EXHIBIT 10.1
APPAREL PURCHASE AGREEMENT
This Apparel Purchase Agreement is entered into as of the 14th day of
November, 2002 by and between ▇▇▇▇▇▇ Traders, Inc. ("Purchaser") and Bergamo
Acquisition Corp. ("Seller").
RECITALS;
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A. Seller is a manufacturer and distributor of apparel; and
B. Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, certain apparel as described herein;
NOW, THEREFORE, in consideration of the foregoing and of the following
mutual promises, the parties agree as follows:
1. PURCHASE OF APPAREL. Subject to the terms and conditions of this
Agreement, Purchaser agrees to purchase those items of apparel identified on
Purchase Orders 1940, 1936, 1943, 1938, 1946,1963, 1964, 1965, and 1966,
previously delivered by Purchaser to Seller (the "Purchase Orders"). Prior to
manufacture, Purchaser shall approve the specific styles and quantities (the
"Merchandise")
2. INSPECTION; TIMING; DELIVERIES.
(a) The parties contemplate that the Merchandise will be
manufactured on behalf of Seller by factories under contract with Seller. Seller
shall furnish Purchaser with letters from the contract manufacturers estimating
actual dates of delivery ex factory for inspection as provided herein. Purchaser
shall cause its agents, from time to time, to inspect the merchandise as it is
produced, it being contemplated that such inspection will be an ongoing process.
Once the Merchandise for a shipment has been so inspected, it shall be deemed
accepted by Buyer, unless Buyer objects in writing delivered to Seller within 24
hours from the inspection ("Acceptance"). Upon Acceptance, Purchaser shall
become obligated to purchase and pay for the Merchandise, on the terms and
conditions in this Agreement.
(b) The parties contemplate that the Merchandise covered by
Invoices 1940 and 1936 will be manufactured and completed, and placed in two
standard shipping containers by December 31, 2002, at either Mombasa or Dar Es
Salaam, as specified by Seller (the "First Shipment"); the Merchandise covered
by Invoices 1943, 1938, 1946 and 1963 will be completed, and placed in four
standard shipping containers, by January 31, 2003, at either Mombasa or Dar Es
Salaam, as specified by Seller (the "Second Shipment"); and the Merchandise
covered by Invoices 1964, 1965 and 1966 will be completed, placed in six
standard shipping containers, by February 28, 2003, at either Mombasa or Dar Es
Salaam, as specified by Seller (the "Third Shipment").
(b) Upon Acceptance, Seller shall arrange for shipping the
Merchandise to the Port of Los Angeles, at Seller's expense.
3. PAYMENT; DOCUMENTATION; LETTERS OF CREDIT. (a) Upon Acceptance,
Seller shall deliver to Buyer an onboard ▇▇▇▇ of lading, an invoice covering the
Merchandise, and packing slips. Purchaser's agent shall deliver to Seller an
inspection certificate certifying that such agent has inspected the Merchandise
on behalf of Buyer, and that the Merchandise conforms to the descriptions in the
relevant invoices as well as any specifications agreed to by the Parties.
Delivery of such inspection certificate shall be deemed conclusive on the
parties as to the conformance of the Merchandise with this agreement and the
relevant Invoices, and Buyer shall not be entitled to assert any offsets,
claims, deductions or chargebacks as to the Merchandise so covered.
(b) Purchaser shall establish three irrevocable, transferable
letters of credit, in the respective amounts of $377,780 (the "First LC"),
$277,047 (the "Second LC") and $192,000 (the "Third LC"), with a recognized
"money center" U.S. bank, in favor of General Electric Capital Corporation
("GECC"), for the benefit of Seller. Upon actual delivery of the First Shipment
to the Port of Los Angeles, Purchaser shall authorize GECC to draw the First LC.
Upon actual delivery of the Second Shipment to the Port of Los Angeles,
Purchaser shall authorize GECC to draw the Second LC. Upon actual delivery of
the Third Shipment to the Port of Los Angeles, Purchaser shall authorize GECC to
draw the Third LC. If any shipment does not arrive at the Port of Los Angeles
within 65 days of delivery of the ▇▇▇▇ of lading covering the shipment, then
Seller shall be subject to a penalty equal to 10% of the cost of the shipment,
unless the delay was the fault of the Purchaser.
4. COSTS; FINAL DELIVERY. Seller shall bear all costs expenses related
to shipment of the Merchandise, including freight charges, ocean freight
clearance, and insurance. Purchaser shall pay all interest and origination costs
relating to the letters of credit from the date of Acceptance to the date of
delivery at the Port of Los Angeles. Upon arrival at the Port of Los Angeles,
the Merchandise shall be transferred to a ground common carrier specified by
Purchaser, and Seller shall provide a truck ▇▇▇▇ of lading with respect to the
Merchandise.
5. DISCLAIMER OF WARRANTIES. Except as specifically provided here,
Seller makes no representation or warranty of any other kind, express or
implied, with respect to the Merchandise, whether as to merchantability or
fitness for particular purpose.
6. GENERAL
(a) This Agreement, along with any other documents or agreements
expressly referred to herein, constitutes the entire agreement between the
parties with respect to the subject matter hereof. This Agreement supersedes all
previous agreements between the parties with respect to the subject matter
hereof. There are no agreements, representations or warranties between or among
the parties other than those set forth in this Agreement or in the documents or
agreements referred to herein.
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(b) If any term or provision of this Agreement is determined to be
illegal or unenforceable, such illegal or unenforceable provision shall be
stricken from this Agreement, and shall not affect the legality or
unenforceability of this Agreement.
(c) The terms of this Agreement have been negotiated by the
parties hereto and all language herein shall be deemed to be the language
mutually selected by the parties to express their intent. This Agreement shall
be construed without respect to any presumption requiring construction against
the party causing the instrument to be drafted.
(d) The obligations of either party to perform under this
Agreement shall be excused if such failure to perform or any delay is caused by
acts of God, civil commotion, riots, war, labor dispute, fire, explosion, flood,
compliance with or other action taken to carry out the intent or purpose of any
law or regulation, or any other cause reasonably beyond the control of the party
obligated to perform. Upon the occurrence of such an event, the duties and
obligations of the parties shall be suspended for the duration of the event
preventing proper performance under this Agreement, provided, however, that if
such suspension shall continue in excess of sixty days, the parties shall meet
and attempt to arrive at a mutually acceptable compromise within the spirit and
intent of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
Bergamo Acquisition Corporation
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ Traders, Inc.
By: /s/
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Confirming our Telephone conversation of today the first L/C for $377,780 will
be opened immediately. The Second L/C for $277,047 will be opened on the
confirmation that the cutting has begun on P.O. 1940 and 1936. The Third L/C for
$192,000 will be opened on confirmation that sewing has begun on P.O. 1940 and
1936.
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