{"id":41015,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/factoring-agreement-century-business-credit-corp-and-pepe.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"factoring-agreement-century-business-credit-corp-and-pepe","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/factoring-agreement-century-business-credit-corp-and-pepe.html","title":{"rendered":"Factoring Agreement &#8211; Century Business Credit Corp. and Pepe Jeans USA Inc."},"content":{"rendered":"<pre>\nCENTURY BUSINESS CREDIT CORPORATION ('CBCC')\n119 WEST 40TH STREET\nNEW YORK, NEW YORK 10018\n\n\n                                                             As of April 1, 1998\n\n\n     Re:  Amended and Restated Factoring Agreement\n          Pepe Jeans USA, Inc.\n          485 Fifth Avenue\n          New York, New York 10017\n\nGentlemen:\n\n     This letter ('Agreement') will amend and restate in its entirety the\nFactoring Agreement between us dated April 21, 1994, as amended on December 20,\n1995 and February 27, 1997. [For purposes of this Agreement, 'we,' 'us,' and\n'our' refers to Pepe Jeans USA, Inc. and 'you' and 'your' refers to CBCC.] We\nhereby confirm that you will act as our sole collection Factor upon the\nfollowing terms and conditions, namely:\n\n     1.   We hereby appoint you as our agent to collect all of our Receivables\n(as hereinafter defined).  Additionally, we hereby agree to sell you and you\nhereby agree to purchase from us, all credit approved Receivables in accordance\nwith Paragraph 6 hereunder; provided, however, that title and ownership of\nReceivables shall not vest in you and shall remain in us until the date the\npurchase price is paid to us by you, in cash or its equivalent (less any reserve\nas provided in this Agreement); and further provided, however, that at all times\nyou shall have a continuing security interest in all of our present and future\nReceivables as collateral for repayment of any and all Obligations (as defined\nin paragraph 9 hereof) to you, whether now existing or hereafter arising.  Upon\npayment of the purchase price, title shall vest in you as to those Receivables\nwhich you have purchased pursuant to Paragraph 6.  For all purposes hereof, the\nterm 'Receivables' shall mean and include all accounts and all forms of\nobligations owing to us arising from or out of the sale of merchandise and\/or\nthe rendition of services, all proceeds thereof, all of our rights to\nmerchandise represented thereby, all of our rights under insurance policies\ncovering such merchandise or services, all of our rights against carriers of\nsaid merchandise, and all of our right, title, security interests and guarantees\nwith respect to each Receivable, including all rights of replevin and\nreclamation and stoppage in transit and all other rights of an unpaid seller of\nmerchandise or services.\n\n     2.   Each sale of merchandise and\/or rendition of services by us on credit\napproved Receivables shall be made only with your written approval as to terms\nof sale (which shall not be changed without your written approval) and the\ncredit standing of our customer, and you shall have the right to withdraw such\napproval at any time before delivery of merchandise or rendition of services.\nYou shall not be liable to any person or in any manner for refusing to approve\nthe credit of any customer.  We shall execute and deliver to you written\nschedules of all Receivables sold or assigned to you hereunder in form\nsatisfactory to you, together with copies of customers' invoices or the\nequivalent and upon your request conclusive evidence of delivery for all goods\nsold and all other information or documents you may require relating to\nReceivables.  All \n\n \ncustomers' invoices shall be marked payable to you in a manner satisfactory to\nyou, and such marking of invoices as payable to you, regardless of by whom done,\nand\/or the delivery thereof to you shall constitute an assignment thereof to you\nwhether or not we execute any specific instrument of assignment. You shall have\nthe right to retain all remittances, checks and other proceeds of sale relating\nto Receivables and we agree to confirm your rights thereto by execution from\ntime to time of whatever documents you may reasonably deem necessary to effect\ncollection thereof. We authorize you to endorse our name on any and all checks\nor other forms of remittances received in payment of Receivables, whether you\nhave purchased the same or not, whenever you deem such endorsement to be\nnecessary to effect collection thereof. If any remittances are made directly to\nus relating to Receivables, we shall hold the same in trust for your benefit and\nyour property and will immediately deliver to you the identical checks,\ndocuments, instruments or moneys received in the same form as received by us. We\nhave been advised that you may employ and we consent to your use of a lockbox\naccount for the deposit of remittances received in payment of Receivables.\n\n     3.   We represent and warrant that each and every Receivable now or\nhereafter assigned to you will cover a bona fide sale and delivery of\nmerchandise usually dealt in by us or the rendition by us of services to\ncustomers in the ordinary course of our business; covers merchandise or services\nwhich have been received and accepted by our customers without dispute or claim\nof any kind or nature; will be for an amount certain payable in United States\nfunds in accordance with the terms of our invoice covering said sale, which\nshall not be changed without your written approval; except for your security\ninterest therein on credit approved Receivables, and the subordinate security\ninterests of our lenders, there are no security interests, liens, or\nencumbrances thereon and each Receivable will at all times be kept free and\nclear of same in your favor; we have good title thereto and the legal rights to\nsell, assign, transfer and set over the same to you; and all documents to be\ndelivered by us to you in connection therewith will be genuine and, to our best\nknowledge, will be enforceable against our customers free and clear of any\noffset, deduction, counterclaim, lien, encumbrance or any other claim or\ndispute, including, without limitation, claims or disputes as to price, terms,\ndelivery, quantity or quality and claims of release from liability or because of\nany act of God, or a public enemy, or war, or because of the requirements of law\nor of rules, orders or regulations having the force of law. We agree to\nindemnify you against any liability, loss or expense caused by or arising out of\nthe rejection of merchandise or services or claims or deductions of every kind\nand nature by our customers, other than those resulting from financial inability\nof our customer, whose credit standing you have approved, to make payment.  In\nthe event of our breach of any of the foregoing representations and\/or\nwarranties, you shall have, in addition to all your other rights under this\nAgreement, the right to chargeback to us immediately the full amount of the\nReceivables affected thereby together with interest, but such chargeback shall\nnot be deemed a reassignment thereof, and you shall retain a security interest\nin such Receivable and in the merchandise represented thereby until such\nReceivable is fully paid, settled or discharged or all our Obligations (as\nhereinafter defined in paragraph 9) to you are fully satisfied.  Notwithstanding\nanything to the contrary in this Agreement, you shall not, however, have the\nright to chargeback to us any Receivable approved by you which is unpaid solely\nbecause of such customer's financial inability to pay.  We agree that although\nyou may limit your purchase of Receivables arising from our sales to any one\ncustomer or the terms of sale, you nevertheless agree to collect such non-credit\napproved Receivables on our behalf.  We agree that all invoices \n\n                                       2\n\n \nin the amount of $100.00 or less shall be with full recourse to us in the event\nof nonpayment thereof for any reason whatsoever regardless of whether or not you\nhave approved the sale relating thereto. As to Receivables purchased by you with\nrecourse to us, you shall have the right to charge the same back to us at any\ntime, together with interest, if any. Upon the occurrence of any breach of any\nrepresentation or warranty for or by us to you or any chargeback by you, we\nshall promptly pay you the full amount of the Receivable affected thereby.\n\n     4.   We shall notify you upon your request in each instance of the return,\nrejection, loss of or damage to merchandise represented by any Receivable, of\nany request for extension of time to pay or request for credit or adjustment, or\nof any merchandise dispute or other dispute or claim relating to any Receivable\nor to the merchandise or services covered thereby or tending in any way to\ndiminish the sum certain payable thereon. As to credit approved Receivables, if\nany such dispute, controversy or claim is not promptly settled by us, you may,\nif you so elect, settle, compromise, adjust or otherwise enforce or dispose of\nby litigation or otherwise, any such dispute, controversy or claim, at our\nexpense, and upon such terms and conditions as you in your sole discretion shall\ndeem proper, but you shall have no obligation to do so.  You agree that, after\nassignment of credit approved Receivables to you and so long as no event of\ndefault has occurred, we may grant allowances, credits or adjustments to\ncustomers, or accept any return of merchandise, in each case solely in the\nordinary course of business, and should we do so we shall supply you with\nimmediate written notice in each instance.  All such credit memoranda to be\nissued to any customer shall be furnished by us only to you for transmission by\nyou to our customer who shall solely be entitled to the benefit thereof.  As to\ncredit approved Receivables, if any merchandise relating thereto shall be\nreturned by or recovered from our customer or held subject to bill and hold\ninvoices, we shall forthwith pay you the full amount of such Receivable, either\nin cash or by the assignment of new Receivables hereunder, and until such\npayment or assignment, such merchandise shall be held by us in trust for your\nbenefit, shall be segregated and identified by us as property held in trust for\nyour benefit, and upon your reasonable request we shall, at our expense, deliver\nthe same to you or for your account or upon your order to such place or places\nas you may designate.  Upon notice to us, you may sell or cause the sale of any\nsuch merchandise, at such prices and upon such terms as you may deem proper, and\nin the event of any public sale thereof, you may be the purchaser.  The proceeds\nof any such sale or sales shall first be charged with the costs and expenses of\nany incident to such sale, and the balance, if any, shall be credited to our\naccount.\n\n     5.   You will send us a monthly account current at the end of each month\nwhich will be in the same form as heretofore rendered to us, and as such shall\nnot reflect the retention or transfer of title to Receivables as herein provided\nand shall not supersede or override the provisions of paragraph 1 hereof\nregarding the retention or transfer of title to Receivables. Unless you receive\nour written objection to any account current rendered by you within thirty (30)\ndays after the mailing of such account current, it shall be deemed accepted by\nus and shall become conclusive and binding upon us.  All debit balances shall be\npayable to you on demand and shall bear interest at the rate of interest then in\neffect as hereinafter provided (herein called the 'Contract Rate'); such\ninterest is payable to you daily but shall be charged to our account monthly as\na cash advance made by you to us.  The Contract Rate of interest hereunder shall\nbe equal to the Prime Rate (as hereinafter defined).  Such Contract Rate is\nbased upon the highest announced prime, base or reference rate charged by New\nYork City money center banks to \n\n                                       3\n\n \nsubstantial and responsible corporate commercial borrowers ('Prime Rate') which\nis now eight and one-half percent (8 1\/2 %) per annum, and is neither tied to\nany external rate of interest or index, nor does it necessarily reflect the\nlowest rate of interest actually charged to any particular class or category of\ncustomers by such banks. Such Contract Rate shall be increased or decreased as\nthe case may be, as such Prime Rate is increased or decreased and to the extent\nthereof; each such change to be effective as at the first of the month after the\nrelated change in such Prime Rate; but in no event shall the Contract Rate of\ninterest hereunder be less than the Prime Rate per annum nor in excess of the\nmaximum rate you are permitted to charge by law.\n\n     6.   Collections of our Receivables, less any sums remitted or otherwise\npaid to us or for our account, or debited to our account hereunder, shall be\npayable by you to us each Friday for collections credited to us Monday, Tuesday\nand Wednesday of each week, and each Tuesday for collections credited to us for\nThursday and Friday of the previous week.  However, if any Receivable as to\nwhich you have approved the credit standing of the customer shall not be paid by\nreason of the customer's bankruptcy or insolvency or within 120 days of\nmaturity, you will pay us one-half (1\/2) of the purchase price thereof on the\nearlier of (a) the first Tuesday of the month following such customer's\nbankruptcy or insolvency, or (b) the first Tuesday following the Receivable\nbecoming 120 days past due without dispute.  Upon such payment to or for us, our\nassignment of the Receivable shall be effective to transfer title to such\nReceivable to you.  Upon your collection in whole or in part of any Receivable\nwith respect to which you have made payment to us in accordance with the\nprovisions of the second sentence of Paragraph 6, you shall pay to us one half\nof the amount of such collection (net of your actual and reasonable attorneys\nfees for collection provided that the collection attorney shall be satisfactory\nto us in each instance, our consent not to be unreasonably withheld).  The\npurchase price of Receivables sold and assigned to you each month shall be the\nnet amount thereof, as herein defined, less the amount of your commission on the\npurchase of such Receivables as provided in Paragraph 7 hereof.  As used herein,\nthe term 'net amount' of Receivables shall mean the gross amount of Receivables,\nless returns, allowances and discounts to customers upon shortest or longest\nselling terms, as you may elect.\n\n     7.   For your services hereunder with respect to our sales, you shall\nreceive a commission, which shall be chargeable to our account with you on the\nlast day of each month, equal to the product of (a) the net face amount of each\ncredit approved Receivable less selling discounts and (b) the commission rate\nset forth below opposite the applicable period in which such sale is made:\n\n \n \n          Period                        Commission Rate\n          ------                        ---------------\n                                      \n          April 1, 1998 through         .3175%\n          March 31, 1999\n\n          April 1, 1999 through         .3000%\n          March 31, 2000\n \n\n                                       4\n\n \n     8.   If any tax by any governmental authority (other than for your income\nand franchise taxes) is or may be imposed on or as a result of any transaction\nbetween us under or relating to this Agreement, or in respect to sales or the\nmerchandise affected by such sales, which you are or may be required to withhold\nor pay, we agree to indemnify and hold you harmless in respect of such taxes,\nand we will repay you the amount of any such taxes, which shall be charged to\nour account, and until we shall furnish you with indemnity therefor (or supply\nyou with evidence satisfactory to you that due provision for the payment thereof\nhas been made), you may hold without interest any balance standing to our credit\nand you shall retain your security interest in any and all collateral held by\nyou.\n\n     9.   As security for all 'Obligations' (as herein defined), we hereby grant\nto you a security interest in, a general lien upon and\/or a right of setoff of,\nall Receivables, all our credit balances with you and all our claims against you\n(whether now or hereafter existing and whether arising under this Agreement or\notherwise), and all our property of every kind and description, tangible or\nintangible, at any time in your possession or subject to your control, whether\nnow or hereafter existing or now owned or hereafter acquired and wherever\nlocated. As used herein, the term 'Obligations' means and includes all\nindebtedness, liabilities, obligations, debit balances, covenants and duties\nowing by us now or hereafter existing, all interest, fees, charges, expenses and\nattorneys' fees for which we are obligated hereunder. We agree to execute such\nfurther instruments and financing statements as may be required by any law in\nconnection with the transactions contemplated hereby and to cooperate with you\nin the filing or recording and renewal thereof, and we hereby further authorize\nyou (and appoint any person whom you designate as our attorney-in-fact with\npower) to sign our name on any such instrument and on financing statements under\nthe Uniform Commercial Code. Recourse to security shall not be required and we\nshall at all times remain liable for the repayment on demand of all Obligations.\n\n     10.  The undersigned will pay you on demand all costs and expenses\nincurred, including a reasonable allowance for attorneys' fees, in connection\nwith the execution and delivery of any amendment, supplement or modification\nhereof or the filing or perfecting any security interest in the Receivables or\nany other collateral granted by us or by any of our affiliates, shareholders or\nguarantors or to obtain or enforce payment of any Obligation of the undersigned\nto you, or in the prosecution or defense of any action or proceeding concerning\nany matter growing out of or connected with this Agreement and\/or the\nReceivables assigned and\/or any Obligations of the undersigned to you, or any\ncollateral therefor, including, without limitation, effecting collection of\nReceivables whether by adjustments, litigation or otherwise, and realization\nupon recovered or returned merchandise.\n\n     11.  We shall not be entitled to pledge your credit for any purpose\nwhatsoever.\n\n     12.  We waive presentment and protest of any instruments and all notices\nthereof, notices to which we might otherwise be entitled. We shall maintain, at\nout expense, proper books of account. You shall have the right to inspect and\nmake extracts from such books and all of our files, records and correspondence\nat all reasonable times. All sales of Receivables to you by us shall be deemed\nto include all of our right, title and interest to all of our books, records and\nfiles and all other data and documents relating to each Receivable. We shall\nfurnish you with as many duplicate customers' invoices as you may from time to\ntime require. We certify to you that \n\n                                       5\n\n \nour address as set forth in this Agreement is our mailing address, our chief\nplace of business, and the office at which our records relating to Receivables\nare kept. We request however that notices under this Agreement be sent to us at\n35 Henry Street, Secaucus, New Jersey 07094. We shall not effect any change in\nour mailing address, or in our chief place of business, or in the office in\nwhich our records relating to Receivables are kept, without first giving you\nwritten notice thereof.\n\n     13.  The term of this Agreement began as of April 21, 1994 and shall\ncontinue until March 31, 2000. You shall have the right to terminate this\nAgreement at any time by giving the undersigned sixty (60) days prior written\nnotice. Notwithstanding the foregoing, you may terminate this Agreement without\nnotice in the event that: we commit any breach of or default in the performance\nof any of our representations, warranties or covenants whether contained herein\nor in any instrument or document delivered pursuant hereto or in any other\nagreement, instrument, or document under which we are obligated to you; or we\nmake any false or untrue representation to you in connection with this Agreement\nor any transaction relating thereto, become unable to pay our debts as they\nmature, make a general assignment for the benefit of creditors, suspend the\ntransaction of our usual business, convene or cause to be convened a meeting of\nour creditors or principal creditors or take advantage of the insolvency laws of\nany State, or a case is commenced or a petition in bankruptcy or for an\narrangement or reorganization under the Federal Bankruptcy Code is filed by or\nagainst us (if involuntary, only if such case is not dismissed or consented to\nwithin 60 days of filing) or a custodian or receiver (or other court designee\nperforming the functions of a receiver) is appointed for or takes possession of\nour assets or affairs or an order for relief in a case commenced under the\nFederal Bankruptcy Code is entered; or we shall be dissolved or be a party to\nany merger or consolidation without your written consent; or if there shall be\nissued or filed against us any tax lien, or there shall be issued or filed\nagainst us any attachment, injunction, execution, or judgment which is not\nremoved within thirty (30) days after same was issued or filed. Notwithstanding\nany termination of this Agreement we shall continue to assign Receivables to you\nand turn over all collections to you as herein provided until all Obligations\nshall have been fully paid and satisfied, and until then this Agreement shall\nremain in full force and effect as to and be binding upon us, and you shall be\nentitled to retain your security interest in all existing and future Receivables\nand other security.\n\n     14.  Upon the occurrence of any of the events of default specified in\nParagraph 13 hereof, you shall have all the rights and remedies of a secured\nparty under the Uniform Commercial Code and other applicable laws with respect\nto all collateral in which you have a security interest, such rights and\nremedies being in addition to all of your other rights and remedies provided for\nherein. You may sell or cause to be sold any or all of such collateral, in one\nor more sales or parcels, at such prices and upon such terms as you may deem\nbest, and for cash or on credit or for future delivery, without your assumption\nof any credit risk, and at a public or private sale as you may deem appropriate.\nUnless the collateral is perishable or threatens to decline speedily in value or\nis of a type customarily sold on a recognized market, you will give us\nreasonable notice of the time and place of any public sale thereof or of the\ntime after which any private sale or any other intended disposition thereof is\nto be made. The requirements of reasonable notice shall be met if any such\nnotice is mailed, postage prepaid to our address shown herein, at least five (5)\ndays before the time of the sale or disposition thereof. You may invoice any\nsuch sale in your name or in our name, as you may elect, as the seller, and \n\n                                       6\n\n \nin such latter event such invoice shall be marked payable to you as provided in\nParagraph 2 hereof. You may be the purchaser at any such public sale and\nthereafter hold the property so sold at public sale, absolutely, free from any\nclaim or right of any kind, including any equity of redemption. The proceeds of\nsale shall be applied first to all costs and expenses of and incident to such\nsale, including attorneys' fees, and then to the payment (in such order as you\nmay elect) of all Obligations. You will return any excess to us and we shall\nremain liable for any deficiency.\n\n     15.  We warrant that we are solvent, know of no present or pending\nsituation which could render us insolvent, and we will remain solvent during the\nterm of this Agreement. This Agreement is made and is to be performed under the\nlaw of the State of New York and shall be governed by and construed in\naccordance with said law. Each of the parties to this Agreement expressly\nsubmits and consents to the jurisdiction of the Supreme Court of the State of\nNew York in the County of New York, with respect to any controversy arising out\nof or relating to this Agreement or any amendment or supplement thereto or to\nany transactions in connection therewith and each of the parties to this\nAgreement hereby waives personal service of any summons or complaint or other\nprocess or papers to be issued in any action or proceeding involving any such\ncontroversy and hereby agrees that service of such summons or complaint or\nprocess may be made by registered or certified mail to the other party at the\naddress appearing herein; failure on the part of either party to appear or\nanswer within thirty (30) days after such mailing of such summons, complaint or\nprocess shall constitute a default entitling the other party to enter a judgment\nor order as demanded or prayed for therein to the extent that said Court or duly\nauthorized Officer thereof may authorize or permit. You and we do hereby waive\nany and all right to a trial by jury in any such action or proceeding. In the\nevent you commence any action or proceeding against us, we will not assert any\noffset or counterclaims, of whatever nature or description, in any such action\nor proceeding. No failure or delay by you in exercising any of your powers or\nrights hereunder shall operate as a waiver thereof; nor shall any single or\npartial exercise of any such power or right preclude other or further exercise\nthereof or the exercise of any other right or power. Your rights, remedies and\nbenefits hereunder are cumulative and not exclusive of any other rights,\nremedies or benefits which you may have. This Agreement may only be modified in\nwriting and no waiver by you will be effective unless in writing and then only\nto the extent specifically stated. All notices and other communications by\neither party hereto shall be in writing and shall be sent to the other party at\nthe address specified\n\n                                       7\n\n \nherein. You shall have the right to assign this Agreement and all of your rights\nhereunder shall inure to the benefit of your successors and assigns; and this\nAgreement shall inure to the benefit of and shall bind our respective successors\nand assigns.\n\n\n                              Very truly yours,\n\n                              PEPE JEANS USA, INC.\n\n                              By: \/s\/ Arthur Bargonetti\n                                 ----------------------\n                              Title: Executive Vice President\n                                    -------------------------\n\n                              Accepted at New York, New York\n                              On  April 20, 1998\n                                 ------ --      \n\n\n                              CENTURY BUSINESS CREDIT CORPORATION\n\n\n                              By: \/s\/ David J. Finkelstein\n                                 -------------------------\n                              Title: SR EVP\n                                    -------\n\n                                       8\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7775],"corporate_contracts_industries":[9396],"corporate_contracts_types":[9564,9560],"class_list":["post-41015","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-hilfiger-tommy-corp","corporate_contracts_industries-consumer__clothing","corporate_contracts_types-finance__factor","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41015","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41015"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41015"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41015"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41015"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}