FACTORING AGREEMENT
EXHIBIT 10.2
CIT Commercial Services
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
May 18,2006
The Fashion House, Inc.
0000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
0000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
We are pleased to confirm the terms and conditions that will govern our funds in use
accounting, non-borrowing, notification factoring arrangement with you (the “Agreement”).
1. SALE OF ACCOUNTS
You sell and assign to us, and we purchase as absolute owner, all accounts arising
from your sales of inventory or rendition of services, including those under any trade names,
through any divisions and through any selling agent (collectively, the “Accounts” and
individually, an “Account”).
2. CREDIT APPROVAL
2.1 Requests for credit approval for all of your orders must be submitted to our Credit
Department via computer by either: (a) On-Line Terminal Access, or (b) Electronic Batch
Transmission. If you are unable to submit orders via computer, then orders can be submitted
over the phone, by fax or in writing. All credit decisions by our Credit Department
(including
approvals, declines and holds) will be sent to you daily by a Credit Decisions Report, which
constitutes the official record of our credit decisions. Credit approvals will be effective
only if
shipment is made or services are rendered within thirty (30) days from the completion date
specified in our credit approval. Credit approval of any Account may be withdrawn by us any
time before delivery is made or services are rendered.
2.2 We assume the Credit Risk on each Account approved in the Credit Decision
Report. “Credit Risk” means the customer’s failure to pay the Account in full when due on its
longest maturity solely because of its financial inability to pay. If there is any change in
the
amount, terms, shipping date or delivery date for any shipment of goods or rendition of
services
(other than accepting returns and granting allowances as provided in section 8 below), you
must
submit a change of terms request to us, and, if such pertains to a Factor Risk Account, then
we
shall advise you of our decision either to retain the Credit Risk or to withdraw the credit
approval. Accounts on which we bear the Credit Risk are referred to collectively as “Factor
Risk
Accounts”, and individually as a “Factor Risk Account”. Accounts on which you bear some or all
of the risk as to credit are referred to collectively as “Client Risk Accounts”, and
individually as a
“Client Risk Account”.
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2.3 We shall have no liability to you or to any person, firm or entity for declining,
withholding or withdrawing credit approval on any order. If we decline to credit approve an order
and furnish to you any information regarding the credit standing of that customer, such information
is confidential and you agree not to reveal same to the customer, your sales agent or any third
party. You agree that we have no obligation to perform, in any respect, any contracts relating to
any Accounts.
3. INVOICING
You agree to place a notice (in form and content acceptable to us) on each invoice and
invoice equivalent that the Account is sold, assigned and payable only to us, and to take all
necessary steps so that payments and remittance information are directed to us. All invoices, or
their equivalents, will be promptly mailed or otherwise transmitted by you to your customers at
your expense. You will provide us with copies of all invoices (or the equivalent thereof if the
invoices were sent electronically), confirmation of the sale of the Accounts to us and proof of
shipment or delivery, all as we may reasonably request. If you fail to provide us with copies of
such invoices (or equivalents) or such proofs when requested by us, we will not bear any Credit
Risk as to those Accounts.
4. REPRESENTATIONS AND WARRANTIES
4.1 You represent and warrant that: each Account is based upon a bona fide sale
and delivery of inventory or rendition of services made by you in the ordinary course of
business; the inventory being sold and the Accounts created are your exclusive property and
are not, and will not be, subject to any lien, consignment arrangement, encumbrance or
security
interest other than in our favor; all amounts are due in United States Dollars; all original
invoices
bear notice of the sale and assignment to us; any taxes or fees relating to your Accounts or
inventory are solely your responsibility; and none of the Accounts factored with us hereunder
represent sales to any subsidiary, affiliate or parent company. You also warrant and represent
that: your customers have accepted the goods or services and owe and are obligated to pay
the full amounts stated in the invoices according to their terms, without dispute, claim,
offset,
defense, deduction, rejection, recoupment, counterclaim or contra account, other than as to
returns and allowances as provided in section 8 below (the foregoing being referred to in this
Agreement as “Customer Claims”).
4.2 You further represent and warrant that: your legal name is exactly as set forth on
the signature page of this Agreement, you are a duly organized and validly existing business
organization incorporated or registered in the state of Delaware, and are qualified to do
business in all states where required; the most recent financial statements provided by you to
us
accurately reflect your financial condition as of that date and there has been no material
adverse change in your financial condition since the date of those financial statements. You
agree to furnish us with such information concerning your business affairs and financial
condition as we may reasonably request from time to time, including financial statements as of
the end of each fiscal year.
4.3 You agree that you will promptly notify us of any change in your: name, state of
incorporation or registration, location of your chief executive office, place(s) of business,
and
legal or business structure. Further, you agree that you will promptly notify us of any change
in
control of the ownership of your business organization, and of significant lawsuits
or
proceedings against you.
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5. PURCHASE OF ACCOUNTS
We shall purchase the Accounts for the gross amount of the respective invoices, less:
factoring fees or charges, trade and cash discounts allowable to, or taken by, your customers,
credits, cash on account and allowances (“Purchase Price”). Our purchase of the Accounts will be
reflected on the Statement of Account (defined in section 10 below), which we shall render to you,
which will also reflect all credits and discounts made available to your customers.
6. ADVANCES
We do not expect to advance funds to you prior to the collection of the Accounts, but
we may do so at your request in our sole discretion, subject to such additional terms and
conditions as we may reasonably request. We have the right, at any time and from time to time, to
hold any reserves we deem reasonably necessary as security for the payment and performance of any
and all of your Obligations (defined in section 12 below). All amounts you owe us, including all
advances to you and any debit balance in your Client Position Account (defined in section 10
below), and any Obligations, are payable on demand and may be charged to your account at any time.
7. PAYMENT OF ACCOUNTS
7.1 All payments received by us on the Accounts will be promptly applied to your
account with us after crediting your customer’s account. The Purchase Price for Accounts with
respect to which such remittances have been received and applied by us during a week, less
any amounts due us, will be transferred and disbursed to you on Friday of the following week,
or
on the next business day thereafter, if said Friday is not a business day. No checks, drafts
or
other instruments received by us will constitute final payment of an Account unless and until
such items have actually been collected.
7.2 The amount of the Purchase Price of any Factor Risk Account which remains
unpaid will be deemed collected and will be credited to your account as of the earlier of the
following dates:
(a) the date of the Account’s longest maturity if a proceeding or petition is filed by or
against the customer under any state or federal bankruptcy or insolvency law, or if a receiver
or
trustee is appointed for the customer; or
(b) the last day of the third month following the Account’s longest maturity date if
such Account remains unpaid as of said date without the occurrence of any of the events
specified in clause (a) above.
If any Factor Risk Account credited to you was not paid for any reason other than Credit Risk, we
shall reverse the credit and charge your account accordingly, and such Account is then deemed to
be a Client Risk Account.
8. CUSTOMER CLAIMS AND CHARGE BACKS
8.1 You must notify us promptly of any matter affecting the value, enforceability or
collectibility of any Account and of all Customer Claims. You agree to promptly issue credit
memoranda or otherwise adjust the customer’s account upon accepting returns or granting
allowances. For full invoice credit memoranda, you agree to send duplicate copies thereof to us
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and to confirm their assignment to us. We shall cooperate with you in the adjustment of
Customer Claims, but we retain the right to adjust Customer Claims on Factor Risk Accounts directly
with customers, upon such terms as we in our sole discretion may deem advisable.
8.2 We may at any time charge back to your account the amount of: (a) any Factor
Risk Account which is not paid in full when due for any reason other than Credit Risk; (b) any
Factor Risk Account which is not paid in full when due because of an act of God, civil strife,
or
war; (c) anticipation (interest) deducted by a customer on any Account; (d) Customer Claims;
(e) any Client Risk Account which is not paid in full when due; and (f) any Account for which
there is a breach of any representation or warranty. A charge back does not constitute a
reassignment of an Account. We shall not bear the Credit Risk on any Account charged back to
you. We shall immediately charge any deduction taken by a customer to your account.
8.3 We may at any time charge to your account the amount of: (a) payments we
receive on Client Risk Accounts which we are required at any time to turnover or return
(including preference claims); (b) all remittance expenses (including incoming wire charges,
currency conversion fees and stop payment fees), other than stop payment fees on Factor Risk
Accounts; (c) expenses, collection agency fees and attorneys’ fees incurred by us in
collecting
or attempting to collect any Client Risk Account or any Obligation (defined in section 12
below);
and (d) our fees for handling collections on Client Risk Accounts which you have requested us
to process, as provided in the Guide (see section 18.2 below).
9. HANDLING AND COLLECTING ACCOUNTS; RETURNED GOODS
9.1 As owners of the Factor Risk Accounts, we have the right to: (a) bring suit, or
otherwise enforce collection, in your name or ours; (b) modify the terms of payment, (c)
settle,
compromise or release, in whole or in part, any amounts owing, and (d) issue credits in your
name or ours. To the extent applicable, you waive any and all claims and defenses based on
suretyship. If moneys are due and owing from a customer for both Factor Risk Accounts and
Client Risk Accounts, you agree that any payments or recoveries received on such Accounts
may be applied first to any Factor Risk Accounts. Once you have granted or issued a discount,
credit or allowance on any Account, you have no further interest therein. Any checks, cash,
notes or other documents or instruments, proceeds or property received with respect to the
Accounts must be held by you in trust for us, separate from your own property, and immediately
turned over to us with proper endorsements. We may endorse your name or ours on any such
check, draft, instrument or document.
9.2 As owners and assignees of the Accounts and all proceeds thereof, upon our
written notice, you will, at your expense, comply with our instructions relative to any and
all
returned, rejected, reclaimed or repossessed inventory (“Returned Goods”).
10. STATEMENT OF ACCOUNT
After the end of each month, we shall send you certain reports reflecting Accounts
purchased, advances made, if any, fees and charges and all other financial transactions between us
during that month (“Reports”). The Reports sent to you each month include a Statement of Account
reflecting transactions in three sections: Accounts Receivable, Client Position Account and Funds
In Use. The Reports shall be deemed correct and binding upon you and shall constitute an account
stated between us unless we receive your written statement of exceptions within thirty (30) days
after same are mailed to you.
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11. GRANT OF SECURITY INTEREST
11.1 You hereby assign and grant to us a continuing security interest in all of your right,
title and interest in and to all of your now existing and future (herein collectively the
“Collateral”): (a) accounts (including the Accounts), instruments, documents, chattel paper
(including electronic chattel paper), and any other obligations owing to you; (b) unpaid
seller’s rights (including rescission, repossession, replevin, reclamation and stoppage in
transit); (c) rights to any inventory represented by the foregoing, including Returned Goods;
(d) reserves and credit balances arising hereunder; (e) guarantees, collateral, supporting
obligations and letter of credit rights with respect to the foregoing; (f) insurance policies,
proceeds or rights relating to the foregoing; (g) general intangibles (including all payment
intangibles and all other rights to payment); (h) cash and non-cash proceeds of the foregoing;
and (h) Books and Records (defined in section 13 below) evidencing or pertaining to the
foregoing.
11.2 You agree to comply with all applicable laws to perfect our security interest in collateral
pledged to us hereunder, and to execute such documents as we may require to effectuate the
foregoing and to implement this Agreement. You irrevocably authorize us to file financing
statements, and all amendments and continuations with respect thereto, all in order to create,
perfect or maintain our security interest in the Collateral, and you hereby ratify and confirm
any and all financing statements, amendments and continuations with respect thereto heretofore
and hereafter filed by us pursuant to the foregoing authorization.
12. OBLIGATIONS SECURED
The security interest granted hereunder and any lien or security interest that we now or
hereafter have in any of your other assets, collateral or property, secure the payment and
performance of all of your now existing and future indebtedness and obligations to us, whether
absolute or contingent, whether arising under this Agreement or any other agreement or arrangement
between us, by operation of law or otherwise (“Obligations”). Obligations also includes ledger debt
(which means indebtedness for goods and services purchased by you from any party whose accounts
receivable are factored or financed by us), and indebtedness arising under any guaranty, credit
enhancement or other credit support granted by you in our favor. Any reserves or balances to your
credit and any other assets, collateral or property of yours in our possession constitutes security
for any and all Obligations.
13. BOOKS AND RECORDS AND EXAMINATIONS
13.1 You agree to maintain such Books and Records concerning the Accounts as we may
reasonably request and to reflect our ownership of the Accounts therein. “Books and
Records” means your accounting and financial records (whether paper, computer or
electronic), data, tapes, discs, or other media, and all programs, files, records and
procedure manuals relating thereto, wherever located.
13.2 Upon our reasonable request, you agree to make your Books and Records available to us
for examination and to permit us to make copies or extracts thereof. Also, you agree to
permit us to visit your premises during your business hours and to conduct such
examinations as we deem reasonably necessary. To cover our costs and expenses of any such
examinations, we shall charge you a fee for each day, or part thereof, during which such
examination is conducted, plus any out-of-pocket costs and expenses incurred by us, as
provided in the Guide (see section 18.2 below).
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14. INTEREST
14.1 Interest is charged on any adjustments under this Agreement and on any advances
that may be made under section 6 above, as of the last day of each month based on the daily debit
balances in your Funds In Use account for that month, at a rate equal to the greater of: (a) the
sum of 1% plus the JPMorgan Rate (defined below), or (b) 6% per annum. The JPMorgan Rate is the per
annum rate of interest publicly announced by JPMorgan Chase Bank (or its successor) in New York,
New York from time to time as its prime rate, and is not intended to be the lowest rate of interest
charged by JPMorgan Chase Bank to its borrowers. Any change in the rate of interest hereunder due
to a change in the JPMorgan Rate will take effect as of the first of the month following such
change in the JPMorgan Rate. All interest is calculated on a 360 day year.
14.2 If you, as a client of ours, purchase goods or services from another client of ours and your
payments on these invoices are not timely received, a late interest payment, at our then late
interest rate, will be charged to your account with us and shall be deemed an Obligation under
this Agreement.
14.3 In no event will interest charged hereunder exceed the highest lawful rate. In the event,
however, that we do receive interest in excess of the highest lawful rate, you agree that your
sole remedy would be to seek repayment of such excess, and you irrevocably waive any and all
other rights and remedies which may be available to you under law or in equity.
15. FACTORING FEES AND OTHER CHARGES
15.1 For our services hereunder, you will pay us a factoring fee or charge as set forth
below on the gross face amount of all Accounts factored with us, but in no event less than
$5.00 per invoice.
The factoring fee will be as follows:
(a) 1% on the gross face amount of all Accounts factored with us during each calendar
month on the first Ten Million Dollars ($10,000,000.00) of Accounts during any Contract
Year; and
15.2 0.9% on the gross face amount of all Accounts factored with us during each calendar
month on Accounts in excess of Ten Million Dollars ($10,000,000.00) during such Contract
Year.
As used herein the term “Contract Year” shall mean any twelve-month period commencing June 1, 2006
and each subsequent twelve-month period thereafter.
In addition, you will pay a fee of one-quarter of one percent (1/4 of 1%) of the gross face amount
of each Account for each thirty (30) day period or part thereof by which the longest terms of sale
applicable to such Account exceed sixty (60) days (whether as originally stated or as a result of a
change of terms requested by you or the customer). For Accounts arising from sales to customers
located outside the fifty states of the United States of America, you will pay us an additional
factoring fee of 1 % of the gross face amount of all such Accounts. All factoring fees or charges
are due and charged to your account upon our purchase of the underlying Account. Commencing June 1,
2006, if the actual factoring fees or charges paid to us by you during any quarter or part thereof
(“Period”) is less than $16,000.00 (“Minimum Factoring Fees”), we shall
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charge your account as of the end of such Period with an amount equal to the difference
between the actual factoring fees or charges paid during such Period and said Minimum Factoring
Fees.
15.3 You agree to pay all costs and expenses incurred by us in connection with or in any
way related to: (i) this Agreement or (ii) the preparation, execution, administration and
enforcement of this Agreement, including all reasonable fees and expenses attributable to
the services of our attorneys (whether in-house or outside), search fees and public record
filing fees. Furthermore, you agree to pay to us our fees (as more fully set forth in
the Guide, see section 18.2 below) including fees for: (a) special reports prepared by us
at your request; (b) wire transfers; (c) handling change of terms requests relating to
Accounts; and (d) your usage of our on-line computer services. Beginning on the first of
the month six months from the date hereof, you also agree to pay us our fees for: (i) each
new customer set-up on our customer accounts receivable data base and each new customer
relationship established for you; (ii) crediting your account with proceeds of
non-factored invoices received by us; and (iii) charge backs of invoices factored with us
that were paid directly to you. All such fees will be charged to your account when
incurred. We may change our fees from time to time upon notice to you; however, any
failure to give you such notice does not constitute a breach of this Agreement and does
not impair our ability to institute any such change.
15.4 Any tax or fee of any governmental authority imposed on or arising from any
transactions between us, any sales made by you, or any inventory relating to such sales is
your sole responsibility (other than income and franchise taxes imposed on us which are
not related to any specific transaction between us). If we are required to withhold or
pay any such tax or fee, or any interest or
penalties thereon, you hereby indemnify and hold us harmless therefor and we shall
charge your account with the full amount thereof.
15.5 In addition to the fees and charges under this Agreement, you will pay us, as of the
date hereof, a facility fee in the amount of $3,000.00 for the initial setup,
implementation of your account with us and for the use of our in-house legal department
and facilities in documenting this Agreement.
16. TERMINATION
16.1 You may terminate this Agreement only as of an Anniversary Date and then only by
giving us at least sixty (60) days prior written notice of termination. Upon any
termination of this Agreement, we shall be entitled to the unpaid portion of the Minimum
Factoring Fees, if any, for such Period or Periods for the remainder of the term of this
Agreement, as applicable, and as provided in section 15.1 above, as of the effective date
of termination. “Anniversary Date” means the last day of the month occurring two years
from the date hereof, and the same date in each year thereafter. Except as otherwise
provided, we may terminate this Agreement at any time by giving you at least sixty (60)
days prior written notice of termination. However, we may terminate this Agreement
immediately, without prior notice to you, upon the occurrence of an Event of Default
(defined in section 17.1 below).
16.2 This Agreement remains effective between us until terminated as herein
provided. Unless sooner demanded, all Obligations will become immediately due and payable upon any
termination of this Agreement.
16.3 All of our rights, liens and security interests hereunder continue and remain in full
force and effect after any termination of this Agreement and pending a final accounting,
we may
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withhold any balances in your account unless we are supplied with an indemnity satisfactory
to us to cover all Obligations. You agree to continue to assign accounts receivable to us and to
remit to us all collections on accounts receivable, until all Obligations have been paid in full or
we have been supplied with an indemnity satisfactory to us to cover all Obligations.
17. EVENTS OF DEFAULT AND REMEDIES UPON DEFAULT
17.1 It is an “Event of Default” under this Agreement if: (a) your business ceases or a
meeting of your creditors is called; (b) any bankruptcy, insolvency, arrangement, reorganization,
receivership or similar proceeding is commenced by or against you under any federal or state law;
(c) you breach any representation, warranty or covenant contained in this Agreement; (d) you fail
to pay any Obligation when due, or (e) any default shall have occurred under any other agreement or
arrangement between us.
17.2 After the occurrence of an Event of Default which is not waived by us, we may terminate
this Agreement without notice to you. We shall then have immediate access to any and all Books and
Records as may pertain to the Accounts, Returned Goods and any other collateral hereunder.
Furthermore, as may be necessary to administer and enforce our rights in the Accounts, Returned
Goods and any other collateral hereunder, or to facilitate the collection or realization thereof,
we have your permission to use (at your expense) your personnel, supplies, equipment, computers and
space, at your place of business or elsewhere.
17.3 After the occurrence of an Event of Default which is not waived by us, with respect to any
other property or collateral in which we have a security interest, we shall have all of the rights
and remedies of a secured party under Article 9 of the Uniform Commercial Code. If notice of
intended disposition of any such property or collateral is required by law, it is agreed that five
(5) days notice constitutes reasonable notice. The net cash proceeds resulting from the exercise
of any of the foregoing rights, after deducting all charges, costs and expenses (including
reasonable attorneys’ fees) will be applied by us to the payment or satisfaction of the
Obligations, whether due or to become due, in such order as we may elect. You remain liable to us
for any deficiencies. With respect to Factor Risk Accounts and Returned Goods relating thereto,
you hereby confirm that we are the owners thereof, and that our rights of ownership permit us to
deal with this property as owner and you confirm that you have no interest therein.
18. MISCELLANEOUS PROVISIONS
18.1 This Agreement, and all attendant documentation, as the same may be amended from
time to time, constitutes the entire agreement between us with regard to the subject matter hereof,
and supersedes any prior agreements or understandings. This Agreement can be changed only by a
writing signed by both of us. Our failure or delay in exercising any right hereunder will not
constitute a waiver thereof or bar us from exercising any of our rights at any time. The validity,
interpretation and enforcement of this Agreement is governed by the laws of the State of
California, excluding the conflict laws of such State.
18.2 The Client Service Guide, as supplemented and amended from time to time (the “Guide”) has
been furnished to you or is being furnished to you concurrently with the signing of this Agreement,
and by your signature below you acknowledge receipt thereof. The Guide provides information on
credit approval processes, accounting procedures and fees. The procedures for Electronic Batch
Transmission are covered in supplemental instructions to the Guide. From time to time, we may
provide you with amendments, additions, modifications, revisions or supplements to the Guide, which
will be operative for transactions between us. All
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information and exhibits contained in the Guide, on any screen accessed by you, and on any
print-outs, reports, statements or notices received by you are, and will be, our exclusive property
and are not to be disclosed to, or used by, anyone other than you, your employees or your
professional advisors, in whole or in part, unless we have consented in writing.
18.3 This Agreement binds and benefits each of us and our respective successors and assigns,
provided, however, that you may not assign this Agreement or your rights hereunder without our
prior written consent.
18.4 Section headings are for convenience only and are not controlling. The use of “including”
means “including without limitation”.
18.5 If any provision of this Agreement is contrary to, prohibited by, or deemed invalid under
applicable laws or regulations, such provision will be inapplicable and deemed omitted to such
extent, but the remainder will not be invalidated thereby and will be given effect so far as
possible.
19. JURY TRIAL WAIVER
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT, OR ANY OTHER
AGREEMENT OR TRANSACTION BETWEEN THE PARTIES HERETO. NOTWITHSTANDING THE PLACE OF EXECUTION HEREOF,
EACH PARTY HERETO AGREES THAT THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND
ALL RIGHTS HEREUNDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA.
The parties to this Agreement prefer that any dispute between or among them be resolved in
litigation subject to the above jury trial waiver. If, and only if, a pre-dispute jury trial waiver
of the type provided for herein is unenforceable in litigation to resolve any dispute, claim, cause
of action or controversy under this Agreement or any other document (each, a “Claim”) in the venue
where the Claim is being brought pursuant to the terms of this Agreement, then, upon the written
request of any party, such Claim, including any and all questions of law or fact relating thereto,
shall be determined exclusively by a judicial reference proceeding. Except as otherwise provided
herein, venue for any such reference proceeding shall be in the state or federal court in the
County or District where venue is appropriate under applicable law (the “Court”). The parties shall
select a single neutral referee, who shall be a retired state or federal judge. If the parties
cannot agree upon a referee within 30 days, the Court shall appoint the referee. The referee shall
report a statement of decision to the Court. Notwithstanding the foregoing, nothing in this
paragraph shall limit the right of any party at any time to exercise self-help remedies, foreclose
against collateral or obtain provisional remedies (including without limitation, requests for
temporary restraining orders, preliminary injunctions, writs of possession, writs of attachment,
appointment of a receiver, or any orders that a court may issue to preserve the status quo, to
prevent irreparable injury or to allow a party to enforce its liens and security interests). The
parties shall bear the fees and expenses of the referee equally unless the referee orders
otherwise. The referee also shall determine all issues relating to the applicability,
interpretation, and enforceability of this section. The parties acknowledge that any Claim
determined by reference pursuant to this section shall not be adjudicated by a jury
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If the foregoing is in accordance with your understanding, please so indicate by signing and
returning to us the original and one copy of this Agreement. This Agreement will take effect as of
the date set forth above but only after being accepted below by one of our officers in Los Angeles,
California, after which we shall forward a fully executed copy to you for your files.
| Very truly yours, | ||||||||
| THE CIT GROUP/COMMERCIAL SERVICES, INC. | ||||||||
| By: | /s/ Xxxxxx Xxx | |||||||
| Name: | Xxxxxx Xxx | |||||||
| Title: | Vice President and | |||||||
| Director of Business Development Asian Pacific | ||||||||
| Read and Agreed to: | ||||||||
| THE FASHION HOUSE, INC. | ||||||||
By:
|
/s/ Xxxxxxx XxXxxx | |||||||
Name:
|
Xxxxxxx XxXxxx | |||||||
Title:
|
CFO | |||||||
| Accepted at Los Angeles, California | ||||||||
| THE CIT GROUP/COMMERCIAL SERVICES, INC. | ||||||||
| By: | /s/ Xxxxx Xxxxx | |||||||
| Name: | Xxxxx Xxxxx | |||||||
| Title: | Vice President | |||||||
| Client Service Director | ||||||||
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