Exhibit 10(z)
CIT COMMERCIAL SERVICES T: 000 000-0000
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
CIT
October 1, 2002
Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xx.
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
AMENDED AND RESTATED FACTORING AGREEMENT
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Ladies and Gentlemen:
We are pleased to confirm the terms and conditions that will govern
our average due date accounting, notification factoring arrangement with
advances (the "Agreement"). This Agreement shall amend, replace and supersede in
its entirety the Factoring Agreements between us dated July 14, 1982 and dated
March 14, 2002 (with you as a debtor in possession), as supplemented and amended
(collectively, the "Factoring Agreements") and as further authorized and
approved in the Final Order Authorizing Xxxxxxxx Xxxxx, Inc. To Enter Into
Factoring Agreement And To Sell Their Accounts Receivable Pursuant To Factoring
Agreement Pursuant To 11 U.S. C. xx.xx. 105 and 363(b) (the "Order") and the
Order of Confirmation entered on September 20, 2002 (the "Confirmation Order").
This Agreement is intended to set forth the terms and provisions pursuant to
which we shall factor the sales created or arising on and after the date hereof.
This Agreement shall in no way be construed to, nor shall it affect, modify,
diminish or break the continuity of our ownership and/or security interest in,
as further set forth herein, all of your present and future accounts receivable,
as more fully described in said Factoring Agreements, the Order and the
Confirmation Order, which ownership and/or security interest is hereby ratified
and confirmed by this Agreement as provided above. The right and obligations of
the parties as provided in the Factoring Agreements are hereby restated,
acknowledged, assumed, memorialized and rolled into this 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 which you
in your discretion choose to factor with us, 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".
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 Accounts created are your exclusive property
and upon transfer pursuant to this Agreement 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").
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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, and, in any event, you will furnish to us:
(a) as soon as possible, but not later than ninety (90) days after
the close of each of your fiscal years, your financial statements
as of the end of such year, audited by Xxxxx Xxxxxxxx LLP or such
other firm of independent certified public accountants of
recognized standing, selected by you and acceptable to us;
(b) as soon as possible, but not later than forty-five (45) days
after the end of each month hereafter, your unaudited interim
financial statements as of the end of such period and of the
portion of your fiscal year then elapsed, certified by your
principal financial officer, prepared in accordance with
generally accepted accounting principles consistently applied,
and fairly presenting the financial position and results of your
operations for such period;
(c) at the same time provided to a lender or agent, copies of any
compliance certificates delivered to any other secured lender or
the agent of such; and
(d) any other reports or information reasonably required by us,
including, without limitation, such reports or information
bearing upon or related to the Accounts or the Inventory.
4.3 You agree that you will promptly notify us of any material change
in your: name, state of incorporation or registration, location of your chief
executive office, or 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 material law suits or
proceedings against you.
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 and allowances. 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
At your request, and in our sole discretion, we may advance funds to
you of up to ninety percent( 90%) of your Factor Risk Accounts, thereby creating
a funds in use balance. All such advances will be charged to your Cash Account
(defined in section 10 below). The funds in use balance is the aggregate balance
of your Regular Account and your Cash Account ("Funds In Use Balance"). The
funds in use balance is impacted by items affecting those accounts, such as
interest and fees charged to your Cash Account and customer payments and refunds
applied to your Regular Account. We have the right, at any time and from time to
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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 Cash Account, and any Obligations, are payable on demand and may
be charged to your account at any time.
7. PAYMENT OF ACCOUNTS
We shall calculate the Average Maturity Date of the invoices detailed
on each confirmatory schedule of assigned Accounts that we receive, which will
include four (4) additional business days for collection and clearance. We shall
also calculate the factor's discount on each confirmatory schedule of assigned
Accounts purchased by us hereunder at the rate set forth in section 14 below. We
shall debit your Cash Account with the amount of the factor's discount on the
gross sales less trade and cash discounts and less the factoring fee. Subject to
our right to hold any reserve as set forth above, we shall credit your Cash
Account (defined in section 10 below) as of the Average Maturity Date of such
Accounts with the Matured Assignment, consisting of the gross amount of each
invoice detailed in each such confirmatory schedule plus the factor's discount,
less trade and cash discounts reflected on the invoices to your customers,
whether or not taken ("Net Sales"). All Credits assigned will be immediately
charged to the Cash Account. At our option, we may send to you at any time and
without prior notice to you, any credit balance in such Cash Account left with
us past the Average Maturity Date. In the event that the Average Maturity Date
falls on a day that is not a business day, then the Net Sales shall be due and
payable to you on the next business day. A more detailed description of how the
Average Maturity Date and factor's discount are calculated and the specific
bookkeeping entries reflected on your Statement(s) of Account are contained in
the Guide (see section 18.2 below). 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.
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 and to confirm their
assignment to us. You may continue to do so until we have advised you that all
such credits or allowances on Factor Risk Accounts require our prior written
approval. 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 at a rate in excess of two per cent per
annum below the JPMorgan Rate (defined in section 14.1 below); (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. Any such Account
shall be charged back to your account as of the due date of the underlying
invoice. We shall immediately charge any deduction taken by a customer to your
account.
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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, set aside, xxxx with our
name and hold in trust for us, any and all returned, rejected, reclaimed or
repossessed inventory ("Returned Goods"). Further, upon such notice, you agree
promptly: to notify us of all Returned Goods and, at our request, either to
deliver same to us, or to pay us the invoice price thereof, or to sell the same
for our account.
10. STATEMENT OF ACCOUNT
After the end of each month, we shall send you certain reports
reflecting Accounts purchased, advances made, 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
a regular account ("Regular Account"), and a Statement of Account reflecting
transactions in a cash account ("Cash Account"). 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.
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 : (a) Accounts and all instruments, documents, chattel paper (including
electronic chattel paper), general intangibles (including payment intangibles
and all other rights to payment), 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 for the foregoing (including rights under any letters of credit
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or other credit enhancements in your favor); (f) insurance policies, proceeds or
rights relating to the foregoing; (g) federal, state and local income tax
refunds; (h) cash and non-cash proceeds of the foregoing; and (i) Books and
Records (defined in section 13 below) evidencing or pertaining to the foregoing,
in each case solely to the extent such property or proceeds relate to the
Accounts (collectively, the "Collateral").
11.2 You agree to comply with all applicable laws to perfect our
security interest in the 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).
14. INTEREST
14.1 Interest is charged as of the last day of each month based on
the average daily debit Funds In Use Balance for that month. Factor's discount
is computed on Net Sales. Interest and factor's discount are calculated at a
rate equal to the greater of: (a) the sum of one and one half percent (1.50%)
plus the JPMorgan Rate (defined below), or (b) six percent (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
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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 and
factor's discount are calculated on a 360 day year.
14.2 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 of one-half of one percent (.50%) of the gross face amount of all
Accounts factored with us, but in no event less than $5.00 per invoice. 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 as of the 15th day of that
month. You agree to factor with us a minimum of $10,000,000 in factored sales
(the "Minimum Volume") during each Contract Year (defined below). If you do not
factor with us the Minimum Volume with respect to each Contract Year or part
thereof, we shall be entitled to charge your account as of the end of such
Contract Year or part thereof with an amount equal to the difference between the
Minimum Volume multiplied by the Rate and the actual factoring fees or charges
paid by you during such Contract Year or part thereof (the "Minimum Fee
Difference"). "Contract Year" means the twelve-month period ending on the
Anniversary Date and each Anniversary Date thereafter.
15.2 You agree to pay all costs and expenses incurred by us in
connection with 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 Cash
Account when incurred. Our fees may be changed by us 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.
15.3 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.
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15.4 Within thirty (30) days of the end of each Contract Year, we
shall charge into your account the Shared Loss Amount (hereinafter defined).
"Shared Loss Amount" means the lesser of: a) $25,000 and b) the aggregate gross
face amount of all Factor Risk Accounts that remain unpaid due to Credit Risk.
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 $5,000 for
the initial setup and implementation of your account with us.
16. TERMINATION
16.1 You may terminate this Agreement only by giving us at least
sixty (60) days prior written notice of termination. In the event that this
Agreement is terminated by you prior to an Anniversary Date, we shall be
entitled to the unpaid portion of the Minimum Fees Difference, if any, for such
Period, as provided in section 15.1 above, as of the effective date of
termination. "Anniversary Date" means the last day of the month occurring one
year 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 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 which is not
cured within thirty (30) days of such event, if such can be cured; (d) you fail
to pay any Obligation when due and such failure continues for three (3) days or
longer; or (e) the existence of an Event of Default as defined in and under any
other lending agreement between you and another secured lender.
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, and may remove from any premises where same may be located,
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
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permission to: (a) use (at your expense) your personnel, supplies, equipment,
computers and space, at your place of business or elsewhere; and (b) notify
postal authorities to change the address for delivery of your mail to such
address as we may designate and to receive and open your mail. We agree to turn
over to you or your representative all mail not related to the aforesaid
purposes.
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 North Carolina, 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 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.
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19. JURY TRIAL WAIVER
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EACH HEREBY WAIVE 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
US OR TO WHICH WE ARE PARTIES.
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 Charlotte, North
Carolina, 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/ Xxxxxxx Xxx
--------------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
Read and Agreed to:
XXXXXXXX XXXXX, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name Xxxxx X. Xxxxxx
Title: Interim Chief Financial Officer
Attest: /s/ Xxxxxx X. Xxxxx
----------------------
[CORPORATE SEAL]
Accepted at Charlotte, North Carolina
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By: /s/ X.X. Xxxxxxxxxxxx
-------------------------------------
Name: X.X. Xxxxxxxxxxxx
Title: Senior Vice President
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