EXHIBIT 10.6
[LETTER HEAD OF CIT GROUP]
THE
CIT
GROUP
February 13, 1996
Happy Kids, Ltd.
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
NOTIFICATION FACTORING AGREEMENT
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Ladies and Gentlemen:
We are pleased to confirm the terms and conditions that shall govern
our collected funds accounting factoring arrangement with you.
1. SALE OF ACCOUNTS
1. You hereby sell, assign and transfer to us, and we hereby
purchase as absolute owner, all of your accounts receivable created by or
arising from the sale of goods or rendition of services by you (referred to
herein collectively as the "Accounts", individually as an "Account"). This
includes, without limitation, all sales made and services rendered under any of
your trade names or styles or through any of your divisions.
2. CREDIT APPROVAL
2.1 Credit approval of all orders shall be requested from our Credit
Department via computer, in accordance with procedures more particularly
described in the Client Service Guide which we have provided to you, and any
modifications or revisions thereof or supplements thereto which we may hereafter
provide to you (herein the "Guide"). Orders may be submitted by either: (i) On-
Line Terminal Access, in accordance with the procedures more particularly
described in the appropriately marked section of the Guide, or (ii) Electronic
Batch Transmission, in accordance with the procedures more particularly
described in the supplement to the Guide referred to as the Guide to Batch Data
Communications. We shall assume the Credit Risk (the customer's failure to pay
an invoice representing an Account in full when due at its longest maturity
because of its financial inability to do so) on each Account with respect to
which the shipment of goods or rendition of services represented thereby has
been credit approved by our Credit Department in writing, and with respect to
which the customer actually receives and finally accepts delivery of the goods
or services. Without our prior written consent,
you shall not change the amount, terms, shipping or delivery dates with respect
to any shipment of goods or rendition of services, or any invoice relating
thereto, whether or not approved by us as to credit, or grant any other
indulgence with respect thereto (other than accepting returns and granting
allowances as provided in paragraph 8 hereof). Credit approval of any shipment
of goods or rendition of services may be withdrawn by us any time before, but
not after, delivery is made and we shall provide you with a written confirmation
of any such withdrawal. Credit approvals shall be effective only if shipment is
made or services are rendered within thirty (30) days from the completion date
specified in the approval. We shall have no liability whatsoever to you or to
any person, firm or entity for not credit approving, or for withholding or
withdrawing credit approval of, any order pursuant to the terms of this
Agreement. In the event that we decline to credit approve an order from a
customer and, in connection therewith, furnish any information to you regarding
the credit standing of the customer in explanation of our decision, such
information shall be privileged and confidential and shall not be given by you
to the customer, your salesperson or any third party; however, you may advise
such party that any questions relating thereto may be directed to us.
2.2 To indicate credit decisions by our Credit Department each day,
we shall send to you a computer generated Credit Decisions Report. The Credit
Decisions Report shall constitute the official record of our written credit
approvals. All information and exhibits contained in the Guide or on any screen
accessed by you, or any print-outs, reports, statements or notices received by
you are, and shall remain, our exclusive property and shall not be disclosed to
or used by anyone other than you, in whole or part, except after obtaining the
express written permission of an authorized officer of the undersigned.
2.3 Accounts and portions of Accounts on which we bear the Credit
Risk shall be referred to herein collectively as "Factor Risk Accounts", and
individually as a "Factor Risk Account". Accounts and portions of Accounts on
which you bear the risk as to credit shall be referred to herein collectively as
"Client Risk Accounts", and individually as a "Client Risk Account".
3. INVOICING
3. Each of your invoices shall bear a notice (in form and content
approved by us) that the Account represented thereby has been sold, assigned and
transferred to us, and is owned by and payable only to us. All invoices shall be
mailed by you to your customers at your expense. You shall provide us with
copies of all invoices, and with such confirmation of the transfer of Accounts
to us and such proof of order, shipment or delivery as we may require. Your
printed name or rubber stamp signature on invoices and confirmatory assignment
schedules shall have the same legal effect as a manual signature by one of your
authorized officers or agents. Should you for any reason defer shipment of goods
which you have sold and invoiced to a customer (such sales are also known as
bill and hold sales) you shall: so advise us promptly, submit all relevant
details to us, and comply with such conditions as we deem necessary as a
prerequisite to our handling the Accounts arising therefrom on our books.
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4. REPRESENTATIONS AND WARRANTIES
4.1 You hereby represent and warrant that: each Account is based
upon an actual and bona fide sale and delivery of goods or rendition of services
to customers, made by you in the ordinary course of your business; the goods and
inventory being sold and the Accounts created are your exclusive property and
are not and shall not be subject to any lien, consignment arrangement,
encumbrance, security interest or financing statement whatsoever, other than in
our favor and in favor of the Agent as defined in the Financing Agreement dated
as of February 13, 1996, as amended (the "Financing Agreement"), among us,
certain of our affiliates, certain lenders and us, in our capacity as Agent (or
such Lenders); your customers have accepted the goods or services, owe and are
obligated to pay the full amounts stated in the invoices according to their
terms, without dispute, claim, offset, defense, deduction, recoupment,
counterclaim or contra account (any of the foregoing being referred to herein as
a "Customer Claim"); all amounts are due in United States Dollars; all original
invoices bear notice of the assignment and transfer to us; any taxes or fees
relating to your Accounts or goods are solely your responsibility; and none of
the Accounts factored with us hereunder represent sales to any subsidiary,
parent or affiliated company of yours.
4.2 You also warrant and represent that: you are a duly organized
and validly existing corporation, qualified to do business in all states where
required; there are no actions, suits or legal proceedings of any kind or nature
pending against you; and the most recent financial statements provided to us by
you accurately state your financial condition and there has been no material
adverse change in your financial condition since the date of said financial
statements. You shall maintain such books and records concerning the Accounts as
we may require and agree that they will reflect our ownership of the Accounts.
You shall furnish us with such information concerning your business affairs and
financial condition as we may request from time to time, and shall promptly
notify us of any change in your name, chief executive office, chief executive
officer, place(s) of business, corporate or business structure, or in the
ownership of the stock of your corporation.
5. PURCHASE OF ACCOUNTS
5. We shall purchase the Accounts for the gross amount of the
respective invoices, less factoring fees or commissions relating thereto, trade
and cash discounts allowable to your customers and credits and allowances (the
"Purchase Price of Accounts"). Our purchase of the Accounts shall be reflected
on the Statements of Account which we shall render to you, and such statements
shall also reflect all credits and discounts made available to your customers
(whether or not taken) and anticipation earned by your customers. A more
detailed description of these and all other accounting procedures used hereunder
is contained in the Guide.
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6. ADVANCES
6. Although we do not expect to make advances to you prior to the
collection of Accounts, we shall have the right to do so, which right may be
exercised by us in our sole discretion at any time. We shall have the right to
hold any reserve we deem necessary as security for the payment and performance
of any and all of your Obligations, as herein defined. All amounts owing to us
by you, including, without limitation, any advances which may be made to you
prior to shipment and any debit balance in your Client Position Account (as
defined below) shall be payable to us on demand.
7. PAYMENT OF ACCOUNTS
7.1. Checks and other proceeds received by us in payment of Accounts
will be applied to your account with us after crediting your customer's account.
The Purchase Price of Accounts for Accounts with respect to which such
remittances have been received and applied by us, less any amounts chargeable
by us hereunder, will be transferred and disbursed to you each business day;
however, we shall debit your account monthly with the cost of two (2) additional
business day on all such payments. No checks, drafts or other instruments
received by us shall constitute final payment of Accounts unless and until such
instruments have actually been collected. At our option, we may send to you, at
any time and without prior notice to you, any credit balance in your Funds-in-
Use Account (as defined below).
7.2 With respect to any Factor Risk Account which remains unpaid,
the Purchase Price of Accounts relating thereto shall be credited to your
account as follows:
(a) as of the date of the Account's longest
maturity, if such customer: makes an assignment for the
benefit of creditors; calls a meeting of its customers,
institutes any proceeding to compromise or adjust its
debts, or if any proceeding or petition is filed or
instituted by or against such customer for relief under
any State or Federal bankruptcy or insolvency law, or if
a receiver or trustee is appointed for the customer; or
(b) as of the one hundred-twentieth day
following its longest maturity date, if such Account
remains unpaid as of said date without the happening of
any of the events specified in (a) hereinabove.
Should it subsequently be determined that any Factor Risk Account credited to
your account with us was not paid for any reason other than the customer's
financial inability to do so, we shall reverse the credit and debit your account
accordingly.
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8. CUSTOMER CLAIMS AND CHARGEBACKS
8. You shall notify us promptly of any matter affecting the value,
enforceability or collectability of any Account and of all Customer Claims,
returns and rejections. You shall issue credit memoranda promptly upon accepting
returns or granting allowances, (and upon our request, send duplicates and/or
confirm the assignment of such credit memoranda to us), and may continue to do
so until we have notified you that such credits or allowances are to be made
only after our prior written approval. We shall have the right to adjust
Customer Claims directly with customers, upon such terms as we in our sole
discretion may deem advisable, but shall not be required to do so. We shall
cooperate in the adjustment of Customer Claims, but may at any time debit or
charge back to your account the amount of: (a) any Factor Risk Account which is
not paid in full when due for any reason other than the customer's financial
inability to do so; (b) any Factor Risk Account which is not paid in full when
due because of an act of God, civil strife, war and the like, whether or not
such occurrence results in financial inability to do so; (c) any anticipation
taken or Customer Claim asserted with respect to any Factor Risk Account; (d)
any Client Risk Account which is not paid in full on its due date; and (e) any
Account with respect to which we determine that there has been a breach of any
representation or warranty hereunder. Such debit or chargeback shall not
constitute a reassignment to you of the Account involved. Any deduction taken by
a customer shall be charged back to your account immediately, and we may at any
time debit or charge back to your account the amount of: (i) payments we receive
on Client Risk Accounts which we are required thereafter to turnover or return;
(ii) any and all expenses and attorneys' fees incurred by us in collecting or
attempting to collect any Account charged back to you or any Obligation
hereunder; and (iii) any expenses incurred by us as a result of remittances made
by customers on Client Risk Accounts that are not finally paid, for whatever
reason. Further, we shall be entitled to (A) place any Client Risk Account with
a collection agency or attorney for collection or settle any such Client Risk
Account provided that we provide you with twenty-four (24) hours prior notice of
such action and (B) charge you a reasonable fee for each Client Risk Account
which we may place with a collection agency or attorney for collection, which
fee shall be charged to your account in addition to any fees or expenses of such
collection agency or attorney.
9. HANDLING AND COLLECTION OF ACCOUNTS AND RETURNED GOODS
9.1 As owners and assignees of the Accounts, we shall have the
right to bring suit or otherwise enforce collection, in your name or ours, and
generally shall have all other rights respecting said Accounts, including,
without limitation, the right to: accelerate or extend the time of payment,
modify the terms of payment, settle, compromise, release in whole or in part any
amounts owing, and issue credits in your name or ours. To the extent applicable,
you hereby waive any and all claims and defenses based on suretyship. If monies
are due and owing from a customer for both Factor Risk Accounts and Client Risk
Accounts, you agree that any payments received in respect of any such Accounts
may be applied first to the Factor Risk Accounts, regardless of any notation to
the contrary on payment items, and regardless of the due dates of such Accounts.
Once you have granted or issued a discount, credit or allowance, you shall have
no further interest therein. Any checks, cash, notes or other instruments,
proceeds or property
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received by you with respect to any Accounts shall be held by you in trust for
us, separate from your own property and funds, and immediately turned over to us
with proper assignments or endorsements. We may endorse or sign your name or
ours on any checks or other instruments or documents with respect to Accounts or
the goods covered thereby.
9.2 At any time that we so request, and immediately upon the
occurrence of an Event of Default (as defined below) or upon termination of this
Agreement, any and all returned, reclaimed or repossessed inventory and goods
shall be set aside by you, marked with our name and held by you in trust for us
as owner, and for our account. Further, upon the occurrence of any of the
foregoing, you shall promptly notify us of all such inventory and goods and
deliver the same to us, pay us the invoice price thereof or sell the same for
our account and remit the full proceeds to us.
10. STATEMENTS OF ACCOUNT
10. After the end of each month, we shall send to you one or more
reports showing the accounting for sales, charges, advances and other
transactions between us during that month (herein the "Reports"). The Reports
sent to you each month will include, among other things, a Statement of Account
reflecting transactions in an accounts receivable account (the "Accounts
Receivable Account"), a client position account (the "Client Position Account")
and a funds-in-use account (the "Funds-In-Use Account"), which accounts shall be
established on our books in your name. All financial transactions between us
will be reflected on these monthly Reports. The monthly Reports shall be deemed
correct and binding upon you and shall constitute an account stated between us,
unless we receive a written statement of your exceptions within thirty (30) days
after the date the same are mailed to you.
11. GRANT OF SECURITY INTEREST
11. In addition to the sale of Accounts hereunder, and without the
necessity of any further formality, writing or evidence, you hereby transfer and
assign to us and grant us a security interest in all of your right, title and
interest in and to all of your now existing and future: (a) accounts receivable
(whether or not the same constitute Accounts purchased by us hereunder),
instruments, documents, chattel paper, general intangibles (including, without
limitation, all federal, state and local income tax refunds), and any and all
other forms of obligations owing to you; (b) unpaid seller's rights (including
rescission, repossession, replevin, reclamation and stoppage in transit)
relating to any of the foregoing or arising therefrom; (c) rights to any goods
represented by any of the foregoing, including returned or repossessed goods;
(d) reserves and credit balances arising hereunder; (e) guarantees or collateral
for any of the foregoing (including, without limitation, rights under any
letters of credit or other credit enhancements in your favor); (f) insurance
policies or rights relating to any of the foregoing; (g) bank deposits and
accounts; (h) cash and non-cash proceeds of any and all of the foregoing; and
(i) Books and Records (as defined below in paragraph 13) evidencing or
pertaining to any of the foregoing. (It is understood that we shall have no
obligation to perform in any respect, any
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contracts relating to any Accounts). You shall comply with the requirements of
all applicable laws to perfect our security interest in collateral granted to us
hereunder, and execute such financing statements and other documents as we may
require to effectuate the foregoing and implement this Agreement. To the extent
permitted by applicable law, you hereby authorize us to sign your name on your
behalf on financing statements covering the collateral and to file financing
statements without your signature in order to perfect or maintain our security
interest in the collateral.
12. OBLIGATIONS SECURED
12. The security interest granted hereunder, and any lien or
security interest that we may have in any of your other assets or property,
shall secure the payment and performance of all of your now existing and future
indebtedness and obligations to us, whether absolute or contingent, and whether
arising hereunder or under any other agreement or arrangement between us, or by
operation of law or otherwise, including, without limitation, indebtedness for
goods and services purchased by you from any party whose accounts receivable are
factored or financed by us, and indebtedness arising under any guaranty, credit
enhancement or other credit support executed by you in our favor (herein
"Obligations"). Any reserves or balances to your credit and any other property
or assets of yours in our possession shall constitute security for any and all
Obligations. We may, in our discretion, debit your account at any time with the
amount of any and all Obligations.
13. BOOKS AND RECORDS AND EXAMINATIONS
13. You agree: to make your records, files and books of account
(including, without limitation, paper records, computer-based data, records or
media, electronic records, tapes, discs, etc., and all programs and procedure
manuals relating thereto) (all of the foregoing referred to herein as "Books and
Records") available to us on request; to permit us to visit your premises during
business hours to examine the same and to make copies or extracts thereof; and
to conduct such examinations as we deem necessary. In order to cover costs and
expenses we may incur in connection with any such examinations, we shall be
entitled to charge you a fee for each day or part thereof during which such
examination is conducted, which fee shall be charged to your account, in
addition to any out-of-pocket costs and expenses we incur as a result of
conducting said examinations.
14. INTEREST, FACTORING FEES OR COMMISSIONS AND OTHER CHARGES
14.1 Interest shall be charged as of the last day of each month on
the debit balance in your Funds-In-Use Account each day during that month. (The
amount that appears in your Funds-In-Use Account is the difference between the
balance in your Accounts Receivable Account and the balance in your Client
Position Account.) Interest shall be calculated at a rate of
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one percent (1%) per annum above the "Chemical Rate", based on the eight and
one-half percent (8 1/2%) per annum "Chemical Rate" as of January 2, 1996. The
Chemical Rate is the per annum rate of interest publicly announced by Chemical
Bank in New York, New York from time to time as its prime rate. (The prime rate
is not intended to be the lowest rate of interest charged by Chemical Bank to
its borrowers.) Any change in the rate of interest hereunder due to a change in
the Chemical Rate shall take effect as of the first of the month following such
change in the Chemical Rate. Interest shall be calculated based on a 360 day
year. Interest shall be credited as of the last day of each month on any credit
balance in your Funds-In-Use Account each day during that month, at a rate four
percent (4%) per annum below the Chemical Rate being used to calculate interest
hereunder for the period. In no event, shall the rate charged hereunder exceed
the highest rate permitted under applicable law. In the event, however, that we
do receive interest hereunder in excess of the highest rate permissible, you
agree that your sole remedy shall be to seek repayment of such excess, and you
hereby waive any and all other rights and remedies which may be available to you
under law or in equity.
14.2 For our services hereunder, we shall be entitled to a factoring
fee or commission of fifty-five hundredths of one percent (.55%) on the gross
face amount of all Accounts factored with us, plus one-quarter of one percent
(1/4 of 1%) of the gross face amount of each Account for each thirty-day period
or part thereof by which the longest terms of sale applicable to such Account
exceed 60 days (whether as originally stated or as a result of a change of terms
requested by you or the customer). In addition, with respect to Accounts arising
from sales to customers located in United States territorial possessions, we
shall be entitled to an additional factoring fee or commission of one percent
(1%) on the gross face amount of such Accounts. The factoring fee or commission
shall be due and charged to your account upon our purchase of the underlying
Account. The minimum factoring fee or commission on each invoice evidencing an
Account shall be $3.50. In no event shall the aggregate factoring fees or
commissions payable by you hereunder and by Talk of The Town Apparel Corp.,
O'Boy Inc. and O.P. Kids, L.L.C. under the separate Factoring Agreement between
each of them and us for each Period, or part thereof, be less than $456,000, and
the amount by which $456,000 exceeds factoring fees or commissions earned on
Accounts factored with us by you, Talk of The Town Apparel Corp., O'Boy Inc. and
O.P. Kids, L.L.C. shall be charged to your account. However, neither the
additional commission charged on Accounts arising from sales to customers
located in United States territorial possessions, nor any other surcharge or fee
now or hereafter charged by us with respect to any of your Accounts shall be
included in the calculation of actual commissions paid by you during any Period.
Nothing contained herein shall be construed as consenting to a termination of
this Agreement other than as provided herein. As used herein, the term Period
shall mean the twelve month period commencing on the first day of the first full
calendar month that this Agreement is in effect, and each such successive twelve
month period thereafter.
14.3 In addition to the foregoing, you shall pay all costs and
expenses incurred by us in connection with the preparation, execution,
administration and enforcement of this Agreement. including, without limitation,
all reasonable fees and expenses attributable to the services of our attorneys
(whether in-house or outside), all search fees and the cost of all public record
filings. Furthermore, you shall pay to us a reasonable fee for: (i) all special
reports prepared by us at your request; (ii) all wire transfers; (iii) handling
all change of terms requests relating to Accounts:
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(iv) the usage by you of our on-line computer services; and (v) each new
customer set-up on our accounts receivable data base, all as more fully
described in the Guide. All such fees shall be charged to your account and may
be changed by us from time to time upon notice to you.
14.4 If any tax by any governmental authority (other than income and
franchise taxes imposed on us which are not related to any transaction between
us) is or may be imposed on, or arises as a result of, any transactions between
us, any sales made by you, or any inventory or goods relating to such sales, and
we are or may be required to withhold or pay such tax and any interest or
penalties related thereto, you shall indemnify and hold us harmless in respect
thereof and pay to us the amount of any such tax, interest or penalties.
15. TERMINATION
15. You may terminate this Agreement for any reason whatsoever, but
only as of an Anniversary Date, as defined herein, and then only by giving us at
least sixty (60) days prior written notice of termination. We may terminate this
Agreement for any reason whatsoever at any time by giving you written notice
stating a termination date not less than sixty (60) days from the date such
notice is given, or immediately at any time without prior notice to you upon and
after the occurrence of an Event of Default (as defined below). This Agreement
continues uninterrupted unless terminated as herein provided. As used herein,
the term "Anniversary Date" shall mean the last day of the month occurring one
year from the date hereof or the same date in any year thereafter. Unless sooner
demanded, all Obligations shall become due and payable upon termination of this
Agreement and, pending a final accounting, we may withhold any balances in your
account unless supplied with an indemnity satisfactory to us to cover all
Obligations. All our rights, liens and security interests hereunder shall
continue and remain in effect after termination of this Agreement, whether said
termination is upon notice or as a result of the occurrence of an Event of
Default, and you shall continue to assign accounts receivable to us and to remit
to us all collections on accounts receivable, until all Obligations have been
paid in full or we have been supplied with an indemnity satisfactory to us to
cover all Obligations.
16. EVENTS OF DEFAULT AND REMEDIES UPON DEFAULT
16.1 An "Event of Default" shall be deemed to have occurred under
this Agreement upon: (a) the cessation of your business or the calling of a
meeting of your creditors; (b) your failure to meet your debts as they mature;
(c) the commencement by or against you of any bankruptcy, insolvency,
arrangement, reorganization, receivership or similar proceedings under any
federal or state law; (d) breach by you of any representation, warranty or
covenant contained herein; (e) your failure to pay any Obligation when due; or
(f) the occurrence of an event of default under the Financing Agreement.
16.2 Upon and after the occurrence of an Event of Default, this
Agreement may be terminated by us immediately at any time, without notice to
you, and all Obligations shall, at our option and without notice or demand of
any kind (all of which you hereby expressly waive),
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become due and payable immediately. Further, we may remove, from any premises
where the same may be located, any and all documents, instruments, Books and
Records (and any receptacles or cabinets containing the same) pertaining to the
Accounts or other collateral hereunder and/or we may use (at your expense) such
of your personnel, supplies and space at your place of business or elsewhere, as
may be necessary to properly administer and enforce our rights in the Accounts
and any other collateral hereunder, and to facilitate the collection thereof and
realization thereon. We may sell, assign or otherwise dispose of the Accounts
and any returned, reclaimed or repossessed inventory, goods or other property
relating thereto, whether held by you or by us, at public or private sale, for
cash, on credit or otherwise, at such price and on such terms as we in our sole
option and discretion may determine, and we may bid or become purchasers at any
such sale, or acquire an interest in or dispose of said property. You hereby
acknowledge that you have no right to notice, or to an accounting or right of
redemption with respect to any such sale or other disposition of the aforesaid
Accounts or aforesaid goods. With respect to any other property or collateral in
which we have a security interest, we shall have all of the rights and remedies
of a secured party under Article 9 of the Uniform Commercial Code. If notice of
intended disposition of any of said property or collateral is required by law,
it is agreed that five (5) days notice shall constitute reasonable notice. The
net cash proceeds resulting from the exercise of any of the foregoing rights,
after deducting all charges, costs and expenses (including reasonable attorneys'
fees) shall be applied by us to the payment or satisfaction of the Obligations,
whether due or to become due, in such order as we may elect, and you shall
remain liable to us for any deficiencies. Upon and after the occurrence of an
Event of Default, or in the event of a termination of this Agreement by us, we
are hereby authorized by you to notify postal authorities at any time to change
the address for delivery of mail to you to such address as we may designate, and
to receive and open mail addressed to you to enable us to carry out our rights
under this Agreement.
17. MISCELLANEOUS PROVISIONS
17.1 This Agreement, and all attendant documentation, as the same
may be amended from time to time, constitutes the entire agreement between us
with regard to the subject matter hereof, and supersedes any prior agreements or
understandings. Furthermore, unless specifically provided otherwise herein, this
Agreement can be changed only by a writing signed by both of us, and shall bind
and benefit each of us and our respective successors and assigns, provided,
however, that you may not assign this Agreement or your rights hereunder without
our prior written consent. Our failure or delay in exercising any right
hereunder shall not constitute a waiver thereof or bar us from exercising any of
our rights at any time. The validity, interpretation and enforcement of this
Agreement shall be governed by the laws of the State of New York.
17.2 If any provision of this Agreement (including, without
limitation, any provision relating to charges constituting interest payable by
you) is contrary to, prohibited by, or deemed invalid under applicable laws or
regulations, such provision shall be inapplicable and deemed omitted to the
extent so contrary, prohibited or invalid, but the remainder hereof shall not be
invalidated thereby and shall be given effect so far as possible.
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17.3 Paragraph headings are for convenience only and shall not be
deemed to be a controlling part of this Agreement.
18. JURY TRIAL WAIVER
18. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE EACH
HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING
DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT, OR ANY OTHER AGREEMENT OR
TRANSACTION BETWEEN US OR TO WHICH WE ARE BOTH PARTIES.
If the foregoing is in accordance with, and accurately reflects, your
understanding, please so indicate by signing and returning to us the original
and one copy of this Agreement. This Agreement shall take effect as of the date
set forth above, but only after being accepted below by one of our officers in
New York, after which, we shall forward your fully executed copy to you for your
files.
Very truly yours,
THE CIT GROUP/COMMERCIAL SERVICES,
INC.
By /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
Read and Agreed to:
HAPPY KIDS, LTD.
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: President
Accepted at: New York
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THE CIT GROUP/COMMERCIAL SERVICES,
INC.
By /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President
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