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Exhibit 10.8
Mr. Scott Eynon
D.I.Y. Home Warehouse, Inc.
5811 Canal Road, Suite 180 August 4, 2000
Cleveland, Ohio 44125
Dear Scott:
Upon execution by D.I.Y. Home Warehouse, Inc., having a principle place
of business located at 5811 Canal Road, Valley View, Ohio 44125 ("Merchant"),
this letter shall serve as the agreement (the "Agreement") between Merchant and
Schottenstein Bernstein Capital Group, LLC having a principle place of business
located at 1800 Moler Road, Columbus, Ohio 43207 (the "Agent") for Agent to act
as Merchant's sole and exclusive agent to sell all of the merchandise (the
"Merchandise") in Merchant's stores listed on Schedule A attached (collectively,
the "Stores" or individually a "Store") by means of a "Store Closing," and or
"Total Liquidation," sale (the "Sale"). In consideration of the mutual promises
and covenants contained herein and other good and valuable consideration,
Merchant and Agent agree as follows:
1. AGENCY. Merchant appoints Agent its exclusive agent for the purpose of
conducting the Sale of the Merchandise located at the Stores. Agent shall be
responsible, with Merchant's assistance, for securing any required licenses and
permits and complying with any "going-out-of-business" laws, rules, ordinances
and regulations. Merchant shall pay any fees and expenses incurred in connection
therewith and Agent will post any bonds required in connection with such
licenses and permits.
2. INVENTORY. As soon as practicable after Merchant's acceptance of this
Agreement, Merchant shall cause to be taken a "retail dollar" and or SKU
physical inventory of the Merchandise at the Stores (the "Inventory Count"). The
date that the Inventory Count is taken in each Store shall be referred to as to
each Store as the "Inventory Date". The Inventory Count shall be taken by RGIS
or another independent inventory service mutually designated by Merchant and
Agent (the "Inventory Service") the cost of which shall be shared equally by
Merchant and Agent. Each Store
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shall be closed during the Inventory Count and during the Inventory Count,
neither Merchant nor Agent shall enter such Store without each having a
representative present, except in the case of an emergency. Merchant and Agent,
will provide one or more representative at the Store during the Inventory Count.
The Inventory Count shall be taken on the basis of the lowest ticketed price of
each item of Merchandise except for (i) out of season inventory which shall be
valued at fifty (50%) percent of the lowest ticketed price and (ii) damaged,
display and clearance Merchandise price for which Merchant and Agent shall agree
upon a price. Merchant shall remove from the Sale any item of damaged,
clearance, or display Merchandise for which a price cannot be agreed upon as
well as Merchandise as to which Merchant and Agent cannot agree upon the
seasonality. Notwithstanding any of the above, the reduction in the Retail
Value, resulting from Merchant and Agent's pricing of damaged, display and
clearance Merchandise, shall not exceed Fifty Thousand Dollars ($50,000) per
Store.
3. RETAIL VALUE. The term "Retail Value" herein shall mean the aggregate of the
item values of the respective items of all the Merchandise. Merchandise shall
include all goods owned by Merchant and located at the Stores on the Inventory
Date except: (i) goods which Merchant shall have reasonably shown to belong to
sublessees, licensees or concessionaires of Merchant or to have been placed in
the Stores on consignment; and (ii) furniture, fixtures, equipment and
improvements to realty located in the Stores. The ticketed price of any item of
Merchandise shall not include any sales or gross receipts taxes. If any item of
Merchandise has more than one ticket, the lower retail price shall prevail
unless Merchant establishes that such Merchandise was inadvertently priced
incorrectly. Merchandise arriving at the Stores following the Start Date ("On
Order Merchandise"), shall be valued at the lowest ticketed price less the
discount then prevailing in the Stores.
4. SALE TERM. The Sale shall start no later than August 31, 2000 (the "Start
Date"), and shall end no later than the close of business at each Store,
approximately eight weeks thereafter, unless extended by agreement of the
parties (the "End Date"). Agent may terminate the Sale prior to the End Date at
any Store in its reasonable discretion. At the conclusion of the Sale, Agent
agrees to leave the Stores in "broom clean" condition, with all Merchandise
(regardless of the condition) being
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removed by Agent, except for removal of furniture, fixtures, equipment and
remaining Supplies (as defined in Section 10 hereof) and to leave the Stores in
the same condition as on the Start Date, ordinary wear and tear excepted.
5. GUARANTEED PAYMENT. Agent guarantees that Merchant shall receive an amount
equal to forty-nine and one-half percent (49.5%) of the Retail Value (the
"Guaranteed Payment") of the Merchandise. In the event that the aggregate value
of all the Merchandise shall be less than Five Million Seven Hundred Thousand
Dollars ($5,700,000), the Merchant will transfer to the Stores' inventory of a
mix and quality to be agreed upon so that the inventory level is equal to or
greater than $5,700,000.
In addition to the Guaranteed Payment, Merchant will be entitled to
sixty percent (60%) of the Net Profit of the Sale. For purposes of this
Agreement, Net Profit of the Sale is the gross proceeds of the sale after
payment of the Guaranteed Payment, Expenses of Sale and payment to Agent of an
amount equal to one percent (1%) of the Retail Value.
Merchant shall retain all amounts collected during the Sale, as well as
any insurance proceeds resulting from the loss of any Merchandise subject to
this Agreement (the "Proceeds"), out of which it shall pay Expenses of Sale, as
set forth below, and satisfy the Guaranteed Payment. After satisfaction of the
Guaranteed Payment and payment of Expenses of Sale, and subject to the sharing
of the Net Profit of the Sale set forth above, Agent shall be entitled to
receive its share of the Proceeds as its commission herein. As security for the
Guaranteed Payment and Expenses of Sale, Agent will deliver to Merchant an
irrevocable Letter of Credit, in a form attached hereto as Schedule B from Wells
Fargo Bank in the amount of $2,115,000 having an expiration date of not earlier
than November 30, 2000. Reductions in the Letter of Credit amount will be
permitted as appropriate. In the event, following the End Date, that Proceeds
from the Sale are insufficient to satisfy the Guaranteed Amount and Expenses of
Sale, Merchant shall be entitled to draw down upon the Letter of Credit for the
amount of the deficiency.
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6. SALE CONDUCT. Agent shall conduct the Sale in the name of Merchant in full
and complete compliance with applicable laws, rules, or ordinances in the manner
in which Agent in its discretion reasonably deems fit, including, but not
limited to, advertising, pricing of Merchandise, number and type of personnel,
Store hours, Store maintenance and security. Agent may advertise the Sale as a
Store Closing, or Total Liquidation or similar type sale in accordance with
applicable law and applicable leasehold agreements. Notwithstanding the
Guaranteed Payment, Agent acknowledges that Merchant will after the End Date
have a significant number of stores in Ohio which will continue to operate under
Merchant's name. As a result, Agent will conduct the Sale using its best efforts
and in such a manner as to minimize any bad publicity or loss of goodwill
arising from the conduct of the Sale. Agent may use Merchant's employees to the
extent Agent deems feasible, and Agent may select and schedule the number and
type of Merchant's employees required for the Sale, however, Merchant's
employees shall at all times remain employees of Merchant. On and after the
Start Date, Merchant shall pay, as an Expense of Sale, as hereinafter defined,
the gross wage payroll paid to Merchant's employees used in the Stores by the
Agent during the Sale plus (a) the related payroll taxes (including FICA and
Unemployment), (b) Worker's Compensation and (c) health care insurance benefits
(subsections (a), (b) and (c) collectively, the "Benefits") not in excess of
nineteen percent (19%) of said gross payroll (the "Fringe Benefit Cap").
Any amounts in excess of the Fringe Benefit Cap shall be at Merchant's Expense,
as hereinafter defined.
Merchant and Agent acknowledge and agree, that (i) nothing herein nor
any of Agent's actions taken in respect hereto shall be deemed to constitute an
assumption by Agent of any of Merchant's obligations relating to any of
Merchant's employees including, without limitation, vacation, pension,
withdrawal, severance pay, vacation pay, sick leave or pay, maternity leave or
pay, Worker Adjustment Retraining Act ("WARN") claims (if any) and other
termination type claims and obligations; and (ii) Merchant hereby indemnifies
Agent in respect to any claims asserted by any of Merchant's employees, except
as to claims arising out of the negligence or wrongful act or omission of Agent,
and Merchant is solely and specifically responsible for all of Merchant's
obligations under any collective bargaining agreements and any purported oral
service contracts.
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7. EXPENSES OF SALE. Merchant shall collect all Proceeds out of which shall be
paid all "Expenses of Sale." In the event that Proceeds are not sufficient to
pay such Expenses of Sale, Merchant shall be entitled to draw down upon the
Letter of Credit, as set forth in Paragraph 5, for the amount of the deficiency
after the End Date. Expenses of Sale shall be (i) the actual gross wage payroll
paid to Merchant's employees used in the Stores by the Agent during the Sale
plus the cost of the Benefits for such employees not to exceed the Fringe
Benefit Cap; (ii) advertising expense; (iii) signage for the Sale; (iv) security
in the Stores; (v) bank card fees and charge backs; (vi) telephone charges for
the Stores in excess of base charges; (vii) Agent's supervision expenses,
including supervisor bonuses not to exceed thirty-five percent (35%) of
supervisor's salary; (viii) any other expenses directly attributable to the Sale
authorized by Agent and (ix) occupancy costs on a per diem per Store basis as
per attached Schedule C. Agent shall bill Merchant weekly for any Expenses of
Sale paid by Agent which shall be promptly paid from Proceeds collected by
Merchant.
8. MERCHANT'S EXPENSES. During the Sale, Merchant shall be responsible for
payment of the following items none of which shall be deemed an Expense of Sale:
(i) all occupancy costs not included in Schedule C; (ii) any Benefits in excess
of the Fringe Benefit Cap; (iii) all other employee benefits, including but not
limited to union dues, termination pay, pension benefits, severance pay,
vacation pay, sick leave or pay, maternity leave or pay and WARN claims (if
any); (iv) major maintenance; and (v) costs not directly attributable to the
Sale.
9. TAXES. Merchant shall collect all sales, excise and gross receipts taxes (and
not income taxes) (collectively the "Sales Taxes") payable to any taxing
authority having jurisdiction, which taxes shall be added to the sales price and
be paid by the customer at the time Merchandise is purchased. Merchant shall
indemnify and hold Agent harmless from and against any and all costs (including,
but not limited to, reasonable attorneys' fees), assessments, fines or penalties
which Agent may incur as a direct or indirect consequence of the failure by
Merchant to pay Sales Taxes to the proper taxing authorities and/or the failure
by Merchant to promptly file with taxing authorities
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any and all returns, reports and other documents required by applicable law to
be filed or delivered to such taxing authorities.
10. SUPPLIES. Agent shall have the right to use in connection with the Sale,
without any charge, all signs and promotional materials, furniture, equipment,
fixtures and supplies, including, but not limited to, bags, boxes, twine, paper
and similar sales materials ("Supplies"), located at the Stores on the Start
Date. Agent shall have no obligation to account to Merchant for any of the
Supplies used during the Sale, but all Supplies remaining in the Stores on the
End Date shall be left on the premises and remain Merchant's property. Should
additional Supplies be required in the Stores during the Sale, Merchant agrees
to promptly provide such additional Supplies to Agent, if available at
Merchant's cost plus shipping costs, such cost to be an Expense of Sale.
Merchant covenants and warrants that it has not and will not remove any Supplies
from the Stores in contemplation of this Agreement.
11. CREDIT CARDS, GIFT CERTIFICATES AND RETURNS. All sales shall be for cash or
upon bank credit cards (excluding private label cards). During the Sale, all
bank credit card sales shall be through Merchant's bank credit card system. All
bank card fees including charge backs in connection with the Sale shall be an
Expense of Sale. Agent will be responsible for any reserves required by
Merchant's bank credit card provider. For fourteen (14) days following the Start
Date, Agent shall accept customer returns of first quality goods purchased prior
to the Start Date. Items accepted for return shall be added to Merchandise for
the purpose of calculating Retail Value, but shall not reduce Proceeds. All
sales shall be advertised, "FINAL," and all sales receipts shall be marked
"FINAL," by Agent. Agent shall accept Merchant's gift certificates during the
Sale. Gift Certificates shall be treated as cash and the value thereof added to
Proceeds. Agent shall, on behalf of Merchant, offer refunds to customers with
goods on layaway. The amounts refunded to layaway customers shall not reduce
Proceeds.
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12. MERCHANT'S WARRANTIES. Merchant hereby warrants and represents:
a. Merchant is a corporation, duly and validly existing and in good
standing under the laws of the State of Ohio. Merchant is and during the Sale
will be authorized and duly qualified as a corporation to do business and is in
good standing in the jurisdiction in which the Stores are located.
b. (i) This Agreement and all other documents executed by Merchant in
accordance with this Agreement are the valid and binding obligations of Merchant
enforceable in accordance with their terms; (ii) Merchant has taken all
necessary corporate action required to authorize the execution, performance and
delivery of this Agreement and the related documents; (iii) no court order or
decree of any federal, state or local government authority, or other action
known to Merchant, is in effect which will or may prevent or impair consummation
of the transactions contemplated by this Agreement; and (iv) the consent of any
person or entity, including any landlord, is not required with respect to the
transaction contemplated herein.
c. Except for the lien of National City Commercial Finance, Merchant
owns and will own at the Start Date and during the Sale good and marketable
title to all of the Merchandise (together with the proceeds and accounts
receivable arising therefrom), free and clear of all liens, mortgages, pledges,
charges, encumbrances, equities or claims whatsoever. Agent shall be entitled to
retain all proceeds, subject to section 5, free and clear of all liens,
mortgages, pledges, charges, encumbrances, equities or claims whatsoever.
d. Except for the balancing of inventory between the Stores, Merchant
shall not ship goods into or out of the Stores without Agent's consent, which
consent will not be unreasonably withheld, nor raise any prices of the
Merchandise in contemplation of the Sale. The mix of Merchandise in the Stores
shall be comparable to that found in the Merchant's ongoing stores.
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e. No actions or proceedings have been instituted against Merchant or
have been threatened, preventing or which may prevent the consummation of the
transactions contemplated by this Agreement. Merchant is reasonably current on
all accounts payable, due and owing to parties whose cooperation is necessary
for operation of the Sale, including but not limited to landlords, newspapers
and utilities.
f. No notice of terminable default under the leases, licenses or
subleases relating to the Stores have been noticed thereunder, and such leases
do not prohibit the transactions under this Agreement or of the Sale
contemplated herein.
g. Merchant represents and warrants that it will not prior to or during
the Sale grant any lien or encumbrance on the Merchandise or the Proceeds.
h. There is no outstanding order, judgment, injunction award or decree
of any court, governmental or regulatory body or arbitration tribunal by which
the Merchant or the Merchandise is bound which would materially interfere with
the transactions herein, and as of the date of execution herein there is no
action, suit, claim, legal, administrative or arbitral proceedings (whether or
not the defense thereof or liabilities in respect thereof are covered by
insurance) against the Merchant or the Merchandise which would, if determined
adversely to the Merchant, be likely to have a material adverse effect upon the
transactions contemplated hereby, nor to the best of Merchant's knowledge are
there any facts which are likely to give rise to any such action, suit, claim or
legal, administrative or arbitral proceeding or investigation.
i. The Retail Value of the Merchandise shall be not less than Five
Million Seven Hundred Thousand Dollars ($5,700,000).
j. Agent shall be permitted to pass on all applicable manufacturers
warranties to customers.
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k. Merchant represents and warrants that it has not raised any prices
in contemplation of the Inventory Count and that all pricing, including pricing
of On-Order merchandise and merchandise from the distribution center will be
done in accordance with Merchant's historic practices.
l. The Stores will have been operated up through the Start Date in a
manner consistent with Merchant's ongoing stores.
m. No point of sale activity shall have occurred outside the ordinary
course of business.
n. Merchandise offered for Sale by Agent with a discount of no lower
than ten percent (10%) shall be lower in price then the same Merchandise
advertised in Merchant's circulars scheduled to run on August 13. In the event
of any such discrepancy herein, Agent shall be entitled to offer customers the
lower of the two prices. Agent's sole remedy shall be a credit from Merchant for
the amount of the discrepancy.
13. AGENT'S WARRANTIES. Agent hereby warrants and represents:
a. Agent is a limited liability corporation, duly and validly existing
and in good standing under the laws of the State of Delaware. Agent is, and
during the Sale will be, authorized and duly qualified to do business in each
jurisdiction where the failure to so qualify would have a material adverse
effect on Agent's ability to perform hereunder.
b. (i) This Agreement and all other documents executed by Agent in
accordance with this Agreement are the valid and binding obligations of Agent
enforceable in accordance with their terms; (ii) Agent has taken all necessary
action required to authorize the execution, performance and delivery of this
Agreement and the related documents; (iii) no court order or decree of any
federal, state or local government authority, or other action known to Agent, is
in effect which will or may prevent or impair consummation of the transactions
contemplated by this Agreement; and
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(iv) the consent of any person or entity, is not required with respect to the
transactions contemplated herein.
c. There is no outstanding order, judgment, injunction award or decree
of any court, governmental or regulatory body or arbitration tribunal by which
the Agent is bound which would materially interfere with the transactions
herein, and there shall be no action, suit, claim, legal, administrative or
arbitral proceedings (whether or not the defense thereof or liabilities in
respect thereof are covered by insurance) against the Agent which would, if
determined adversely to the Agent, be likely to have a material adverse effect
upon the transactions contemplated hereby, nor are there any facts which are
likely to give rise to any such action, suit, claim or legal, administrative or
arbitral proceeding or investigation.
14. NON COMPETE. During the Sale, neither Merchant nor any affiliate of Merchant
shall run a store closing, liquidation or similar sale in competition with the
Sale at any store trading under the D.I.Y. Home Warehouse name within the
advertising area of the Stores without the prior written approval of Agent.
15. INSURANCE. a. Merchant at its expense shall continue until the End Date, in
such amounts as Merchant currently has in effect, all of Merchant's liability
insurance policies, including but not limited to, comprehensive public liability
policies covering injuries to persons and property in or in connection with
Merchant's operation of the Stores and, from and after the acceptance by
Merchant of this Agreement, shall cause Agent to be named as additional insured,
as its interests may appear, with respect to all such policies. On or before the
Start Date, Merchant shall deliver to Agent certificates evidencing such
insurance policies, setting forth the duration thereof and the naming of Agent
as an additional insured, as its interests may appear, in accordance with the
provisions hereof, all in form reasonably satisfactory to Agent. Merchant shall
be responsible for the payment of all deductibles, retentions or self-insured
amounts under such policies except in the event liability arises by reason of
the negligence or wrongful act or omission of Agent or Agent's independent
contractors.
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b. Merchant at its expense shall provide fire, theft and extended
coverage casualty insurance on the Merchandise in a total amount at least equal
to the retail value thereof. From and after the Start Date, said coverage will
contain a loss payable clause in favor of Merchant's lender and Agent, as their
interests may appear. In the event of a loss to the Merchandise included in the
Inventory Count occurring on or after the Start Date, the proceeds of such
insurance attributable to the Merchandise shall be paid to Agent and such
proceeds shall be included as part of the Proceeds. On or before the Start Date,
Merchant shall deliver to Agent certificates evidencing such insurance policies,
setting forth the duration thereof and the naming of Agent as a loss payee in
accordance with the provisions hereof, all in form reasonably acceptable to
Agent. Merchant shall be responsible for the payment of all deductibles or
self-insured amounts under such policies except in the event liability arises by
reason of the negligence or wrongful act or omission of Agent or Agent's
independent contractors.
c. Merchant shall at all times during the Sale maintain in full force
and effect Worker's Compensation Insurance in compliance with all statutory
requirements.
d. During the performance and length of this Agreement, Agent will
maintain workers compensation, commercial general liability and automobile
liability insurance and will name Merchant as an additional insured on all such
policies.
16. PEACEFUL POSSESSION. Merchant agrees during the Sale to grant and provide
Agent peaceful and quiet possession of the Stores and to take no action relating
to the Stores which would disturb such possession, including, without
limitation, any action to modify or terminate any existing ADT or similar
security system or cash register maintenance agreements or remove any of the
furniture, fixtures or equipment from the Stores. Merchant agrees to maintain in
operation at the expense of Merchant for the benefit of Agent (i) the point of
sale equipment in the Stores and (ii) the management information systems.
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17. INDEMNIFICATION. Agent and Merchant each agree to indemnify and defend and
hold harmless the other from any and all demands, claims, actions or causes of
action, assessments, losses, damages, liabilities, costs and expenses,
including, without limitation, interest, penalties and reasonable attorneys'
fees, costs and expenses, asserted against, resulting to or imposed upon
Merchant or Agent, directly or indirectly, by reason of or resulting from
either's (i) material breach or failure to comply with any of the agreements,
covenants, representations or warranties contained in this Agreement, or (ii)
any negligent or wrongful act or omission of either or its employees.
18. DEFAULT. a. For the purpose of this Agreement, an "Event of Default" shall
be deemed to have occurred:
(1) upon the failure by Merchant or Agent to perform promptly and fully
any material obligation or covenant hereunder or any material obligation or
covenant in any document delivered pursuant hereto or any collateral agreement
to this Agreement after having received five (5) days' prior written notice,
except in the case of a nonmonetary default which is incapable of being cured
within such notice period and diligently proceeds to cure said default and (a)
the party in default has taken all steps necessary to commence to cure such
default within such notice period and (b) such failure to cure, in the case of a
default by Merchant, will not adversely affect, in any material way, Agent's
ability to conduct the Sale in the manner contemplated herein;
(2) if any of the warranties or representations made by Merchant or
Agent herein proves to be untrue or false in a material way; or
(3) if any breach of this Agreement by Merchant results in the Agent
being unable to conduct or complete the Sale at any Store as contemplated
herein.
b. In the event of an interruption of the Sale and/or occurrence of an
Event of Default resulting from any act or omission of Merchant which prevents
Agent from conducting or completing the Sale at any Store as provided by this
Agreement, Agent may, at its
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option, either (i) proceed with the Sale at the Store location(s) affected; or
(ii) require Merchant, at Merchant's expense, to move the Merchandise to another
reasonably proximate Store designated by Agent; or (iii) notify Merchant as to
the termination of the Sale as to the particular Store location, in which event,
Agent shall be made whole and (i) Agent shall be reimbursed for all its out of
pocket expenses referable to such Store; and (ii) Merchant shall be entitled to
retain all Proceeds at such Store prior to the interruption or Event of Default
as well as any remaining Merchandise. Merchant acknowledges that Agent would be
irreparably injured in the event of any failure by Merchant to promptly and
fully perform any obligation hereunder if such failure directly or indirectly
interferes with the conduct by Agent of the Sale, and hereby consents, in the
event of any such failure or in the event that any such failure is threatened or
appears imminent, to the entry of an injunction specifically enforcing the terms
of this Agreement.
c. No right or remedy granted in or pursuant to this Agreement shall be
exclusive of any other right or remedy so granted or otherwise available. Every
such right or remedy shall be cumulative and shall be in addition to every other
right or remedy so granted or existing at law or in equity or by statute, or
created, granted or existing pursuant to any agreement to which Agent and/or
Merchant is or may hereafter become a party.
19. JURISDICTION. This Agreement shall be governed and construed in accordance
with the laws of the State of Ohio without regard to the conflicts of laws
principles thereof.
20. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties with respect to these transactions and supersedes and cancels all prior
agreements including, but not limited to all proposals, letters of intent or
representations, written or oral, with respect thereto.
21. MODIFICATIONS. This Agreement may not be modified except in a writing
executed by each of the parties.
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22. ASSIGNMENT. Except as specifically provided in this Section, or upon written
consent of the parties hereto, this Agreement shall not inure to the benefit of,
or, shall not be assignable to, any person or entity other than Merchant and
Agent. All of the terms and provisions of this Agreement shall be binding upon,
inure to the benefit of, and be enforceable by the successors in interest of the
respective parties hereto.
23. NOTICES. All notices under this Agreement shall be sent by hand, by
recognized overnight courier service or by certified mail, return receipt
requested to: (a) Merchant at the address listed on the first page hereof, to
the attention of Mr. Clifford Reynolds, President, with a copy to Mr. Harold O.
Maxfield, Jr., Cavitch, Familo, Durkin and Frutkin Co. L.P.A, 14th Floor, East
Ohio Building, Cleveland, Ohio 44114; (b) Agent, at the address listed on the
first page hereof to the attention of Scott Bernstein, Esq. All notices
delivered hereunder will be effective upon receipt.
24. CONFIDENTIAL NATURE OF TRANSACTION. The parties agree to keep the existence
of this transaction confidential until Merchant announces the closing of the
Stores to its employees. Agent agrees to notify all employees and/or agents that
have or will have knowledge of this transaction of the confidential nature of
this transaction. The parties agree that they will jointly approve any news
release(s) regarding this transaction. Agent acknowledges that Merchant may
suffer significant damages if the existence of this transaction becomes known to
customers and/or employees.
25. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument. Such execution may be by facsimile. Any
party signing via facsimile shall forward an original hard copy of such
signature to the other party, but the failure to send said original signature
shall not affect the enforceability of this Agreement against such party, the
parties hereto agreeing that a facsimile signature may be treated as an original
signature hereunder.
Please acknowledge your acceptance hereof by signing a copy and returning it to
us.
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Very truly yours,
SCHOTTENSTEIN BERNSTEIN CAPITAL GROUP, LLC
By: /s/ Scott Bernstein
--------------------------------------
Its: Principal
-------------------------------------
ACCEPTED THIS 7TH DAY OF AUGUST, 2000.
D.I.Y. HOME WAREHOUSE, INC.
By: /s/ R. Scott Eynon
-------------------------------------
Printed Name: R. SCOTT EYNON
---------------------------
Title: V. P. OPERATIONS
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Schedules
Schedule A - Stores
Schedule B - Form of Letter of Credit
Schedule C - Per Diem Occupancy
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TALLMADE STORE
--------------
1040 East Tallmadge
Akron, Ohio
NORTH RANDALL STORE
-------------------
4601 Northfield Road
North Randall, Ohio
SCHEDULE A
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LETTER OF CREDIT
GUARANTEED PAYMENT
IRREVOCABLE LETTER OF CREDIT
Beneficiary Applicant
----------- ---------
Schottenstein Bernstein Capital Group, LLC
1800 Moler Road
Columbus, Ohio 43207
Amount
------
USD $2,115,000.00 (U.S. Dollars)
Expiry: November 30, 2000
Dear Sir(s):
We hereby issue in your favor our Irrevocable Letter of Credit in the
amount of Two Million One Hundred Fifteen Thousand and 00/100 Dollars
($2,115,000.00) U.S. Dollars.
We hereby irrevocably authorize you to draw on us, in an aggregate
amount not to exceed the amount of this Letter of Credit, by your draft or
drafts, payable at sight, drawn on Wells Fargo Bank bearing the clause: "Drawn
under Wells Fargo Bank Letter of Credit No. _____" and accompanied by your
certificate appropriately completed and signed by you in the form of the
attached Annex A.
Special Conditions:
l. Wells Fargo Bank is not responsible for any calculations
confirming the proper amount of the draft pursuant to the
attached Annex A, Certificate for Drawing.
2. This original Letter of Credit my be returned with any drawing
hereunder which results in the full or partial payment of the
amount of this Letter of Credit.
3. Upon delivery to us of a Reduction Certificate, the amount of
this Letter of Credit shall be reduced by the amount set forth
in such Reduction Certificate.
SCHEDULE B, PAGE 1 OF 3
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CERTIFICATE FOR DRAWING
The undersigned, being the President of, hereby certifies with
reference to Wells Fargo, Letter of Credit No. ________ that:
l. The amount of the sight draft which accompanies this drawing
certificate is $___________________.
2. The undersigned has determined that the Proceeds are
insufficient to satisfy the Guaranteed Payment, Expenses of
Sale, as those terms are defined in the Agreement, dated
_______________ (the "Agreement"), by and between D.I.Y. Home
Warehouse, Inc. and Schottenstein Bernstein Capital Group,
LLC.
3. Merchant is not in material default under the terms of the
Agreement.
4. _____________ three (3) business days notice to the Agent of
its intent to submit the sight draft which accompanies this
certificate.
5. Capitalized terms used herein but not defined shall have the
meanings set forth in the agreement.
IN WITNESS WHEREOF, __________d this Certificate for Drawing to be
executed and delivered as of the ______ day of ____________, 2000.
----------------------------------------
By:
--------------------------------
President
Sworn to before me this
_____ day of ______________, 2000.
----------------------------------
Notary Public
SCHEDULE B, PAGE 3 OF 3
<PAGE> 20
DIY HOME WAREHOUSE
SCHEDULE C
PER DIEM SCHEDULE
<TABLE>
<CAPTION>
6 Months ended 6/00
2 11
DAILY TOTAL N.Randall N.Akron
----- ----- --------- -------
<S> <C> <C> <C> <C>
OCCUPANCY RENT 1,403.84 255,498 255,498 --
OCCUPANCY MORTGAGE INTEREST -- -- -- --
OCCUPANCY DISPOSAL 26.09 4,749 2,313 2,436
OCCUPANCY RE TAX 455.10 82,829 48,491 34,338
OCCUPANCY UTILITIES 679.93 123,748 58,999 64,749
----------
2,564.97
</TABLE>
