and PB desire to amend certain terms of the Distribution
Agreement as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
set forth herein, the receipt and sufficiency of which are hereby acknowledged
by each party, FMG and PG agree to amend the Distribution Agreement as follows:
1. All capitalized terms not defined herein shall have the meaning
given to them in the Distribution Agreement.
2. Section 5.1 of the Distribution Agreement is hereby amended and
restated as of the Amendment Date to read in its entirety as follows:
"5.1 ANNUAL MINIMUM PURCHASES. In order to preserve its rights under this
Agreement, including its rights to exclusivity as set forth in Section
2.2 and its right of first refusal as set forth in Section 2.3, FMG
shall order, during each Contract Year of the Term, Merchandise with
the minimum values (based on the purchase price payable for such
Merchandise) set forth below (the "ANNUAL MINIMUM PURCHASE
REQUIREMENTS"):
Contract Contract Contact Contract Contract Year 5
Year 1 Year 2 Year 3 Year 4 through Year 10
----------- ----------- ----------- ----------- ---------------
$25 million $25 million $40 million $68 million $90 million
The Annual Minimum Purchase Requirements for each Contract Year of the
first Renewal Term shall be equal to the average of the total amounts
of Ordered Merchandise during each of Contract Years six through ten of
the Initial Term, provided that in no event shall the amount used in
any Contract Year to calculate the Annual Minimum Purchase Requirements
for the first Renewal Term be less than $90 million. Furthermore, the
Annual Minimum Purchase Requirements for each Contract Year of the
first Renewal Term shall not exceed $108 million. Similarly, the Annual
Minimum Purchase Requirements for each successive Renewal Term shall be
equal to the average of the total amounts paid by FMG for Ordered
Merchandise during each of Contract Years six through ten of the
previous Renewal Term, provided that in no event shall the amount used
in any Contract Year to calculate the Annual Minimum Purchase
Requirements
for the successive Renewal Term be less than $90 million. Furthermore,
the Annual Minimum Purchase Requirements for each Contract Year of the
second Renewal Term shall not exceed 120% of the amount for the last
Renewal Term.
Any order placed by FMG and cancelled prior to the cancellation date
specified in the applicable purchase order shall reduce the amount
ordered by FMG for the period during which the order was placed. No
such reduction will be effected if FMG cancels an order after the
specified cancellation date."
3. Section 5.3 of the Agreement shall hereafter specifically reference
Section 5.1 and the Annual Minimum Purchases as set forth in this Amendment #1.
4. Except as expressly set forth herein, all of the terms and
conditions of the Distribution Agreement shall remain in full force and effect.
All references in the Distribution Agreement to "Agreement" shall mean and be a
reference to such document as and to the extent it is amended and supplemented
by this Amendment, including all exhibits, schedules and other agreements
entered into and/or delivered in connection with this Amendment.
5. This Amendment may be executed in any number of counterparts, each
of which is an original and all of which taken together constitute one
instrument. Any Party may execute this Amendment by executing any such
counterpart. This Amendment will be governed by and construed in accordance with
the laws of the State of New York without regard to its conflict of laws
principles.
IN WITNESS WHEREOF, the parties hereto have executed this Exclusive
Distribution Agreement or caused the same to be executed by a duly authorized
person as of the date set forth above.
FEDERATED MERCHANDISING GROUP, PRIVATE BRANDS, INC.,
A division of Federated Department a California corporation
Stores, Inc.
By: /S/ ILLEGIBLE By: /S/ XXXXX XXXX
---------------------------- --------------------------------
Name: Name: Xxxxx Xxxx
---------------------------- Title: President
Title:
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