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EXHIBIT 10.2
AMENDED AND RESTATED
COLLECTION DATE FACTORING AGREEMENT
This Amended and Restated Collection Date Factoring Agreement (this
"AGREEMENT"), dated and effective as of the Effective Date, is entered into
between XXXXXX FINANCIAL, INC. ("XXXXXX"), with offices at 000 X. Xxxxx
Xxxxxxxxx, Xxxxxxxx, XX 00000, Telecopy No: (000) 000-0000, and THE SIRENA
APPAREL GROUP, INC. ("CLIENT"), whose address is 00000 Xxxxx Xxxxxx, Xxxxx Xx
Xxxxx, Xxxxxxxxxx 00000, Telecopy No. (000) 000-0000, and will constitute the
terms upon which Xxxxxx will act as the sole factor of Client.
This Agreement shall amend and restate in its entirety that certain Factoring,
Credit and Security Agreement dated August 19, 1994 by and between Xxxxxx and
Client, as amended from time to time, and the security interests created
thereunder, and the perfection thereof, shall continue in full force and effect.
Capitalized terms used herein will have the meanings assigned to such terms in
Section 12 of this Agreement.
SECTION 1. SALE AND APPROVAL OF ACCOUNTS
1.1 Client does hereby sell, assign and transfer to Xxxxxx, and Xxxxxx
hereby agrees to purchase, certain of Client's Accounts, with full
power to Xxxxxx to collect and otherwise deal with such Accounts as
the sole and exclusive owner thereof.
1.2 (a) Client will submit for Xxxxxx'x credit approval the credit
requirements of Client's customers, a description of Client's normal
selling terms and such other information as Xxxxxx requests
concerning Client's customers. Xxxxxx may, in Xxxxxx'x sole credit
judgment, establish credit lines for sales to Client's customers on
Client's normal selling terms or on other selling terms approved by
Xxxxxx by Written Notice. Client may also submit for Xxxxxx'x credit
approval specific orders from Client's customers and Xxxxxx may, in
Xxxxxx'x sole credit judgment, approve such orders on a single order
credit approval basis. All of Xxxxxx'x credit approvals will be
delivered to Client by Written Notice and/or Transmission.
(b) Xxxxxx may amend or withdraw a credit line or single order credit
approval at any time prior to Delivery by notifying Client verbally
and/or by Written Notice or Transmission. A single order credit
approval will be automatically withdrawn: (i) in the event Delivery
is not made on or prior to the expiration date indicated on the
single order credit confirmation form Xxxxxx sends to Client by
Written Notice or Transmission; or (ii) in the event any change is
made in any of the terms of the Account without Xxxxxx'x prior
approval by Written Notice or Transmission.
(c) Xxxxxx will have no liability to Client or to any customer for
Xxxxxx'x refusal to credit approve an Account or Xxxxxx'x withdrawal
or amendment of a credit approval.
1.3 Xxxxxx will assume the Credit Risk on all Approved Accounts. Xxxxxx
will have full recourse to Client for all Non-Approved Accounts.
1.4 In the event that monies are at any time owing by a customer for both
Approved Accounts and Non-Approved Accounts, any amount when paid by
or credited to the customer will be applied as follows:
(a) If Xxxxxx issued single order approvals, all amounts paid by or
credited to the customer will be deemed applied first to Approved
Accounts.
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(b) If Xxxxxx established a credit line for such customer and if the
credit line was in force at the time amounts were received from or
credited to the customer, such amounts will be deemed applied first
to Non-Approved Accounts. If the credit line is canceled, any amount
thereafter received or credited will be deemed applied first to
Approved Accounts.
1.5 So long as any credit approval to any particular customer remains
outstanding, all Accounts to such customer, whether or not Approved
Accounts, will be assigned to Xxxxxx
1.6 If a bankruptcy or insolvency proceeding is instituted by or against
a customer and if Xxxxxx agrees by Written Notice to Client to make a
claim in such proceeding for Non-Approved Accounts, all amounts
distributed to Xxxxxx in such proceeding will be shared pro rata
between Approved Accounts and Non-Approved Accounts.
SECTION 2. PAYMENT AND FEES
2.1 As payment for an Account, (a) the Collected Amount of the Purchase
Price of an Account will be credited to Client's account on the first
Monday after the Collection Date and (b) if an Approved Account which
remains partially or fully unpaid solely as a result of the financial
inability of the customer thereon to pay such Approved Account and if
such Account is not subject to a Dispute, the Purchase Price of such
Approved Account less any Collected Amounts previously credited to
Client's account with respect to such Approved Account will be
credited to Client's account on the first Monday after the Approved
Payment Date for such Approved Account. The payments, when credited
to Client's account, shall first be applied to all interest and other
amounts due Xxxxxx hereunder.
2.2 At the time Xxxxxx purchases an Account, Xxxxxx will charge Client's
account with a factoring commission of 0.625% of the Net Amount of
the Account in the first Contract Year, and 0.60% of the Net Amount
of the Account in the second Contract Year and thereafter. On
Accounts bearing payment terms in excess of sixty (60) days, the
factoring commission will be increased by one quarter of one percent
(0.25%) for each thirty (30) days or part thereof that the stated
terms exceed sixty (60) days and on credit approved High Risk
Accounts, the factoring commission will be increased by the Standard
Surcharge.
2.3 During each Contract Year Client agrees to pay Xxxxxx factoring
commissions of at least the amounts set forth below ("MINIMUM ANNUAL
COMMISSION"). If during any Quarter of a Contract Year the aggregate
of factoring commissions paid by Client is less than the respective
amount set forth below ("MINIMUM QUARTERLY COMMISSION"), then Client
will pay to Xxxxxx, or Xxxxxx may charge Client's account with, an
amount equal to the difference between the Minimum Quarterly
Commission and the factoring commissions actually paid during that
Quarter ("DEFICIENCY CHARGE"). If at the end of any Quarter Client
exceeds the Minimum Annual Commission, the Minimum Quarterly
Commission will be waived for the remainder of the Contract Year, and
any Deficiency Charges paid during such Contract Year that are not
required to attain the Minimum Annual Commission will be credited to
Client's account. If Client terminates this Agreement at any time
during a Contract Year or if Xxxxxx terminates this Agreement at any
time during a Contract Year upon the occurrence of an Event of
Default, Client will nevertheless remain obligated to pay the Minimum
Annual Commission for such Contract Year.
MINIMUM ANNUAL MINIMUM QUARTERLY
PERIOD COMMISSION COMMISSION
------ ---------- ----------
First Contract Year $375,000 $ 93,750
Second Contract Year $480,000 $120,000
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Third Contract Year and each
Contract Year thereafter $600,000 $150,000
2.4 Client will pay to Xxxxxx or Xxxxxx may charge Client's account with
(i) wire transfer fees on all wire transfers; (ii) all data
transmission telephone charges relating to Transmissions; (iii)
exchanges on checks, charges for returned items and all other bank
charges; (iv) all Costs; (v) all other amounts owing by Client to
Xxxxxx under the Agreement; and (vi) all other Obligations. Client
will also pay to Xxxxxx or Xxxxxx may charge Client's account with
the sum of $25,000.00 for Xxxxxx'x efforts and services in connection
with the negotiation, preparation and conclusion of this Agreement.
SECTION 3. INTEREST AND COLLECTION CLEARANCE CHARGE
3.1 Client will pay Xxxxxx interest on all Obligations, except those
specifying a different rate, from the date incurred through the date
paid. Interest will be calculated daily at a rate per annum equal to
2% plus the Base Rate (the "INTEREST RATE") and will be charged to
Client's account monthly at the end of each month. Any publicly
announced decrease or increase in the Base Rate will result in an
adjustment to the Interest Rate on the next Business Day. After the
occurrence of an Event of Default and for so long as such Event of
Default continues, all the Obligations will, at Xxxxxx'x option, bear
interest at a rate per annum equal to three percent (3.0%) plus the
Interest Rate. Interest will be calculated on the basis of a 360-day
year for the actual number of days elapsed. In no event will the
total amount of interest received by Xxxxxx pursuant to the terms of
this Agreement exceed the maximum rate permitted by applicable law
and in the event excess interest is determined by a court of
competent jurisdiction to have been paid by Client to Xxxxxx, such
excess interest will be applied as a credit against the outstanding
Obligations and Client will not have any action against Xxxxxx for
any damages arising out of the payment or collection of such excess
interest.
3.2 To allow for collection clearance on all checks and other payments
remitted by Client's customers, Client will, in addition to interest,
pay Xxxxxx each month a collection clearance charge based on four (4)
business days for that month's collections at the Interest Rate.
Xxxxxx will charge Client's account at the end of each month for the
collection clearance charge.
3.3 If funds remain with Xxxxxx past the first Monday after the Payment
Date, and there are no outstanding Obligations ("matured funds"),
Xxxxxx will credit Client's account with interest on such matured
funds at the rate per annum equal to the Base Rate minus three
percent (3.0%).
3.4 If an Account or any payment is charged back to Client after the
first Monday after the Payment Date, Client will pay Xxxxxx interest
at the Interest Rate on the Net Amount of such Account or on such
payment from the Payment Date to the charge back date.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 Client represents, warrants and covenants as to each Account that, at
the time of its sale and assignment to Xxxxxx, the Account is a
valid, bona fide account, representing an undisputed indebtedness
incurred by the named customer for goods actually sold and delivered
or for services completely rendered; the Account is payable in United
States dollars; there are no setoffs, offsets, counterclaims or other
defenses, genuine or otherwise, to the payment or collection of the
Account; the Account does not represent a sale to any of Client's
subsidiaries, affiliates, directors, officers, agents, stockholders,
or employees, or a consignment sale, guaranteed sale, or xxxx and
hold transaction, or a cash on delivery
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sale; no agreement exists permitting any deduction or discount (other
than the discount stated on the invoice); Client is the lawful owner
of the Account and has the right to sell and assign the same to
Xxxxxx; the Account is free of all security interests, liens and
encumbrances (including tax liens) other than those in favor of
Xxxxxx and those in favor of Foothill Capital Corporation, and the
Account is due and payable in accordance with its terms.
4.2 Client will not grant or suffer to exist in favor of any party other
than Xxxxxx any lien upon or security interest in Client's inventory,
other than the liens of Foothill Capital Corporation.
4.3 Client is a solvent corporation, duly incorporated and in good
standing under the laws of the State of Delaware and qualified in all
States where such qualification is required; the execution, delivery
and performance of this Agreement have been duly authorized and are
not in contravention of any applicable law, Client's corporate
charter or by-laws or any agreement or order by which Client is
bound; Client is not, to the best of Client's knowledge, in violation
of any law, ordinance, rule, regulation, order or other requirement
of any government or any instrumentality or agency thereof.
4.4 Client will not change Client's corporate name or the location of
Client's office or open any new offices without giving Xxxxxx at
least thirty (30) days prior Written Notice. At the present time,
Client carries on business only at the above address and the
addresses set forth below.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xx 00000
00000 Xxxxx Xxxxxx, Xxxxx Xx Xxxxx, Xx
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xx Xxxxx, Xx
0000 Xxxxxxxx , Xxx Xxxx, Xxx Xxxx
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xx
000 X.X. 00Xx Xxxxxx, Xxxxx, Xxx
0000 Xxxxxxxx Xxxxxxx, Xxxxxx, Xx
4.5 All books and records pertaining to the Accounts or to any inventory
owned by Client will be maintained solely and exclusively at the
above address or the addresses listed in Section 4.4 hereof and no
such books and records will be moved or transferred without giving
Xxxxxx thirty (30) days prior Written Notice.
4.6 After Xxxxxx'x request, Client will hold all returned, replevined or
reclaimed goods relating to Accounts coming into Client's possession
in trust for Xxxxxx and all such goods will be segregated and
identified as held in trust for Xxxxxx'x benefit and Client will, at
Xxxxxx'x request, and at Client's expense, deliver such goods to such
place or places as Xxxxxx may designate.
4.7 The trade names or styles set forth below are the only trade names or
styles under which Client transacts business or has transacted
business during the last five (5) years; Accounts sold to Xxxxxx
hereunder and represented by invoices bearing such trade names or
styles are wholly owned by Client; the undertakings, representations
and warranties made in connection therewith will be identical to and
of the same force and effect as those made with respect to invoices
bearing Client's corporate name; Client's use of any trade names or
styles is in compliance with all laws regarding the use of such trade
names or styles. Client will give Xxxxxx thirty (30) days prior
Written Notice of the change of any trade name or style or Client's
use of any new trade name or style.
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Sirena Jezebel
Sirena Kids Liz Claiborne Swimwear
Xxxx Xxxxx Swimwear Look & Sea
Body Jewels by Jezebel Rose Xxxxx Xxxx
Hang Ten Xxxxx of Hollywood
Hot Water WearAbouts
Client hereby assigns, transfers, and conveys to Xxxxxx, effective
upon the occurrence of any Event of Default hereunder, the
non-exclusive right and license to use all trade names, marks and
styles owned or used by Client together with any goodwill associated
therewith, all to the extent necessary to enable Xxxxxx to realize on
any assets of Client in which Client has granted Xxxxxx a security
interest. Such right and license is granted free of charge without
requirement that any monetary payment whatsoever be made to Client or
any third party by Xxxxxx.
4.8 Client may, in the ordinary course of business, issue, grant or allow
discounts, credits and allowances on Accounts to customers and accept
returns until Xxxxxx notifies Client to the contrary by Written
Notice or Transmission. Such discounts, credits or allowances once
issued may be claimed only by the customer. Client will promptly
issue and assign to Xxxxxx all full invoice credit memos and promptly
notify Xxxxxx of any other credit memos.
4.9 To the best of Client's knowledge, (a) there are no judgments
outstanding against or affecting Client, its officers, directors or
affiliates or any of Client's property, (b) there are no actions,
charges, claims, demands, suits, proceedings, or governmental
investigations now pending or threatened against Client or any of
Client's property, and (c) none of Client's inventory has been
produced in violation of the Fair Labor Standards Act or any similar
law, nor imported in violation of any United States customs
regulation.
4.10 Client agrees that no provision in this Agreement and no course of
dealing between the parties shall be deemed to create any fiduciary
duty by Xxxxxx to Client. Client agrees that neither Xxxxxx nor any
of Xxxxxx'x affiliates, officers, directors, shareholders, employees,
attorneys, or agents shall have any liability with respect to, and
Client hereby waives, releases, and agrees not to xxx any of them
upon, any claim for any special, indirect, incidental, consequential
or punitive damages suffered or incurred by Client in connection
with, arising out of, or in any way related to this Agreement or any
of the transactions contemplated by this Agreement.
4.11 Client has made an assessment of the microchip and computer-based
systems and the software used in its business and based upon such
assessment believes that it will be "Year 2000 Compliant" by January
1, 2000. For purposes of this paragraph, "Year 2000 Compliant" means
that all software, embedded microchips and other processing
capabilities utilized by, and material to the business operations or
financial condition of Client are able to interpret, store, transmit,
receive and manipulate data involving all calendar dates correctly
and without causing any abnormal ending scenarios in relation to
dates in and after the Year 2000. From time to time, at the request
of Xxxxxx, Client shall provide to Xxxxxx such updated information as
is requested regarding the status of its efforts to become Year 2000
Compliant.
SECTION 5. DISPUTES, CHARGEBACKS AND RESERVES
5.1 With respect to any Account, upon the occurrence of a breach of
any of the representations or warranties contained in Section 4.1, or
upon the assertion by a customer of a Dispute, such Account may, at
Xxxxxx'x option, be charged back to Client. In the event Client does
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not, within fifteen (15) days of Xxxxxx'x request, deliver to Xxxxxx
a copy of the invoice and such other information as Xxxxxx requests
relating to an Account with respect to which information was
transmitted to Xxxxxx through Transmission, Xxxxxx will have the
right to charge back such Account to Client.
5.2 Client will promptly notify Xxxxxx, by Written Notice, in the event
that a customer alleges any Dispute, or returns or desires to return
any goods purchased from Client relating to an Account. After an
Event of Default, Xxxxxx may but is not obligated to settle,
compromise, adjust or litigate all such Disputes or returns upon such
terms as Xxxxxx deems advisable. If an unadjusted Dispute delays the
payment of any Approved Account when due, Xxxxxx will have the right
to charge back to Client that Account.
5.3 Client will supply customers, in the format required by customers,
with all forms, documents, certificates, etc. that customer requires
to process the Account for payment. If Xxxxxx notifies Client
verbally and/or by Written Notice or Transmission that a customer
which only accepts invoices for payment from Client through
Transmission is requesting that Client review its invoice data for
correctness and re-transmit invoices by Transmission and if after
thirty (30) days from the date of such Notice such invoices remain
unposted to such customer's records, Xxxxxx will place the Accounts
evidenced by such invoices in Dispute.
5.4 Xxxxxx may, at Xxxxxx'x option, charge back to Client all amounts
owing on Non-Approved Accounts which are not paid when due.
5.5 Client will pay Xxxxxx, or Xxxxxx may charge Client's account with,
the amount of any payment which Xxxxxx receives with respect to a
Non-Approved Account if such payment is subsequently disgorged by
Xxxxxx, whether as a result of any proceeding in bankruptcy or
otherwise.
5.6 Client shall purchase promptly all Accounts charged back by Xxxxxx,
provided, however, that until payment by Client to Xxxxxx of all
monies due with respect to such charged back Account, title thereto
shall remain with Xxxxxx. At such time as Client shall pay to Xxxxxx
all monies due with respect to such charged back account, title shall
pass to Client subject, however, to Xxxxxx'x security interest
therein. Client agrees to indemnify and save Xxxxxx harmless from and
against any and all loss, costs and expenses caused by or arising out
of disputed Accounts, including, but not limited to, collection
expenses and attorney's fees incurred with respect thereto.
5.7 Xxxxxx may maintain such reserves as Xxxxxx, in Xxxxxx'x sole
discretion, deems advisable as security for the payment and
performance of the Obligations, including, without limitation,
reserves for the amount of any Account which is subject to a Dispute.
SECTION 6. ADMINISTRATION
6.1 Client will, from time to time, (i) execute and deliver to Xxxxxx
confirmatory schedules of Accounts assigned to Xxxxxx (each an
"ASSIGNMENT SCHEDULE"), together with one copy of each invoice,
acceptable evidence of shipment and such other documentation and
proofs of delivery as Xxxxxx may require or (ii) transmit to Xxxxxx
by Transmission information concerning Accounts in a format
acceptable to Xxxxxx and, upon Xxxxxx'x request, deliver to Xxxxxx
copies of invoices, acceptable evidence of shipment and such other
documentation and proofs of delivery as Xxxxxx may require relating
to Accounts so transmitted. Client will not deliver Assignment
Schedules in connection with Transmissions, but Client acknowledges
and agrees that every invoice transmitted to Xxxxxx by Transmission
will be
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deemed to have been sent pursuant to the terms and conditions of an
Assignment Schedule. Each invoice relating to an Account and all
copies and Transmissions thereof will bear a notice, in form
satisfactory to Xxxxxx, that the Account has been sold and assigned
to and is payable only to Xxxxxx. Client agrees that Client will not
change such notice on invoices and will not direct its customers to
pay Client or any third party amounts due under invoices. Client
agrees to prepare and mail (or when required, send by Transmission)
all invoices relating to Accounts, but Xxxxxx may do so at Xxxxxx'x
option. Client agrees to execute and deliver to Xxxxxx such further
instruments of assignment, financing statements and instruments of
further assurance as Xxxxxx may reasonably require. Client authorizes
Xxxxxx to execute on Client's behalf and file such UCC financing
statements as Xxxxxx may deem necessary in order to perfect and
maintain the security interests granted by Client in accordance with
this Agreement. Client further agrees that Xxxxxx may file this
Agreement or a copy thereof as such UCC financing statement.
6.2 If any remittances are made directly to Client or Client's employees
or agents, Client will act as trustee of an express trust for
Xxxxxx'x benefit, hold the same as Xxxxxx'x property and deliver the
same to Xxxxxx forthwith in kind. Xxxxxx and/or such designee as
Xxxxxx may from time to time appoint are hereby appointed Client's
attorney-in-fact to endorse Client's name on any and all checks or
other forms of remittances received by Xxxxxx where such endorsement
is required to effect collection and to transmit notices to
customers, in Client's or Xxxxxx'x name, that amounts owing by them
have been assigned and are payable directly to Xxxxxx; this power,
being coupled with an interest, is irrevocable.
6.3 Client shall permit Xxxxxx and any representatives designated by
Xxxxxx to visit and inspect any of the properties of Client,
including its financial and accounting records, and to make copies
and take extracts therefrom, and to discuss its affairs, finances,
and business with its officers at such times during normal business
hours and as often as Xxxxxx requests. Xxxxxx may, at any time after
the occurrence of an Event of Default, remove from Client's premises
all such records, files and books relating to Accounts.
6.4 If Xxxxxx determines that the credit standing of a customer has
deteriorated after Xxxxxx has assumed the Credit Risk on an Account,
Client will, at Xxxxxx'x request, exercise such rights as Client may
have to reclaim or stop the goods in transit, and Client hereby
grants to Xxxxxx the right to take such steps in Client's or Xxxxxx'x
name.
6.5 Xxxxxx will render a monthly statement of account to Client within
twenty (20) days after the end of each month. Such statement of
account will constitute an account stated and Client agrees to be
bound by the contents thereof unless Client makes objection thereto
by Written Notice within one hundred eighty (180) days from the date
such statement is rendered to Client.
6.6 Client will maintain a system of accounting established and
administered in accordance with sound business practices to permit
preparation of financial statements in conformity with GAAP. Client
will promptly furnish Xxxxxx with such statements prepared by or for
Client showing Client's financial condition and the results of
Client's operations as Xxxxxx requests verbally or by Written Notice.
Client authorizes Xxxxxx to communicate directly with Client's
independent certified public accountants and authorizes such
accountants to discuss Client's financial condition and financial
statements directly with Xxxxxx.
6.7 Client authorizes Xxxxxx to disclose such information as Xxxxxx deems
appropriate to persons making credit inquiries about Client.
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6.8 Xxxxxx will maintain a High Risk Accounts list which shall designate
all customers that are subject to a surcharge and the amount of such
surcharge. A current copy of the list will be available to Client at
any time upon request; however, the list is subject to change at any
time. All single order approvals on high risk customers will specify
"subject to surcharge".
SECTION 7. COLLATERAL SECURITY
As collateral security for all Obligations, Client hereby assigns and grants to
Xxxxxx a continuing security interest in all of the following property, whether
now owned by Client or hereafter created or acquired by Client or arising in
Client's favor: (i) Accounts other than Non-Factored Accounts; (ii) monies,
securities and other property now or hereafter held or received by, or in
transit to Xxxxxx from or for Client, whether for safekeeping, pledge, custody,
transmission, collection or otherwise, and all of Client's deposits, reserves,
and credit balances in Xxxxxx'x possession; (iii) books, records and other
property at any time evidencing or relating to any of the foregoing property;
and (iv) proceeds of any of the foregoing property including, without
limitation, the proceeds of any insurance policies covering any of the foregoing
property. Recourse to the collateral security herein provided will not be
required, and Client will at all times remain liable for the payment and
performance of the Obligations upon demand by Xxxxxx.
SECTION 8. EVENTS OF DEFAULT
The occurrence of any of the following acts or events will constitute an Event
of Default: (a) if Client fails to make payment of any of the Obligations when
due; (b) if Client fails to make any remittance required by this Agreement; (c)
if Client commits any breach of any of the terms, representations, warranties,
covenants, conditions or provisions of this Agreement, or of any present or
future supplement or amendment hereto or of any other agreement between Xxxxxx
and Client; (d) if Client becomes insolvent or unable to meet Client's debts as
they mature; (e) if Client fails to pay when due any material obligations or
liabilities owing by Client to any person or entity (including without
limitation, any United States and state taxes); (f) if Client delivers to Xxxxxx
a false financial statement or if any representation, warranty, certification,
or other statement made by Client to Xxxxxx is false in any material respect
when made; (g) if Client calls, or has called by a third party, a meeting of
creditors; (h) if any bankruptcy proceeding, insolvency arrangement or similar
proceeding is commenced by or against Client; (i) if Client suspends or
discontinues doing business for any reason; (j) if a receiver or trustee of any
kind is appointed for Client or any of Client's property; (k) if any guarantor
of Client's Obligations dies or becomes insolvent or has commenced by or against
such guarantor any bankruptcy proceeding, insolvency arrangement or similar
proceeding; (l) if any guaranty of Client's Obligations is terminated or any
guarantor alleges that the guaranty is unenforceable, or if there is a default
under any such guaranty; (m) if there shall be a change in the beneficial
ownership and control, directly or indirectly, of the majority of the
outstanding voting securities or other interests entitled (without regard to the
occurrence of any contingency) to elect or appoint members of the board of
directors or other managing body of Client; (n) if a notice of lien, money
judgment, levy, assessment, seizure or writ, or warrant of attachment is entered
or filed against Client or with respect to the Accounts or any other collateral
in which Client has granted Xxxxxx a security interest in an amount in excess of
$500,000; or (o) if Client sells, leases, transfers or otherwise disposes of all
or substantially all of Client's property or assets, or consolidates with or
merges into or with any corporation or entity.
Client shall have the following cure periods for the following Events of
Default:
(8.1) Client shall have a cure period of five days from the applicable
due date for payment or remittance under subparts (a) and (b)
above.
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(8.2) Client shall have a cure period of sixty days from the
commencement of any meeting or proceeding under subpart
(g) to the extent the meeting was not called by Client,
(h) to the extent Client did not commence the proceeding,
and (k) to the extent such guarantor did not commence the
proceeding.
If Client fails to cure or have cured an Event of Default for which there is a
cure period within the applicable cure period, Xxxxxx will have the right to
terminate this Agreement and all other arrangements existing between Client and
Xxxxxx forthwith and without notice, and the Obligations will mature and become
immediately due and payable and Xxxxxx will have the right to withhold any
further payments to Client until all Obligations have been paid in full. In
addition Xxxxxx will have all of the rights of a secured party under the UCC,
including, without limitation, the right to take possession of any collateral in
which Xxxxxx has a security interest and to dispose of same at public or private
sale and Client will be liable for any deficiency. Xxxxxx will not be required
to proceed against any collateral but may proceed against Client directly.
If either party to this Agreement shall bring any action for any relief against
the other, declaratory or otherwise, arising out of this Agreement, the losing
party shall pay to the prevailing party a reasonable sum for attorney fees
incurred in bringing such suit and/or enforcing any judgment granted therein,
all of which shall be deemed to have accrued upon the commencement of such
action and shall be paid whether or not such action is prosecuted to judgment.
Any judgment or order entered in such action shall contain a specific provision
providing for the recovery of attorney fees and costs incurred in enforcing such
judgment. For the purposes of this section, attorney fees shall include, without
limitation, fees incurred in the following: (1) postjudgment motions; (2)
contempt proceedings; (3) garnishment, levy, and debtor and third party
examinations; (4) discovery; and (5) bankruptcy litigation.
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SECTION 9. TERM AND TERMINATION
This Agreement will continue in force and effect for an original term of three
(3) years from the Effective Date and from year to year thereafter, but may be
terminated at the end of the original term or at the end of any subsequent one
year term by either Xxxxxx or Client giving the other party not less than sixty
(60) days prior Written Notice thereof; provided, however, that Client will not
terminate this Agreement so long as Client is indebted or obligated to Xxxxxx in
connection with any other agreements between Xxxxxx and Client.
Notwithstanding any such Written Notice of termination, Client's and Xxxxxx'x
respective rights and obligations arising out of transactions having their
inception prior to the date of termination of this Agreement will not be
affected by the termination of this Agreement and all terms, provisions and
conditions hereof, including but not limited to, the security interests
hereinabove granted to Xxxxxx (including Xxxxxx'x security interest in Accounts
arising, acquired or created after the date of termination of this Agreement),
will continue in full force and effect until all Obligations have been paid in
full. All of the representations, warranties, indemnities and covenants made by
Client herein (including without limitation the undertaking set forth in Section
5.5 hereof) will survive the termination of this Agreement.
SECTION 10. MODIFICATIONS, WAIVERS, NOTICES AND MISCELLANEOUS PROVISIONS
This Agreement embodies the entire agreement among the parties hereto and
supersedes all prior commitments, agreements, representations, and
understandings, whether written or oral, relating to the subject matter hereof,
and may not be contradicted or varied by evidence of prior, contemporaneous, or
subsequent oral agreements or discussions of the parties hereto. This Agreement
will be binding upon Client's and Xxxxxx'x respective successors and assigns,
but may not be assigned by Client without Xxxxxx'x prior written consent. No
delay or failure on Xxxxxx'x part in exercising any right, privilege, or option
hereunder will operate as a waiver thereof or of any other right, privilege or
option. No waiver whatsoever will be valid unless in a Written Notice, signed by
Xxxxxx, and then only to the extent therein set forth. If any term or provision
of this Agreement is held invalid under any statute, rule or regulation of any
jurisdiction competent to make such a decision, the remaining terms and
provisions will not be affected, but will remain in full force and effect.
Any Written Notice to be given under this Agreement will be in writing addressed
to the respective party as set forth in the heading to this Agreement (or such
other address as may have been designated in a Written Notice) and will be
personally served, telecopied or sent by overnight courier service or United
States mail and will be deemed to have been given: (a) if delivered in person,
when delivered; (b) if delivered by telecopy, on the date of transmission if
transmitted on a Business Day before 4:00 p.m. Los Angeles time or, if not, on
the next succeeding Business Day; (c) if delivered by overnight courier, two (2)
days after delivery to such courier properly addressed; or (d) if by U.S. Mail,
four (4) Business Days after depositing in the United States mail, with postage
prepaid and properly addressed.
Xxxxxx conducts business under California Finance Lender License number
603-2495.
SECTION 11. GOVERNING LAW, VENUE AND WAIVER OF JURY
APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
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CONSENT TO JURISDICTION. CLIENT HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE
OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA
AND IRREVOCABLY AGREES THAT, SUBJECT TO XXXXXX'X ELECTION, ALL ACTIONS OR
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN
SUCH COURTS. CLIENT EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. CLIENT HEREBY
WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE
OF PROCESS MAY BE MADE UPON CLIENT BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, ADDRESSED TO CLIENT, AT THE ADDRESS SET FORTH IN THIS
AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS
BEEN POSTED.
WAIVER OF JURY TRIAL. CLIENT AND XXXXXX HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT. CLIENT AND XXXXXX ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THE
WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON
THE WAIVER IN THEIR RELATED FUTURE DEALINGS. CLIENT AND XXXXXX WARRANT AND
REPRESENT THAT EACH HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH
LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS.
SECTION 12. DEFINITIONS
"Accounts" -- All presently existing or outstanding and all hereafter created or
acquired accounts (as that term is defined in the UCC) and all contract rights,
documents, notes, drafts, instruments and other forms of obligations owed to or
owned by Client arising or resulting from the sale of goods or the rendering of
services by Client, all general intangibles relating thereto, all proceeds
thereof, all guaranties and security therefor, and all goods and rights
represented thereby or arising therefrom, including, but not limited to,
returned, reclaimed and repossessed goods and the rights of stoppage in transit,
replevin and reclamation.
"Approved Account" -- An Account representing a sale to a customer within the
credit line established for such customer on Client's normal selling terms or
within the single order credit approval given by Xxxxxx for orders from such
customer provided that Delivery is completed while the credit line or single
order credit approval remains in effect and which has not been charged back to
Client.
"Approved Payment Date" -- The date which is one hundred twenty (120) days after
the due date for payment of an Approved Account.
"Base Rate" -- The rate of interest publicly announced from time to time by Bank
of America National Trust and Savings Association as its Prime, Base or
equivalent rate.
"Business Day" -- Any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the States of Illinois, Pennsylvania, or
California or is a day on which banking institutions located in any such state
are closed.
"Collected Amount" -- The amount received by Xxxxxx from a customer in payment
of an Account up to the Net Amount of such Account.
"Collection Date" -- The date on which Xxxxxx receives payment of an Account.
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"Contract Year" -- The twelve month period commencing on the Effective Date or
any anniversary thereof.
"Costs" -- All costs fees and expenses (including attorney's fees and the
allocated costs of internal counsel) incurred by Xxxxxx in connection with (i)
the creation, negotiation or administration of this Agreement, any related
instrument, document or agreement, or any waiver, forbearance, amendment or
modification thereof (ii) the perfection, protection, preservation or
enforcement of Xxxxxx'x rights in any collateral in which Xxxxxx has been
granted a security interest and (iii) all filing fees, filing taxes or search
reports.
"Credit Risk" -- The risk that a customer will be financially unable to pay an
Account at maturity, provided that the merchandise has been received or services
rendered and accepted by the customer without Dispute.
"Delivery" -- The delivery of goods or performance of services in accordance
with the terms agreed to in writing between Client and a customer, provided that
if no such terms are specified in writing, delivery shall mean delivery of goods
or performance of services at the customer's place of business.
"Dispute" -- A dispute or claim, bona fide or otherwise, as to price, terms,
quantity, quality, Delivery, or any claim or defense to collection or payment of
an Account whatsoever other than the financial inability of a customer to pay
the Account.
"Effective Date" -- The date set forth below Xxxxxx'x signature hereto.
"GAAP" -- Generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board that are applicable to the circumstances as of the
date of determination.
"Xxxxxx Clients" -- Any persons, corporations, partnerships, companies,
associations or entities (other than Client) which have entered into factoring,
intercredit or financing agreements with Xxxxxx.
"High Risk Accounts" -- the Accounts that are due from customers that are
designated by Xxxxxx as high credit risk.
"Ledger Debt" -- Indebtedness owing by Client to Xxxxxx as a result of Xxxxxx'x
purchases of invoices evidencing sales to Client by Xxxxxx Clients.
"Net Amount" -- The gross amount of an Account less the discount offered by
Client and taken by Xxxxxx at the time Xxxxxx purchases such Account.
"Non-Approved Account" -- (a) An Account with respect to which Xxxxxx has not
issued a credit approval or has subsequently withdrawn a credit approval or (b)
an Approved Account that has been charged back to Client.
"Non-Factored Account"-- all Accounts that are not purchased by Xxxxxx pursuant
to this Agreement.
"Obligations" -- All loans, debts, liabilities, obligations, covenants and
duties owing by Client to Xxxxxx, direct or indirect, absolute or contingent,
due or to become due, now existing or hereafter arising, including, without
limitation, Ledger Debt and indebtedness arising under any guaranty made by
Client for Xxxxxx'x benefit or issued by Xxxxxx on Client's behalf.
"Payment Date" -- The Collection Date or the Approved Payment Date as
applicable.
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"Purchase Price" -- An amount equal to the Net Amount of an Account, less
factoring commissions, credits (including, without limitation, merchandise
returns and credit memos), charge backs, allowances, and all other fees and
charges provided hereunder.
"Standard Surcharge" -- the surcharge rate designated on the High Risk Accounts
list.
"Transmission" -- Transmission through Xxxxxx'x proprietary system or through
Electronic Data Interchange.
"UCC" -- The Uniform Commercial Code as in effect on the date hereof in the
State of California, as amended from time to time, and any successor statute.
"Written Notice" -- Notice given in writing in accordance with Section 10 of
this Agreement.
In Witness Whereof, the undersigned have caused this agreement to be executed
and delivered by their thereunto duly authorized officers as of the Effective
Date.
XXXXXX FINANCIAL, INC. THE SIRENA APPAREL GROUP, INC.
By: /s/ X. X. XXXXXXXX By: /s/ XXXXXXX XXXXXXX
------------------------------- ---------------------------
Name: X. X. Xxxxxxxx Name: Xxxxxxx Xxxxxxx
Title: S.V.P. Title: CFO
Effective Date: April 22, 1999
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