The CIT Group/BCC, Inc.
Suite 250-LB27
00000 Xxxxxx Xxxxxxx
Xxxxxx, XX 00000
Tel: 000 000 0000
Fax: 000 00x0000
April 10, 0000
XXX Xxxxxxxxxxxx xx Xxxxxxx, Ina.
0000 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
NOTIFICATION FACTORING AGREEMENT
--------------------------------
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 customers 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
Not. CF Adv.
2/7/95
A company of
Dai- Ichi Tango Bank and
Chemical Banking Corporation
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 8.1
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. 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.
Notwithstanding anything to the contrary contained herein, we shall not assume
the Credit Risk on any Account or portion thereof arising from freight charges,
sales of sample merchandise, sales of merchandise not regularly sold by you,
sales of merchandise which is not in the form or quantity of merchandise
normally sold by you, or on any Account represented by an invoice, although all
such Accounts shall be purchased by and assigned to us as provided herein. 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. 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", 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", individually as a "Client Risk Account".
Not. OF Adv.
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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
xxxx 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.
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; 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
Not. CF Adv.
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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.
6. ADVANCES
6. At your request, we may in our sole discretion, make advances to you
prior to the collection of Accounts, subject to our right to hold any reserves
we deem necessary as security for the payment and performance of any and all of
your Obligations, as defined herein. 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. We may send to you at any time any credit balance in
your Funds-In-Use Account (as defined below), without prior notice to you.
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;
however, we shall debit your account monthly with the cost of three (3)
additional business days on all such amounts. The foregoing shall be computed at
the rate charged by us on debit balances, as set forth in paragraph 14.1 hereof.
No checks, drafts or other instruments received by us shall constitute final
payment of an Account unless and until such instruments have actually been
collected.
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) if the customer in question makes an assignment for the benefit
of creditors, calls a meeting of its creditors, 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, then, when the later of the following occurs: the
longest due date of the
Not. CF Adv.
2/7/95
Account, or at such time as we become aware that one of the
events specified above has occurred; or
(b) if none of the events specified in (a) above has occurred, then,
when the later of the following occurs: the longest due date of
the Account, or at such time as we become aware that the customer
has become financially unable to pay.
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.
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 (including, but not limited to, non-payment due to acts of
God, civil strife, war and the like), or any anticipation taken or Customer
Claim asserted with respect to any Factor Risk Account; (b) any Client Risk
Account which is not paid in full on its due date; and (c) 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 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 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 which will
reflect transactions in three accounts: 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"). 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.
Not. CF Adv.
2/7/95
11. GRANT OF SECURITY INTEREST
11.1 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 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 in our favor (herein
"Obligations"). Any reserves or balances to your credit and any other property
or assets of yours in 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 the greater of seven percent
(7%) per annum or a rate of one and one-quarter percent (1/4) per annum above
the "Chemical Rate", based on the nine percent (9%) per annum "Chemical Rate" as
of March 1, 1995. 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 three percent (3~) 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 as follows: (a) sixty-five hundredths of one percent (.65~) on the
gross face amount of all Accounts arising from sales to Customers listed on
Exhibit A (attached hereto) and (b) eight tenths of one percent (.8~) on the
gross face amount of all Accounts arising from all other sales 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
Not. OF Adv.
2/7/95
longest terms of sale applicable to such Account exceed ninety (90) 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.
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; and (iv) the usage by you of our
on-line computer services. 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; or (e) your failure to pay any Obligation when due.
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), 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.
Not. OF Adv.
2/7/95
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.
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/ Xxxxx Xxxxxxxx
----------------------
Name: Xxxxx Xxxxxxxx
Title: S.V.P.
Read and Agreed to:
DAC TECHNOLOGIES OF AMERICA, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxx
Title: President
Accepted at: New York, New York
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
EXHIBIT A
Target Stores XxXxxx Company, Inc.
Minneapolis, MN Subsidiary of Wal-Mart Stores, Inc.
Bentonville, AR
Wal-Mart Stores, Inc. General Motors Corporation
Bentonville, AR Detroit, MI
Walgreen Company Sears, Xxxxxxx and Company
Danville, IL Hoffman Estates, IL
Army and Air Force Exchange Xxxxxxxxxx Xxxx Co.
Dallas, TX Chicago, IL
Xxxx Xxxxx Incorporated Xxxxxxx Department Stores, Inc.
Portland, OR Little Rock, AR
K Mart Corporation X. X. Xxxxxx Co., Inc.
Troy, MI Plano, TX
Lowes Companies, Inc. The Pep Boys-Manny, Moe & Xxxx (Inc.)
North Wilkesboro, NC Philadelphia, PA
Mercantile Stores
Fairfield, OH
American Drug Stores
(OSCO Drug)
Franklin Park, IL
Longs Drug Stores, Inc.
Antioch, CA
Builders Square Division of K Mart
Corporation San Antonio, TX
THE CIT GROUP/COMMERCIAL SERVICES /s/ [ILLEGIBLE]
DAC TECHNOLOGIES OF AMERICA, INC. /s/ [ILLEGIBLE]
Suite 250-LB27
00000 Xxxxxx Xxxxxxx
Xxxxxx, XX 00000
Tel: 000 000 0000
Fax: 214 786-0a47
The CIT Group/BCC, Inc. April 10, 0000
XXX Xxxxxxxxxxxx xx Xxxxxxx, Inc.
0000 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Re: Customer Surcharge Letter Agreement
-----------------------------------
Ladies and Gentlemen:
We refer to the Factoring Agreement between us, as supplemented and amended
(herein the "Agreement").
This shall confirm our mutual understanding and agreement that, notwithstanding
anything to the contrary contained in the Agreement, all of your accounts
receivable arising from sales to the customers listed on the attached Schedule
and their respective divisions, trade names, affiliates and subsidiaries,
including but not limited to those listed on the Schedule (herein "Customers",
all such accounts being referred to herein as "Customer Accounts") shall be
subject to the following terms and conditions:
a. Only those sales to the Customers that are made by you on terms of sale not
exceeding thirty (30) days, will be eligible for credit approval under the
Agreement.
b. We shall charge your account with a Surcharge based on the gross face
amount of each Customer Account approved by us as to credit whose terms of
sale do not exceed 30 days, at the surcharge rate applicable to the
Customer involved, as set forth on the attached Schedule. The Surcharge
shall be in addition to any other fees or commissions we are entitled to
charge you under the Agreement, and shall be due and charged to your
account in the same manner as commissions are charged thereunder.
c. You shall continue to request credit approval from our Credit Department on
all orders from each Customer, as per the Agreement. Any Customer Account
whose terms of sale exceed thirty (30) days or which has not been approved
by us as to credit as per the Agreement, shall be at your sole Credit Risk.
d. All payments that we receive from any Customer prior to the commencement of
any liquidation of all or substantially all of its assets, or prior to the
commencement by or against it of any
case under Chapter 7 or Chapter 11 (as applicable) of the Bankruptcy Code
(herein a "Liquidation"), shall be applied by us in accordance with our
normal procedures. If at the commencement of a Liquidation with respect to
any Customer, there are any Customer Accounts on our books at your Credit
Risk, as well as Customer Accounts on our books at our Credit Risk, then
any dividends or other payments that we receive relating to any such
Customer Accounts shall be applied in reduction of the outstanding amounts
of all such Customer Accounts at your and our Credit Risk, in proportion to
the percentage of your and our Credit Risk on such Customer Accounts.
Except as herein specifically provided, the Agreement remains in full force and
effect in accordance with its terms. If you are in agreement with the foregoing,
please so indicate by signing and returning to us the enclosed copy of this
letter.
Very truly yours,
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By /s/ [ILLEGIBLE]
----------------------------
Name:
Title: S.V.P.
Read and Agreed to:
XXX TECHNOLOGIES OF AMERICA, INC.
By /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
Schedule
--------
To Customer Surcharge Letter Agreement
Customer
(And Divisions, Tradenames, Affiliates and Surcharge Rate
Subsidiaries)
X. Xxxxx and Co., Inc. - D.I.P. 1%
Xxxxxx'x - D.I.P.
CFTC Group, Inc. - D.I.P. 1%
Canadian Fur Trappers Corporation, Inc. D.I.P.
XxXxxxx Corporation - D.I.P. 1%
XxXxxxx Stores Division - D.I.P.
Masters, Inc. - D.I.P. 3%
Lady Rose - D.I.P.
Lord Xxxx - D.I.P.
Central Textile - D.I.P.
The Xxxxxx Xxx Companies, Inc. - D.I.P. 3%
Xxxxxx Xxxxx Division - D.I.P.
Xxxxxx Xxxxx Division - D.I.P.
Breckenridge Division - D. I. P.
Xxxxxxxxxxx Knit. Division - D.I.P.
Xxxx Xxxxxx Division - D.I.P.
Xxxxxx Xxx Dress Division - D.I.P.
L. Xxx Evenings Division - D.I.P.
Xxxxxx Xxx Intimates Division - D.I.P.
Xxxxxx Xxx Sportswear Division - D.I.P.
Outlander Division - D.I.P.
Sassco Fashions - D.I.P.
Xxxx Xxxxx Division - D.I.P.
Xxxxxxxxxx Corp., a subsidiary of The Xxxxxx Xxx 3%
Companies,
Inc., - D.I.P.
HUE, Inc., a subsidiary of The Xxxxxx Xxx 3%
Companies,
Inc., - D.I.P.
Piece Goods Shops - D.I.P. 3%
Bill's Dollar Stores, Inc., - D.I.P. 3%
Roses Stores, Inc. - D.I.P 3%
d/b/a Roses
Brendles Stores, Inc. - D.I.P. 3%
Carlisle Retailers Inc. - D.I.P. 3%
d/b/a Carlisle-And-First, Carlisle's, Carlisle
Clothing and The Alley
Gantos Inc. - D.I.P. 3%
d/b/a Gantos Stores, Inc. - D.I.P.
Craig's Stores of Texas Inc. - D.I.P. 3%
d/b/a Xxxxx'x xxx Xxxxxxx Xxxxxx
Broadway Stores, Inc. 1%
d/b/a The Broadway, Broadway Southwest, Emporium
Xxxxxxx and Xxxxxxxxx'x
Xxxxx-Go-Round Enterprises, Inc - D.I.P. 3%
d/b/a MGR Distribution Corp. - D.I.P, and MGRR,
Inc. - D.I.P.
Xxxxxxxx & Xxxxxxx, Incorporated - D.I.P. 3%
Xxxx Xxxxxxxxx, Philadelphia - D.I.P.
Crystal Brands, Inc. - D.I.P. 3%
Crystal Brands, Inc - D.I.P./Retail Div.
Ormond Shops Inc. - D.I.P. d/b/a Xxxxxxx 3%
Xxxxxxx X. Xxxxxxxxxx & Co. - D.I.P. 3%
d/b/a LLoyd's
Jim's Deep Discount (Mr. Jim's)
Xxxxxx Xxxxxx & Co.
Blakes Xxxxxxx'x Menswear (Big & Tall Dept.)
Park Menswear (Big & Tall Dept.)
Kositchek's (Big & Tall Dept.)
Xxxxxxx & Xxxxxx
Raleigh's
Eagle Clothes
Middishade
Stallones
Justers
Xxxxxxx'x
Looies
Xxxxxxxxx Xxxxxxxx
Broadstreets
Xxxxxxxxx Big & Tall Men'
Chelsea
Willow Tree
Willow Tree Plus
Clothing Clearance Center
April-Xxxxxx
Xxxxxx Outlet
Xxxxxxxx
Xxxx Department Stores, Inc. 3%
Xxx Xxxxxx, Inc. - D.I.P. 3%
Xxx Xxxxxx of California, Inc. - D.I.P.
Fine's Men's Shop, Inc. - D.I.P. 3%
