BNY FINANCIAL CORPORATION
FACTORING AGREEMENT
January 30, 1998
BIG BALL SPORTS, INC.
0000 Xxxxx Xxxxxxxx, #X0
Xxxxxxx, Xxxxx 00000
This agreement states the terms and conditions
upon which we will act as your sole factor,
effective as of January 30, 1998 ("Effective Date").
1.COVERED SALES; SECURITY INTEREST
(a)You hereby assign and sell to us, as
absolute owner, and we hereby purchase
from you, all "Receivables" (as hereinafter defined),
created before, on or after the Effective Date,
which arose or arise from your sale of merchandise or
rendition of services. Our purchase of and
acquisition of title to each Receivable will be
effective as of the date of its creation and will be
entered
on our books when you furnish us with a copy of the
respective invoice.
(b)You hereby grant to us a continuing security
interest in all of your present and
future Receivables, as security for all "Obligations"
(as hereinafter defined).
2.CUSTOMER CREDIT APPROVAL
You shall submit to us the principal terms of
each of your customers' orders for our written
credit approval. We may, in our discretion, approve
in writing all or a portion of your customers'
orders, either by establishing a credit line limited
to a specific amount for a specific customer, or by
approving all or a portion of a proposed purchase
order submitted by you. No credit approval shall
be effective unless in writing and unless the goods
are shipped or the services rendered within the time
specified in our written credit approval or within 45
days after the approval is given, if no time is
specified. Upon the earlier to occur of (i) the
customer having accepted delivery of the goods or
performance of the services or (ii) the goods have
been deposited by you with a common carrier for
delivery to such customer on "f.o.b. point of origin"
terms, we shall then have the "Credit Risk" as
hereinafter defined (but not the risk of non-payment
for any other reason), to the extent of the dollar
amount specified in the credit approval, on all
Receivables evidenced by invoices which arise from
orders approved by us in writing except for those
invoices evidencing charges for samples supplied
to your customers. We shall have neither the Credit
Risk nor the risk of non-payment for any other
reason on Receivables arising from orders not
approved by us in writing. We may withdraw our
credit approval or withdraw or adjust a credit line
at any time before the earliest to occur of (a) your
delivery or deposit of the goods with a common
carrier on "f.o.b. point of origin" terms, as
contemplated above, or (b) rendition of the services,
as the case may be.
3.PURCHASE PRICE OF RECEIVABLES
(a)The purchase price of Receivables is the net
face amount thereof less our
commission. The term "net face amount" means the
gross face amount of the invoice, less returns,
discounts (which shall be determined by us where
optional terms are given), anticipation reductions
or any other unilateral deductions taken by
customers, and credits, and allowances to customers
of
any nature. The purchase price will be payable on
the "Maturity Date" (hereinafter described). At
the close of each month, we will compute the average
due date of all Receivables purchased by us
during the month. In computing the average due date
we will take into account all credits issued to
customers. The Maturity Date for all such
Receivables will be five (5) business days after the
average
due date. We may deduct, from the amount payable to
you on any Maturity Date, reserves for all
Obligations then chargeable to your account and
Obligations which, in our sole judgment, may be
chargeable to your account thereafter including, but
not limited to, ineligible Receivables, Receivables
which are not credit approved, disputes, deductions,
allowances, credits, xxxx and hold and
consignment sales, other offsets asserted or granted,
ineligible Inventory and such additional amounts
as we in our sole judgment deem appropriate
(collectively, "Reserves").
(b)Notwithstanding anything to the contrary
contained in this agreement, if, when
you submit to us (for our prior written approval),
the amount, terms and delivery date of a proposed
sale of goods, (i) you identify such proposed sale
with the special number that we give you for this
purpose, and (ii) you advise us in writing and if we
concur that the order for the goods is a special
order by the customer which will require you to have
the goods manufactured according to the
customer's specifications and that the goods cannot
be sold readily to buyers other than such
customer at a price reasonably close to the contract
price for such goods (such goods being
hereinafter referred to as the "Special Goods"), and
(iii) our approval, having been given by us, is
thereafter withdrawn by us pursuant to the terms
hereof after the Special Goods have been
manufactured but prior to completion of your delivery
thereof, then you shall have the following
options, provided that the Special Goods are
available for delivery by you on or before the
delivery
date specified in our approval, free and clear of all
liens and encumbrances: (a) you may complete
your sale of the Special Goods to the customer at
your own risk; or (b) you may use your best efforts
promptly to re-sell the Special Goods, at the best
price available, after first obtaining our written
consent to any such re-sale (the "Re-sale"). If you
proceed under option (b), we shall, upon
consummation of the Re-sale, or upon the original
invoice due date under the selling terms specified
in the credit approval (whichever is later), credit
your account with a sum equal to the amount by
which your "Standard Cost" for the Special Goods as
published by you and approved by us
(hereinafter, the "Manufacturing Cost") exceeds the
proceeds of the Re-sale. We may at our option
elect to purchase the Special Goods from you for a
purchase price equal to the Manufacturing Cost.
However, our obligation hereunder, to you and the
Other Client on a combined basis, shall not exceed
$50,000 per annum.
(c)We shall not be obligated to pay you, or
make any Advances or loans against,
the purchase price of any Receivable which arises out
of your delivery of inventory to any of your
licensors for which you receive no consideration
other than a credit toward your obligations to such
licensor to advertise the products which are the
subject of such agreement, and we shall not be
entitled to charge our commission on such Receivables
provided, however, that the gross face amount
of such Receivables (measured by the amount of such
credit against your said advertising obligations)
shall not exceed the aggregate amount of $50,000 per
annum for you.
(d)Until we notify you otherwise, you may
retain the proceeds of any sales made
on the basis of cash before or on delivery. In no
event shall we be obligated to make any payments
(including, but not limited to, Advances or loans)
against any such transactions. You warrant and
represent that such transactions will not exceed the
aggregate amount of $3,000,000 per annum for
you and the Other Client, on a combined basis.
4.ADVANCES; INTEREST; COMMISSIONS; LATE PAYMENT
CHARGES
(a)I.If you request, we shall, subject to the
other provisions of this
agreement, make payments to you of the purchase price
of Receivables in advance of the Maturity
Date ("Advances") and additional amounts, subject to
our right to withhold Reserves. All amounts,
if any, which we pay or make available to you or for
your account in excess of the purchase price of
Receivables are loans and shall be chargeable to your
account when paid or made available to you.
However, at no time shall the aggregate amount of
then outstanding Obligations of you and the Other
Client on a combined basis, including but not limited
to Obligations under the $4,157,000 Promissory
Note dated July 29, 1994 executed by Signal Apparel
Company, Inc. as maker, to us as payee, as the
same may now exist or may hereafter be amended,
restated, replaced, substituted, extended, or
otherwise modified (the "Note"; outstanding
Obligations under the Note, as the same may change
from time to time, are hereinafter called
collectively, the "Note Amount") but excluding
amounts
owing by you and the Other Client to any present or
future client of ours on invoices purchased by
us ("Ledger Debt"), and including without limitation,
all advances, other loans and all other amounts
charged or chargeable to your account and the Other
Client's account, exceed the Facility Amount
(as defined herein), subject in all respects to
availability under the Borrowing Base (as defined
herein).
The Borrowing Base shall be calculated for you and
the Other Client on a combined basis.
Obligations of you and the Other Client other than
the Note Amount and Ledger Debt, as such
Obligations shall change from time to time, are
hereinafter collectively called the "Revolver
Amount".
At no time shall the Revolver Amount exceed the
Borrowing Base, except that, in our sole discretion,
we may from time to time at your request, permit the
Revolver Amount to exceed the Borrowing
Base by an amount not to exceed the Special
Overadvance amount in effect from time to time,
provided that, notwithstanding anything to the
contrary contained herein, the aggregate amount of
outstanding Obligations of you and the Other Client
on a combined basis, shall not at any one time
exceed the Facility Amount. Furthermore, and without
limiting your obligations or our other rights,
you shall forthwith pay us the amount, if any, by
which the Revolver Amount at any time and from
time to time exceeds the Borrowing Base.
II.The "Facility Amount" means, for you and the
Other Client, on a
combined basis, the sum of $55,000,000.
III.The "Borrowing Base" means, at any time for
you and the Other Client
on a combined basis, the sum of (i) the then
"Applicable Percentage" (as hereinafter defined) of
the
net face amount of then outstanding credit approved
"Eligible Receivables" (as hereinafter defined)
plus, to the extent included in our sole and absolute
discretion, the then Applicable Percentage of the
net face amount of then outstanding non-credit
approved Receivables, less Reserves, plus (ii) the
lesser of (A) $16,000,000 or (B) 50% of "Eligible
Inventory" (as hereinafter defined) less Reserves
plus (iii) the amount of cash or cash equivalents
satisfactory to us ("Pledged Amount") pledged to
us as security for your Obligations on terms and
conditions satisfactory to us, so long as (A) we hold
the Pledged Amount pursuant to said pledge, (B) said
pledge and the validity and enforceability
thereof are not subject to attack by any entity, (C)
the pledgor is not in a bankruptcy proceeding, and
(D) the pledgor is not in any other proceeding in
which the pledge or its validity or enforceability is
the subject of attack by any entity. However, we may
at any time and from time to time, in our
reasonable discretion, increase or decrease any of
the percentages referred to in the preceding
sentence. Notwithstanding anything to the contrary
contained herein, the Borrowing Base shall not
include, without limitation, the Applicable
Percentage of the net face amount of outstanding non-
credit approved Receivables owing by any account
debtor where fifty (50%) percent or more of such
outstanding non-credit approved Receivables owing by
any such account debtor are more than sixty
(60) days past due.
IV."Applicable Percentage" means, subject to
our right to withhold
Reserves, 85% except that said percentage shall be
90% after the expiry of two consecutive calendar
quarters during which less than 3% of all Receivables
(measured by gross face amount) becoming due
during those quarters fail to be paid in full in
accordance with their terms; provided, however, that
said percentage shall revert to 85% after the passage
of one calendar quarter during which 3% or
more of all Receivables (measured by gross face
amount) becoming due during those quarters fail to
be paid in full in accordance with their terms.
V."Eligible Receivables" means each Receivable
arising in the ordinary
course of your business and the Other Client's
business and which we, in our sole credit judgment,
shall deem to be an Eligible Receivable, based on
such considerations as we may from time to time
deem appropriate. In general, a Receivable shall not
be deemed eligible unless such Receivable is
subject to our perfected security interest and no
other lien and is evidenced by an invoice or other
documentary evidence satisfactory to us. In
addition, no Receivable shall be an Eligible
Receivable
if:
(a)it arises out of a sale made by you or the
Other Client to an
affiliate of yours or to an entity controlled by an
affiliate of yours or the Other Client's;
(b)it is not credit approved by us;
(c)fifty (50%) percent or more of the
Receivables from the account
debtor are not deemed Eligible Receivables hereunder;
such percentage may, in our sole discretion,
be increased or decreased from time to time;
(d)any covenant, representation or warranty
contained in this
Agreement with respect to such Receivable has been
breached;
(e)the account debtor is also your creditor or
supplier or a creditor
or supplier of the Other Client, or the account
debtor has disputed liability, or the account debtor
has
made any claim with respect to any other Receivable
due from such account debtor to you or the
Other Client, or the Receivable otherwise is or may
become subject to any right of setoff by the
account debtor;
(f)the account debtor has commenced a voluntary
case under the
federal bankruptcy laws, as now constituted or
hereafter amended, or made an assignment for the
benefit of creditors, or if a decree or order for
relief has been entered by a court having
jurisdiction
in the premises in respect of the account debtor in
an involuntary case under any state or federal
bankruptcy laws, as now constituted or hereafter
amended, or if any other petition or other
application for relief under any state or federal
bankruptcy law has been filed against the account
debtor, or if the account debtor has failed,
suspended business, ceased to be solvent, called a
meeting
of its creditors, or consented to or suffered a
receiver, trustee, liquidator or custodian to be
appointed
for it or for all or a significant portion of its
assets or affairs;
(g)the sale is to an account debtor outside the
continental United
States, unless the sale is on letter of credit,
guaranty or acceptance terms, in each case acceptable
to
us in our sole discretion;
(h)the sale to the account debtor is on a xxxx-
and-hold, guaranteed
sale, sale-and return, sale on approval, consignment
or any other repurchase or return basis or is
evidenced by chattel paper;
(i)the account debtor is the United States of
America, any state
or any department, agency or instrumentality or any
of them, unless you assign your right to payment
of such Receivable to us pursuant to the Assignment
of Claims Act of 1940, as amended (31 U.S.C.
sub-Section 203 et seq.) or have otherwise complied
with other applicable statutes or ordinances;
(j)(i) the goods giving rise to such Receivable
have not been
shipped and delivered to and accepted by the account
debtor or (ii) the goods giving rise to such
Receivable have not been deposited with a common
carrier for delivery to the account debtor on
"f.o.b. point of origin terms"; or (iii) the services
giving rise to such receivable have not been
performed by you or the Other Client and accepted by
the account debtor or (iv) the Receivable
otherwise does not represent a final sale;
(k)the Receivables of the account debtor exceed
a credit limit
determined by us in our sole discretion, to the
extent such Receivable exceeds such limit;
(l)the Receivable is subject to any offset,
deduction, defense,
dispute, or counterclaim or if the Receivable is
contingent in any respect or for any reason;
(m)you or the Other Client have made any
agreement with any
account debtor for any deduction therefrom, except
for discounts or allowances made in the ordinary
course of business for prompt payment, all of which
discounts or allowances are reflected in the
calculation of the face value of each respective
invoice related thereto;
(n)any return, rejection or repossession of the
merchandise has
occurred;
(o)such Receivable is not payable to you or the
Other Client;
(p) such Receivable is not otherwise
satisfactory to us as
determined in good faith by us in the exercise of our
discretion in a reasonable manner; or
(q)more than one hundred-twenty (120) days have
elapsed after
the date of the invoice.
VI."Special Overadvance" means, for you and the
Other Client, on a
combined basis, an amount determined by us in our
sole discretion, which amount shall not exceed
at any one time outstanding, the aggregate sum of
$15,000,000.
VII."Eligible Inventory" means for you and the
Other Client on a combined
basis, T-Shirt and fleece blanks which are then work-
in-process and finished goods (other than
inventory in retail stores) located in the U.S.A.,
valued at the lower of cost or market value,
determined on a first-in first-out basis, (it being
understood that with respect to finished goods, cost
shall mean your "Standard Cost" as published by you
from time to time subject to our approval
thereof) which is not, in our opinion, obsolete, slow
moving, in unacceptable condition or
unmerchantable or merchantable only at a price less
than cost and which we, in our sole discretion,
shall not deem ineligible inventory, based on such
considerations as we may from time to time deem
appropriate including, without limitation, whether
the inventory is subject to a perfected, first
priority
security interest in favor of us and whether the
inventory conforms to all standards imposed by any
governmental agency, division or department thereof
which has regulatory authority over such goods
or the use or sale thereof. Without limiting the
foregoing, so long as you are in default under any
licensing agreement relating to any inventory, or so
long as the licensor thereunder shall not have
entered into an agreement in form and substance
acceptable to us relating to such inventory and our
rights therein, the respective inventory may, in our
sole discretion, be ineligible. Our making loans
to you related to the value of such inventory despite
its ineligibility shall not be deemed a waiver of
any of our rights to deem such inventory ineligible
at any time or times, or your obligation hereunder
to pay us forthwith the amount by which outstanding
Obligations shall exceed the Borrowing Base
as a result of such ineligibility.
(b)For our services, we shall charge to your
account and the Other Client's
account, on a combined basis, without duplication:
(i)monthly, as of the last day of each month,
interest on the average daily
balance of all Advances (which do not include the
Note Amounts) and amounts charged and
chargeable to your account hereunder (said Advances,
loans, which do not include the Note
Amounts, and amounts being herein collectively called
"Interest Bearing Obligations") which are
outstanding during such month at a rate per annum
which exceeds the average "Alternate Base Rate"
(as hereinafter defined) in effect during such month
by the then "Applicable Margin" (as hereinafter
defined); provided, however, that said interest rate
shall not be less than six percent (6%) per annum
and shall in no event be higher than the highest rate
permitted by New York law. "Alternate Base
Rate" shall mean, for any day, a rate per annum equal
to the higher of (i) the Prime Rate in effect on
such day and (ii) the Federal Funds Rate in effect on
such day plus 1/2 of 1%. "Prime Rate" shall
mean the prime commercial lending rate of the "Bank"
as publicly announced to be in effect from time
to time, such rate to be adjusted automatically,
without notice, on the effective date of any change
in such rate. "Bank" shall mean The Bank of New
York, New York, New York. "Federal Funds
Rate" shall mean, for any day, the weighted average
of the rates on overnight Federal funds
transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as
published for such day (or if such day is not a
business day, for the next preceding business day) by
the Federal Reserve Bank of New York, or if such rate
is not so published for any day which is a
business day, the average of quotations for such day
on such transactions received by the Bank from
three Federal funds brokers of recognized standing
selected by the Bank. Interest shall be calculated
on the basis of the actual number of days elapsed
over a year of 360 days. "Applicable Margin" shall
mean one and one-quarter percent (1 1/4%); provided,
however, that for each period during which the
Revolver Amount does not exceed an amount equal to
85% of the net face amount of the then
outstanding Eligible Receivables, plus (i) an amount
equal to 25% of the then Eligible Inventory, the
Applicable Margin shall be one (1%) percent, or (ii)
an amount greater than 25% of the then Eligible
Inventory, but less than 36% of the then Eligible
Inventory, the Applicable Margin shall be one and
one-eighth (1 %) percent, provided further that, if
the Interest Bearing Obligations and amounts due
under letters of credit issued pursuant to the Letter
of Credit Supplement outstanding for a period
of five (5) or more days in any month during the
Initial Term, including any Renewal Term, exceed
the sum of the Borrowing Base less Reserves (such
excess, an "Overadvance") plus the amount of
the Special Overadvance, on such days, the Applicable
Margin pertaining to all Interest Bearing
Obligations shall be increased by one half of one
(1/2%) percent. Furthermore, "Applicable Margin"
shall mean three and three-quarters percent (3 3/4%)
with respect to all Obligations not paid when
due hereunder so long as they remain unpaid.
(ii) monthly, as of the 15th day of each month,
(x) with respect to all
Receivables on which X.X. Xxxxxx is the account
debtor which are purchased hereunder during each
Contract Year ("X.X. Penney Receivables") (A) from
$0.00 up to an aggregate amount of $5,000,000
of such X.X. Xxxxxx Receivables, a commission at the
rate of four tenths of one (.4%) percent, and
(B) in excess of the aggregate amount of $5,000,000
of such X.X. Penney Receivables, a commission
at the rate of sixty-five one hundredths of one
(.65%) percent; and (y) with respect to all other
Receivables purchased hereunder which are not X.X.
Xxxxxx Receivables, a commission at the rate
of sixty-five one hundredths of one percent (.65%),
in each case, of the gross face amount of each
invoice evidencing any such Receivable purchased
hereunder during such month on terms not
exceeding 90 days (including dating), plus an
additional one-quarter of one percent (1/4%) for each
additional thirty (30) days or portion thereof of
selling terms. Our commission on any invoice
evidencing a Receivable purchased hereunder shall not
be less than $3.00, except that, with respect
to all X.X. Xxxxxx Receivables purchased hereunder
during any Contract Year up to an aggregate
amount of $5,000,000 during such Contract Year, the
commission on any invoice evidencing such
X.X. Penney Receivable purchased hereunder shall be
$0.00. Furthermore, the aggregate amount of
Receivables with respect to which you are obligated
to pay commissions and which you sell and
assign to us ("Volume") shall not be less than
$20,000,000 ("Minimum") per Contract Year (each
successive period of twelve consecutive months
commencing on January 1 of each year) during which
this agreement is in effect, except that, for the
first Contract Year, the Minimum shall be
$15,000,000.
If the Volume in any Contract Year is less than the
Minimum, we shall charge to your and the Other
Client's account the difference ("Minimum Volume
Charge") between the commission on the
Minimum and the commission on the Volume for the
Contract Year, provided, that, in no event shall
the aggregate amount(s) charged to your and the Other
Client's account for your Minimum Volume
Charge obligation under this Paragraph 4(b)(ii)
exceed the amount of your Minimum Volume Charge
for the applicable period. You and the Other Client
shall be jointly and severally liable to us for any
Minimum Volume Charge. We shall compute the Minimum
Volume Charge, if any, on a calendar
quarterly basis and charge your account and the Other
Client's account therefor for each calendar
quarter in the month following the end of such
calendar quarter, or in the month following the
effective date of termination of this agreement,
whichever is earlier. The Other Client's Volume
shall
not be added to your Volume for the purposes of
calculating your Minimum Volume for any period
or calculating your Minimum Volume Charge for any
period. If you do not meet the Minimum
Volume with respect to any particular calendar
quarter period within a Contract Year and you
therefore pay to us a yearly Minimum Volume Charge
for such particular calendar quarter period and
in the subsequent calendar quarter period in the same
Contract Year, your Minimum Volume for
which commissions have been paid by you to us under
this agreement then exceeds the Minimum
applicable to such subsequent calendar quarter
period, by reason of such Minimum Volume Charge
previously paid, you shall then be entitled to
receive a rebate from us to your account, to the
extent
of the lesser of such excess or the Minimum Volume
Charges previously paid to us in any such prior
calendar quarter period of the same Contract Year.
Similarly, if for any calendar quarter period
within a particular Contract Year, the commissions
paid to us under this agreement exceed the
Minimum applicable to such calendar quarter period
and in any subsequent calendar quarter period
we otherwise would have been entitled to receive and
you would have been responsible for paying
to us any Minimum Volume Charge applicable to such
subsequent calendar quarter period, in
calculating the amount of such Minimum Volume Charge
payable in such subsequent calendar quarter
period you shall be entitled to a credit against the
same to the extent of the lesser of such excess or
the Minimum Volume Charge that would otherwise then
have been due from you to us in relation to
such subsequent calendar quarter period within the
same Contract Year. Except however to the
extent specifically set forth above, nothing
contained herein is or shall be deemed to change,
limit or
otherwise adversely affect our right to charge and
receive and your obligation to pay to us
commissions and/or any Minimum Volume Charges payable
with respect to any Contract Year or part
thereof during which this agreement remains in
effect, or to entitle you to receive any rebate
and/or
credit with respect to any commissions payable to us
hereunder. Notwithstanding the foregoing,
should the Volume during any Contract Year or part
thereof during which this agreement remains
in effect, exceed the Minimum applicable thereto,
nothing contained herein shall entitle you to receive
any rebate and/or credit other than strictly as
provided for above. However, if an Event of Default
occurs, and if we so elect, and whether or not we
then or thereafter exercise any of our rights of
termination hereunder (including but not limited to
our rights under Paragraph 9(a)(ii)), we may on
or at any time after the occurrence of such Event of
Default compute and charge your account for
the Minimum Volume Charge for the period starting on
such occurrence and ending on the next date
as of which you may terminate this agreement under
Paragraph 9(a)(i), and, for the purpose only of
computing such Minimum Volume Charge, we may assume
that your Volume for the period will be
zero, subject, of course, to subsequent adjustment if
such Volume in fact is more than zero.
(iii) all bank charges for wire transfers.
(iv) quarterly, as of the 15th day of the month
next occurring after the end
of each of your fiscal quarters, a fee at the rate of
one quarter of one percent (1/4%) per annum,
calculated and payable quarterly, on the difference
between the Facility Amount and the sum of (x)
average outstanding Revolver Amount during such
quarter, and (y) the average outstanding Note
Amounts during such quarter.
(v) Customer late payment charges, not paid by
the customer, but only if
the charge exceeds five ($5.00) dollars and the
payment is five (5) business days or more past due,
said charges are to be computed at the rate specified
in paragraph 4(b)(i) of this Agreement (subject
to change as indicated therein).
(c) Notwithstanding anything to the contrary
contained in this agreement or in any
other agreement entered into in connection herewith
or securing the indebtedness evidenced hereby,
whether now existing or hereafter arising and whether
written or oral, it is agreed that the aggregate
of all interest and any other charges constituting
interest, or adjudicated as constituting interest,
and
contracted for, chargeable or receivable under this
agreement or otherwise in connection with any
of the Obligations at any time and from time to time
more as fully described herein, shall under no
circumstances exceed the maximum amount of interest
permitted by applicable law. In the event the
maturity date of any Obligations arising under or in
connection with this agreement is accelerated by
us, whether reason of our election made in accordance
with the terms and provisions hereof resulting
from your breach or default hereunder or under any
other document executed as security herefor or
in connection herewith or otherwise, or by voluntary
prepayment by you or otherwise, then earned
interest may never include more than the maximum rate
of interest permitted by applicable law. If
from any circumstance we shall ever receive interest
or any other charges constituting interest, or
adjudicated as constituting interest, the amount, if
any, which would exceed the maximum rate of
interest permitted by applicable law (the "Excess
Interest") shall be applied to the reduction of the
principal amount of Obligations owing under or in
connection with this agreement or on account of
any other principal indebtedness of yours to us, and
not to the payment of interest. If the Excess
Interest exceeds the unpaid balance of principal of
your Obligations to us arising under or in
connection with this agreement and the principal
balance of any other such Indebtedness, then that
portion of the Excess Interest that exceeds such
unpaid principal balance of your Obligations under
or in connection with this agreement and such other
principal indebtedness, shall be refunded to you.
All sums paid or agreed to be paid us for the use,
forbearance or detention of any of your Obligations
to us shall be amortized, prorated, allocated and
spread throughout the Term of such Obligations until
payment in full, so that the actual rate of interest
on account of such Indebtedness is uniform
throughout the Term hereof. If the applicable law is
amended in the future to allow a greater rate of
interest to be charged under this agreement than is
presently allowed by such applicable law, then the
limitation of interest hereunder shall be increased
to the maximum rate of interest may be increased
to the maximum rate of interest allowed by such
applicable law as amended, which increase shall be
effective hereunder on the effective date of such
amendment.
5. MATURED FUNDS
On the last day of each month, we shall credit
your account with interest at the Matured
Funds Rate in effect during such month on the average
daily balance during such month of any
amounts payable by us to you or the Other Client, as
the case may be, hereunder (as confirmed by
us by appropriate credit to your account with us or
the Other Client's account, as the case may be)
which are not drawn by you on the Maturity Date,
while held by us after the Maturity Date.
"Matured Funds Rate" shall mean the rate of interest,
announced by us from time to time, as the rate
applicable to matured funds, such rate to be adjusted
automatically on the effective date of any
change in such rate announced by us.
6. CHARGES; BALANCES; RESERVES
We may charge to your account all Obligations.
Recourse to security will not be required at
any time. All credit balances or other sums at any
time standing to your credit and all Reserves on
our books, and all of your property in our possession
at any time or in the possession of any parent,
affiliate or subsidiary of ours or on or in which we
or any of them have a lien or security interest, may
be held and reserved by us as security for all
Obligations. We will account to you monthly and each
monthly accounting statement will be fully binding on
you and will constitute an account stated,
unless, within thirty (30) days after such statement
is mailed to you or within thirty (30) days after
the mailing of any adjustment thereof we may make,
you give us specific written notice of exceptions.
7. REPRESENTATIONS AND WARRANTIES; DISPUTES;
RETURNS;
CHARGEBACKS
(a) You warrant and represent that you have
good title to the Receivables free of
any encumbrance except in our favor; each Receivable
purchased hereunder is a bona fide,
enforceable obligation created by the absolute sale
and delivery of goods (including, without
limitation, the deposit of goods with a common
carrier as contemplated in Paragraph 2 hereof) or the
rendition of services in the ordinary course of
business; when you assign each Receivable to us your
customer is unconditionally obligated to pay at
maturity the full amount of each Receivable purchased
hereunder without defense, counterclaim or offset,
real or alleged; all documents in connection
therewith are genuine; and when you assign each
Receivable to us the customer will accept the goods
or services without alleging any defense,
counterclaim, offset, dispute or other claim whether
arising
from or relating to the sale of such goods or
services or arising from or relating to any other
transaction or occurrence (a "Dispute").
(b) You further represent and warrant that (i)
your address set forth above is that
of your chief place of business and chief executive
office and the location of all "Collateral" (as
hereinafter defined) and of your books and records
relating to the Receivables; (ii) by a separate
writing you have disclosed to us the locations of all
of your other places of business as well as all
trade names or styles, trademarks, divisions or other
names under which you conduct business
(hereinafter collectively defined as the "Trade
Names"); and (iii) except after 30 days prior written
notice to us of your intention to do so, you will not
make any change in your name or corporate
structure (whether by merger, reorganization or
otherwise) or sell or acquire any assets except in
the
ordinary course of your business, nor make any change
which would have the effect of rendering
inaccurate or incomplete the representations
contained in this subparagraph (b). If you make or
propose to make any changes referred to in the
immediately preceding subdivision (iii), we may,
before or at any time after such change occurs,
terminate this agreement effective immediately by
giving you written notice of such termination.
(c) You shall promptly provide us with
duplicate originals of all credits which you
issue to your customers and immediately notify us of
any merchandise returns or Disputes. You will
settle all Disputes at no cost or expense to us; our
practice is to allow you a reasonable time to do
so. If you so request, provided no Event of Default
has occurred and is continuing, you may enforce
your rights against any of your customers on any
Receivable which is subject to a Dispute if we have
charged your account for such Receivable. We will
reasonably cooperate with you in such
enforcement but at your sole cost and expense.
However, the settlement of any such claim shall be
subject to our prior written approval. Furthermore,
all proceeds of such enforcement shall be
promptly delivered to us for credit to your account.
Should we so elect, we may at any time in our
discretion (i) withdraw your authority to issue
credits to your customers without our prior written
consent; (ii) litigate Disputes or settle them
directly with the customers on terms acceptable to
us; or
(iii) direct you to set aside, identify as our
property and procure insurance satisfactory to us on
any
returned or repossessed merchandise or other goods
which by sale resulted in Receivables theretofore
assigned to us ("Retained Goods"). All Retained
Goods (and the proceeds thereof) shall be (A) held
by you in trust for us as our property; and (B)
subject to a security interest in our favor as
security
for the Obligations; and (C) disposed of only in
accordance with our express written instructions.
(d) Our Credit Risk, if any, on a Receivable
shall immediately terminate without
any action on our part in the event that (i) your
customer asserts a Dispute (regardless of merit) as
a ground for non-payment of the Receivable or returns
or attempts to return the goods represented
thereby; or (ii) any warranty as to the Receivable is
breached. We may charge to your account at any
time the gross face amount of any Receivable
purchased hereunder (or portion thereof) on which we
do not then have the Credit Risk, whether or not we
had the Credit Risk before we make such charge,
together with interest thereon from the due date of
such Receivable to the date of chargeback; such
action on our part shall not be deemed a reassignment
of such Receivable and will not impair our
rights thereto or security interest therein, which
will continue to be effective until all Obligations
are
fully satisfied.
(e) YOU WARRANT THAT YOU WILL NOT GRANT A
SECURITY
INTEREST IN ANY OF YOUR RECEIVABLES OR IN ANY OF YOUR
INVENTORY TO
ANYONE EXCEPT US WITHOUT OUR PRIOR WRITTEN CONSENT.
(f) You warrant and represent that you are now
and will at all times hereafter be
and remain in compliance with all laws, rules and
regulations of all federal, state and local
governmental agencies having jurisdiction, including
but not limited to those relating to environmental
protection (including EPA) and employees (including
ERISA, FLSA and PBGC).
(g) You warrant and represent that (x) you are
not a party to any litigation or
proceeding the adverse outcome of which could have a
material adverse effect on your business, and
(y) the only litigation and proceedings to which you
are party as set forth on Exhibit A hereto.
(h) You may sell equipment which in your
reasonable opinion is obsolete, but no
such sale shall be for less than the reasonable value
of such equipment. You agree not to make during
any calendar year any such sales of equipment, the
receivable value of which exceeds $25,000 per sale
or $100,000 in the aggregate, without our prior
written consent. You will promptly deliver the
proceeds of such sales to us for application against
installments of the $4,157,000 Promissory Note
dated July 29, 1994 by Signal Apparel Company, Inc.,
as maker, to us as payee, as hereafter amended
or supplemented, in inverse order of maturity.
8. INVOICING; PAYMENTS; RETURNS
Each of your invoices and all copies thereof
shall bear a notice (in form satisfactory to us) that
it is owned by and payable directly and only to us at
locations designated by us, and you shall furnish
us with duplicate originals of your invoices
accompanied by a confirmatory assignment thereof.
Your
failure to furnish such specific assignments shall
not diminish our rights. You shall procure and hold
in trust for us and furnish to us at our request
satisfactory evidence of each shipment and delivery
or
rendition of services. Each invoice shall bear the
terms stated on the customer's order, as submitted
to us, whether or not the order has been approved by
us, and no change from the original terms of
the order shall be made without our prior written
consent. Any such change not so approved by us
shall automatically terminate our Credit Risk, if
any, on the Receivable arising from your performance
of the order. You will hold in trust for us and
deliver to us any payments received from your
customers in the form received, and hereby
irrevocably authorize us to endorse your name on all
checks and other forms of payment. Each payment made
by a customer shall first be applied to
Receivables, if any, on which we have the Credit
Risk, and the balance, if any, of such payment shall
be applied to other Receivables due from such
customer. You understand that we shall not be liable
for any selling expenses, orders, purchases,
contracts or taxes of any kind resulting from any of
your
transactions, and you agree to indemnify us and hold
us harmless with respect thereto, which
indemnity shall survive termination of this
agreement.
9.TERMINATION
(a) This agreement shall remain in full force
and effect until the expiration of the
Term unless sooner terminated as set forth below.
The Term shall be automatically extended for
successive periods of one year each unless either
party shall have provided the other with written
notice of termination (by Certified Mail, Return
Receipt Requested) not less than sixty (60) days
prior
to and effective on expiration of the Initial Term or
any Renewal Term.
(i) You may terminate this agreement effective
at any time by giving
written notice of termination to us sixty (60) days
prior to the effective date of such termination, and
upon payment in full of all Obligations, including,
but not limited to, the Minimum Volume Charge
for the Contract Year in which such termination
occurs, as well as any Contract Year remaining in
the Initial Term or any Renewal Term (as the case may
be), and we may terminate this agreement
effective as of March 31, 2000 or any time
thereafter, by giving you written notice of
termination not
less than sixty (60) days prior to the effective date
of termination. You and we each acknowledge
and agree that you or we may exercise the right to
terminate under this subdivision (i) even if the
other party is not in breach of or in default under
this agreement.
(ii) If you shall suspend business, sell all or
a significant portion of your
assets, become insolvent or unable to pay debts as
they mature, make an assignment for the benefit
of creditors, or apply for an extension from
creditors; or if a meeting of your creditors is
called; or
if a Receiver or Trustee shall be appointed for you
or your property; or if your property shall become
subject to any lien or attachment; or if a petition
under the Federal Bankruptcy Code shall be filed by
or against you; or if you shall seek relief under any
insolvency statute, federal, state or other; or if a
custodian shall be appointed for all or substantially
all of your property; or if any agreement between
ourselves and any of your existing or future parent
or wholly owned subsidiaries including, without
limitation, the Other Client (collectively, the
"Related Concerns") or any instrument now or
hereafter
held by us or to our order and made by you or any of
such Related Concerns shall be breached by any
of such Related Concerns or if any Related Concerns
shall be in default thereunder; or if any separate
factoring agreement between ourselves and any of the
Related Concerns is terminated, for any reason
whatsoever, or any event or circumstance exists which
would permit us to terminate any such
factoring agreement in accordance with its terms; or
if you shall breach this agreement or any other
agreement between us; or if you are or become in
default under this agreement, or if any warranty,
or representation hereunder or any portion of the
contents of any document heretofore or hereafter
furnished in connection with this agreement is or
becomes untrue or misleading (except for future
performance against projections heretofore furnished
to us); or if you shall fail to pay any Obligation
when due; or if any guaranty of the Obligations shall
be terminated; then in any such event, we may
terminate this agreement at any time without notice,
and this agreement shall automatically terminate
in the event of a filing of a petition under the
Federal Bankruptcy Code by or against you; or
(iii) If this agreement is terminated pursuant
to paragraph 7 (b) above.
(b) On the effective date of termination all
Obligations (including, without
limitation, any Overadvance and any Special
Overadvance) shall become immediately due and payable
in full without further notice or demand and we shall
have no further obligation to provide any
Advances or loans hereunder. Our rights with respect
to Obligations owing to us, or chargeable to
your account, arising out of transactions having
their inception prior to the effective date of
termination, will not be affected by termination.
Without limiting the foregoing, all of our security
interests and other rights in and to all Receivables,
whether then existing or arising thereafter
(including assignments and remittance of payments),
Retained Goods, credit balances, and any other
property in our possession or the possession of any
parent, affiliate or subsidiary of ours and any
other security for the Obligations (including but not
limited to inventory and machinery and
equipment), whether coming into existence or into our
or their possession before, on or after the
effective date of termination and all proceeds
thereof (collectively "Collateral") shall continue to
be
operative until such Obligations have been fully and
finally satisfied or you have furnished us an
indemnity from an indemnitor satisfactory to us.
(c) If you terminate this agreement pursuant to
Paragraph 9 (a)(i), effective as of
any date prior to March 31, 2000, or if you cease for
a period of thirty (30) or more consecutive
calendar days prior to March 31, 2000 to request
Advances or loans from us, or if this agreement is
terminated pursuant to Paragraph 9(a)(ii) or (iii),
or if we suspend making Advances, loans or any
other extensions of credit to you pursuant to
Paragraph 9(d) of this agreement, then, in any such
case,
in addition to your other Obligations, you and/or the
Other Client will pay us on the effective date
of termination, cessation or suspension, as the case
may be, an "Early Termination Fee", which Early
Termination Fee shall be a joint and several
obligation of you and the Other Client, in the
aggregate
amount for you and the Other Client not to exceed the
amount of (x) $500,000 if the effective date
of termination, cessation or suspension occurs during
the period from April 1, 1997 through and
including March 31, 1998; (y) $300,000 if the
effective date of termination, cessation or
suspension
occurs during the period from April 1, 1998 through
and including March 31, 1999; or (z) $200,000
if the effective date of termination, cessation or
suspension occurs during the period from April 1,
1999 through and including March 31, 2000; provided,
however, that the aforesaid Early Termination
Fee applicable to your termination under Paragraph
9(a)(i) shall be reduced by fifty (50%) percent
if such termination occurs on or before the effective
date of any sale of substantially all of your assets
to any entity which or who is not affiliated with you
in any way and if such termination occurs in
connection with such sale.
(d) If any of the events specified in paragraph
9(a)(ii) hereof occurs, we may, if
we so elect, in addition to our other rights, suspend
indefinitely the making of any additional
Advances or loans to you, and/or reduce the Borrowing
Base in a manner and in amounts in our sole
discretion, without at the same time terminating this
agreement. However, such suspension shall not
be a waiver of or otherwise deprive us of any of our
other rights, including but not limited to the right
at any time to terminate this agreement because of
the occurrence of such event or any other event,
or the right to terminate this agreement pursuant to
paragraph 9 (a)(i) hereof, all of which rights are
now hereby, and then shall be automatically, reserved
without any other action on our part.
10. DEFINITIONS: "RECEIVABLES"; "OBLIGATIONS";
OTHER CLIENT";
"CREDIT RISK"; "INITIAL TERM"; "RENEWAL TERM";
"TERM"; "LETTER OF
CREDIT SUPPLEMENT";
As used herein
(a) "Receivables" means all amounts and all
forms of obligations now or hereafter
owing to you (including but not limited to accounts,
instruments, contract rights, documents and
chattel paper) and general intangibles; all security
therefor and guaranties thereof; all of your rights
as an unpaid seller of goods and your rights to goods
sold which may be represented thereby
(including but not limited to your rights of replevin
and stoppage in transit); all of your books of
account, records, files, and documents relating
thereto and the equipment containing said books,
records, files and documents; all of your rights
under insurance policies relating to the foregoing;
the
right to use the Trade Names in connection with our
rights with respect to the goods; and all
proceeds of the foregoing.
(b) "Obligations" means all amounts of any
nature whatsoever, direct or indirect,
absolute or contingent, due or to become due, arising
or incurred heretofore or hereafter, arising
under this or any other agreement or by operation of
law, now or hereafter owing by you to us or to
any parent, subsidiary or affiliate of ours. Said
amounts include, but are not limited to, loans, debts
and liabilities heretofore or hereafter acquired by
purchase or assignment from other present or future
clients of ours, or through participation. Without
limiting the foregoing, Obligations shall include
Advances, loans (including but not limited to the
Note Amount), amounts due under letters of credit,
interest, commission, bank related charges, costs,
fees, expenses, taxes, and all Receivables and other
amounts charged or chargeable to your account
hereunder.
(c) "Other Client" means, individually and
collectively, The Shirt Shed, Inc. and
Signal Apparel Company, Inc. and their respective
successors and assigns, as permitted by us in our
sole discretion.
(d) "Credit Risk" means the risk of loss
resulting solely and exclusively from the
financial inability of your customer to pay at
maturity a Receivable purchased hereunder.
(e) "Initial Term" means the Effective Date
through March 31, 2000.
(f) "Renewal Term" means each annual renewal of
this agreement after the Initial
Term.
(g) "Term" means the Effective Date through
March 31, 2000 and each annual
renewal of this agreement thereafter, subject to
acceleration upon the occurrence of an Event of
Default or other termination hereunder.
(h)"Letter of Credit Supplement" means the
Letter of Credit Financing
Supplement to Factoring Agreement dated January 31,
1992 between us and Signal Apparel
Company, Inc., as the same may be hereafter amended,
supplemented or otherwise modified.
11.Covenants. You covenant and agree that,
until the later of the termination of this
Agreement or the satisfaction in full of all of the
Obligations
(a)you and the Other Client will not
(i)permit any of your or the Other Client's
property (including but not
limited to Receivables, inventory, machinery,
equipment, furniture, fixtures, plant, and real
estate) to
be encumbered by any security interest, encumbrance,
mortgage, or other lien of any nature
whatsoever except (x) in favor of us or (y) pursuant
to a subordination agreement acceptable to us
in our sole and absolute discretion, executed in our
favor.
(ii)permit your and the Other Client's Tangible
Net Worth (equity plus
subordinated debt minus goodwill and intangible
assets), on a combined basis, to be less than the
following amounts on the dates indicated;
As At Amount
(a)09/30/97 $51,400,000
12/31/97 54,800,000
03/31/98 56,100,000
06/30/98 57,350,000
09/30/98 58,600,000
12/31/98 59,850,000
03/31/99 60,000,000
06/30/99 60,000,000
09/30/99 60,000,000
12/31/99 60,000,000
03/31/00 60,000,000
plus(b)an amount equal to sixty-five (65%)
percent of the aggregate
amount of any capital contribution and/or equity
infusion into or any other additional equity
hereafter
derived from any source by you or the Other Client,
excluding the conversion of any subordinated
debt existing on the date hereof into equity of you
or the Other Client.
Intangible assets include write-ups, unamortized
debt discount
and expense, unamortized deferred charges, patents,
licenses, R&D expenses, and other intangible
items.
(iii)permit your and the Other Client's Working
Capital (the amount by
which your current assets exceed your current
liabilities) to be less than the following amounts on
the
dates indicated:
As At Amount
(a)09/30/97 $35,000,000
12/31/97 38,000,000
03/31/98 41,000,000
06/30/98 43,000,000
09/30/98 45,000,000
12/31/98 47,000,000
03/31/99 47,000,000
06/30/99 47,000,000
09/30/99 47,000,000
12/31/99 47,000,000
03/31/00 47,000,000
plus(b)an amount equal to eighty (80%) percent
of the aggregate
amount of any capital contribution and/or equity
infusion into or any other additional equity
hereafter
derived from any source by you or the Other Client,
excluding the conversion of any subordinated
debt existing on the date hereof into equity of you
or the Other Client.
Current assets means cash and marketable
securities, accounts
receivable and inventory. Current liabilities are
accounts payable, accrued expenses, the Advances
and our loans to you (other than the then current
portions of the Note Amounts), short term debt and
other short term liabilities.
(iv)permit your and the Other Client's
Cumulative Pre-Tax Operating
Earnings (net income or loss-taken as a cumulative
whole-and amortization of goodwill before taxes,
from operations only, excluding (x) gains or losses
from the sales of assets and (y) extraordinary
items), on a combined basis, to be less than the
following amounts for the periods indicated:
PeriodAmount
01/01/97 to 09/30/97 $18,000,000
01/01/97 to 12/31/97 25,000,000
01/01/98 to 03/31/98 3,000,000
01/01/98 to 06/30/98 5,000,000
01/01/98 to 09/30/98 7,000,000
01/01/98 to 12/31/98 10,000,000
01/01/99 to 03/31/99 2,000,000
01/01/99 to 06/30/99 3,000,000
01/01/99 to 09/30/99 4,000,000
01/01/99 to 12/31/99 5,000,000
01/01/00 to 03/31/00 -0-
provided that, notwithstanding anything to the
contrary contained herein, your and the Other
Client's
Cumulative Pre-Tax Operating Earnings (as defined
above), on a combined basis, shall not be less
than (A) commencing with the fiscal quarter beginning
October 1, 1997, $6,500,000 during any one
fiscal quarter occurring in fiscal year 1997, (B)
$3,000,000 during any one fiscal quarter occurring
in fiscal year 1998 and (C) $2,000,000 during any
one fiscal quarter occurring in fiscal year 1999.
(v)permit your and the Other Client's Capital
Expenditures to exceed the
following applicable amounts during the years
indicated:
PeriodAmount
1997 - $2,000,000
1998 - 1,000,000
1999 - 1,000,000
(vi)incur or permit to exist any indebtedness
or guaranty by you of the
obligations of any other entity, except that you and
the Other Client, on a combined basis may incur
(i) unsecured debt to suppliers in the ordinary
course of your business; (ii) such other indebtedness
and guaranties, if any, which are subordinated in our
favor on terms and conditions acceptable to us;
(iii) indebtedness to us, and guaranties to us of the
Obligations to us of others, including, but not
limited to, the Other Client and American Marketing
Works, Inc., and (iv) unsecured debt for Capital
Expenditures but only to the extent permitted by
Paragraph 11(a)(v) hereof.
(vii)pay or permit the payment (either with
Advances, loans or other
amounts, if any, extended to you under either this
agreement or with any other funds) on account of
your capital stock now or hereafter outstanding of,
for or on account of any indebtedness which is
the subject of any subordination agreement to which
you are a party unless you give us (i) advance
written notice of the proposed payment, and (ii)
financial and other statements, in form and substance
acceptable to us, certified by your Chief Financial
Officer, confirming that before and after giving
effect to such payment, you are and will be in
compliance with all of the provisions of the
agreement
and that no event has occurred or will have occurred
which, with or without notice or the passage
of time, would constitute a breach or default under,
or would permit us to terminate this agreement.
(b)you will give us
(i)twice in each calendar year (but not more
than six months shall elapse
between the first and second report in each calendar
year) a physical count of your inventory
observed by an independent public accountant
acceptable to us in a manner consistent with
procedures followed in connection with the
certification of your annual financial statements;
(ii)not later than five (5) business days after
the end of each week, fifteen
business days after the close of each month and
twenty (20) business days after the close of each
quarter, inventory designations certified by your
Chief Financial Officer or Treasurer, all in form and
substance satisfactory to us;
(iii)from time to time at our request financial
projections in form and
substance satisfactory to us;
(iv)prompt written notice of any breach or
default under this agreement
or any of your Obligations to us, or any other
agreement material to your business (including but
not
limited to all license agreements relating to
inventory), your failure to comply with any
applicable law,
rule or regulation of any governmental agency having
jurisdiction, and the commencement by or
against you of any suit, action or proceeding of a
civil, criminal or an administrative nature. We may,
but shall not be obligated to cure any such breach or
default and, if elect to do so, you will on demand
reimburse us for the cost thereof;
(v)within 30 days after the close of each
month, except January, and
within 45 days after the close of January and each of
the first three quarters in each of your fiscal
years consolidated and consolidating balance sheets
of you and your subsidiaries as at the end of such
month or quarter, respectively, and the related
consolidated and consolidating statements of income,
retained earnings and statement of cash flows of you
and your subsidiaries for the elapsed portion of
the fiscal year ended with the last day of such month
or quarter, respectively, setting forth in each
case in comparative form the figures for the
corresponding periods of the previous fiscal year,
each
of which shall be accompanied by a certificate of
your Chief Financial Officer in form and substance
satisfactory to us;
(vi)within 90 days after the end of each of
your fiscal years, consolidated
and consolidating balance sheets of you and your
subsidiaries as at the end of such fiscal year and
the
related consolidated and consolidating statements of
income, retained earnings and statement of cash
flows of you and your subsidiaries for such fiscal
year, setting forth in comparative form the figures
as at the end of and for the previous fiscal year, in
each case certified by independent certified public
accountants of recognized standing satisfactory to
us, whose certificates shall be in scope and
substance satisfactory to us. Together with such
financial statements you shall deliver a certificate
of your Chief Financial Officer in form and substance
satisfactory to us and a certificate of such
accountants addressed to us (x) stating that you are
authorized to deliver such financial statements
and their certifications thereof to us pursuant to
this agreement and that they have caused this
agreement to be reviewed and that, in making the
examination necessary for the certification of such
financial statements, nothing has come to their
attention to lead them to believe that any default
hereunder or breach hereof exists, or, if such is not
the case, specifying such default or breach and
its nature, when it occurred and whether it is
continuing and (y) having attached the calculations
required to establish whether or not you and your
subsidiaries were in compliance with the covenants
contained in paragraph 11(a)(ii) through 11(a)(v).
(vii)such other reports as and when we
reasonably request
(c)you will cause each licensor of any
trademark, trade style, copyright or other
property (collectively "Properties") you use or will
use in your business under licenses heretofore
granted to enter into an agreement with us, in form
and substance acceptable to us, giving us such
rights as we may request with respect to the
Properties in connection with your inventory. With
respect to future such licenses, you will use your
best efforts to cause the licensors to enter into
such
agreements with us when or before you enter into such
licenses, provided that, if after exercise of
your best efforts you are unable to cause the
licensors to enter into the aforementioned agreements
with us, when or before you enter into such licenses,
you shall nevertheless cause each such licensor
to execute and deliver such an agreement with us
within 90 days after you have entered into a license
with each such licensor. You will at all times be in
full compliance with, and perform timely all of
your obligations under your agreements with each such
licensor.
00.XXXXX OF PAYMENT; NEW YORK LAW AND COURT
(a)All Obligations shall be paid at our office
in New York, New York.
(b)This agreement shall be governed by and
construed according to the laws of
the State of New York. All terms used herein, unless
otherwise defined herein, shall have the
meanings given in the New York Uniform Commercial
Code.
(c)Each of us expressly submits and consents to
the exclusive jurisdiction of the
Supreme Court of the State of New York, and the
United States District Court for the Southern
District of New York, with respect to any controversy
arising out of or relating to this agreement or
any supplement hereto or to any transactions in
connection therewith and hereby waives personal
service of the summons, complaint or other process or
papers to be issued therein and hereby agrees
that service of such summons, complaint, process or
papers may be made by registered or certified
mail addressed to the other party at the address
appearing herein.
13.REPORTS; RECORDS; ASSURANCES; WAIVERS;
REMEDIES; ETC.
(a)We may at all times during business hours
have access to, and inspect, audit,
and make extracts from, all of your records, files
and books of account, and we may charge your
account with the costs, fees or expenses incurred in
connection therewith and our then standard
charges for each examiner or auditor.
(b)You shall perform all acts requested by us
to perfect and maintain our security
interest and other rights in the Collateral.
(c)Failure by us to exercise any right, remedy
or option under this agreement or
delay by us in exercising the same will not operate
as a waiver; no waiver by us will be effective
unless we confirm it in writing and then only to the
extent specifically stated.
(d)We may charge to your account, when incurred
by us, the amount of
reasonable legal fees (including fees, expenses and
costs payable or allocable to attorneys retained
or employed by us) and other costs, fees and expenses
incurred by us in negotiating or preparing this
agreement and any legal documentation required by us
or requested by you in connection with this
agreement or any amendments or supplements thereof,
or in enforcing our rights hereunder or in
connection with the litigation of any controversy
arising out of this agreement, or in protecting,
preserving or perfecting our interest in, any
Collateral, including without limitation all taxes
assessed
or payable with respect to any Collateral, and the
costs of all public record filings, appraisals and
searches relating to any Collateral. We may file
Financing Statements under the Uniform Commercial
Code without your signature or, if we so elect, sign
and file them as your agent.
(e)Our rights and remedies under this agreement
will be cumulative and not
exclusive of any other right or remedy we may have
hereunder or under the Uniform Commercial
Code or otherwise. Without limiting the foregoing,
if we exercise our rights as a secured party we
may, at any time or times, without demand,
advertisement or notice, all of which you hereby
waive,
sell the Collateral, or any part of it, at public or
private sale, for cash, upon credit, or otherwise, at
our sole option and discretion, and we may bid or
become purchaser at any such sale, free of any right
of redemption which you hereby waive. After
application of all Collateral to your Obligations (in
such order and manner as we in our sole discretion
shall determine), you shall remain liable to us for
any deficiency.
(f)We shall have no liability hereunder (i) for
any losses or damages (including
indirect, special or consequential damages) resulting
from our refusal to assume, or delay in assuming,
the Credit Risk, or any malfunction, failure or
interruption of communication facilities, or labor
difficulties, or other causes beyond our control; or
(ii) for indirect, special or consequential damages
arising from accounting errors with respect to your
account with us. Our liability for any default by
us hereunder shall not exceed a refund to you of any
commission paid by you during the period
starting on the occurrence of the default and ending
when it is cured or waived, or when this
agreement is terminated, whichever is earlier.
(g)THIS AGREEMENT CANNOT BE CHANGED OR
TERMINATED
ORALLY AND IS FOR THE BENEFIT OF AND BINDING UPON THE
PARTIES AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS. HOWEVER, YOU MAY
NOT ASSIGN ANY
OF YOUR RIGHTS HEREUNDER WITHOUT OUR PRIOR WRITTEN
CONSENT. THIS
AGREEMENT, AND ANY CONCURRENT OR SUBSEQUENT WRITTEN
SUPPLEMENTS
THERETO OR AMENDMENTS THEREOF SIGNED BY BOTH OF US,
REPRESENT OUR
ENTIRE UNDERSTANDING AND SUPERSEDE ALL INCONSISTENT
AGREEMENTS AND
COMMUNICATIONS, WRITTEN OR ORAL, BETWEEN YOUR AND OUR
OFFICERS,
EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES. THERE
ARE NO ORAL
AGREEMENTS BETWEEN THE PARTIES. YOU HEREBY
ACKNOWLEDGE AND AGREE
THAT THE STATEMENT SET FORTH IN THIS SUBPARAGRAPH (g)
SATISFIES THE
REQUIREMENTS OF SECTION 26.02 OF THE BUSINESS AND
COMMERCE CODE OF THE
STATE OF TEXAS AND SHALL BE DEEMED INCORPORATED INTO
THE AGREEMENT
AND ALL OTHER APPROPRIATE AGREEMENTS BY YOU WITH, TO
OR IN OUR FAVOR.
(h)This agreement shall not be effective unless
signed by you below, and signed
by us at the place for our acceptance.
(i)TO THE EXTENT LEGALLY PERMISSIBLE, BOTH YOU
AND WE
WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY LITIGATION
RELATING TO
TRANSACTIONS UNDER THIS AGREEMENT, WHETHER SOUNDING
IN CONTRACT,
TORT OR OTHERWISE.
(j)References herein to written notice shall
include but shall not be limited to
notice by telecopier, mail, messenger or any courier
service.
(k)This agreement is subject in all respect to
the Forbearance Agreement. In the
event of any conflict of any term or provision of
this agreement with any term or provision of the
Forbearance Agreement, the term or provision of the
Forbearance Agreement shall control.
Very truly yours,
BNY FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
Title: President
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
AGREED TO as of the 30th day of January, 1998.
ATTEST:
BIG BALL SPORTS, INC.
By: /s/ Xxxxx Xxxxxxxx
Title: President
[SEAL]
Acknowledgement and Agreement
Each of the undersigned, each an "Other Client"
referenced to and defined in the foregoing
Factoring Agreement between BNY Financial Corporation
and Big Ball Sports, Inc. ("Factoring
Agreement"), hereby acknowledges each of the terms
and provisions of the foregoing Factoring
Agreement.
SIGNAL APPAREL COMPANY, INC.
THE SHIRT SHED, INC.
By: /s/ Xxxxx X. Xxxxxxxx
Title: CEO of Signal Apparel Company, Inc.
of each
President of The Shirt Shed, Inc.
