Exhibit 10.31


 


FACTORING
AGREEMENT


(COLLECTION)


 


THIS FACTORING AGREEMENT (“Agreement”)
made and executed this 19 day of December, 2008 by and between VERRAZANO, INC. (“Client”) and WELLS FARGO
TRADE CAPITAL, LLC (“Factor”)


 


1.  Purchase of Accounts Receivable:


 


1.1.  Appointment
as Factor.  Client hereby appoints
Factor to act as its non-exclusive factor. 
Client hereby agrees to assign and sell, and does hereby assign and
sell, to Factor, and Factor hereby agrees to purchase certain of Client’s
Receivables whether now existing or hereafter arising without any further act
or instrument.  For all purposes hereof,
the term “Receivables” shall mean and include all accounts, contract rights,
general intangibles, chattel papers, instruments, documents and all forms of
obligations owing to Client arising from or out of the sale of merchandise
and/or the rendition of services, all proceeds thereof, all Client’s: a) rights
to merchandise represented thereby;  b)
rights under insurance policies covering merchandise or services; c) rights
against carriers of said merchandise; and d) right, title, security interests
and guarantees with respect to each Receivable, including all rights of
replevin and reclamation and stoppage in transit and all other rights of
an unpaid seller of merchandise or services.


 


1.2.  Written Credit Approval.  Client shall submit to Factor the principal
terms of each customers’ orders for written credit approval.  Factor may, in its discretion, approve in
writing all or a portion of Client’s customers’ orders either by establishing a
credit line limited to a specific amount for a specific customer, or by
approving all or a portion of a proposed purchase order submitted by Client
(“Approved Receivables”).  No credit
approval shall be effective unless in writing and unless the goods are shipped
or the services rendered within the time specified in the written credit
approval or within 30 days after the approval is given, if no time is
specified.  No written credit approval or
terms of sale shall be changed without Factor’s written approval. Factor shall
have the right to withdraw its credit approval or withdraw or adjust a credit
line at any time before delivery of merchandise or rendition of services.
Factor shall not be liable to any person or in any manner for refusing to
approve the credit of any customer.


 


1.3.  Written Schedules.  Client shall execute and deliver to Factor
written or electronic schedules of all Receivables sold or assigned hereunder
in form satisfactory to Factor, together with copies of customer’s invoices or
the equivalent and upon Factor’s request, conclusive evidence of delivery for
all goods sold or rendition of services and all other information or documents
Factor may require.


 


1.4.  Remittances.  All customers’ invoices shall be marked
indicating that the Receivable evidenced by the invoice is owned by and payable
to Factor in a manner satisfactory to Factor. 
All remittances, checks, bills and other proceeds of sales shall be
property of Factor and Client authorizes Factor to endorse its name on any and
all checks or other forms of remittances received in payment of Receivables
whenever such endorsement is deemed to be 


 


1

















 


necessary by Factor to effect collection thereof.  If any remittances are made directly to
Client, Client shall hold the same in trust for the benefit of Factor and will
immediately deliver to Factor the identical checks, documents, instruments or
moneys received in the same form as received by Client.  Client has been advised that Factor may
employ a lockbox account for the deposit of remittances received in payment of
Receivables, and Client consents thereto.


 


1.5.  Application of Remittances from Customers.  As between Client and Factor, all
remittances, distributions and insolvency dividends, recoveries or other
payments whether made in the ordinary course or otherwise (“Remittances”)
received from a customer shall be deemed to be applied first to the oldest invoices due from such customer,
notwithstanding any remittance advice from the customer to the contrary.   However, insofar as Factor shall have
assumed the credit risk with respect to only a portion of the indebtedness due
or to become due from a customer, all Remittances shall be applied first to the
indebtedness then subject to Factor’s credit risk.


 


1.6.  Credit Limits.  Factor may limit its purchase of Receivables
arising from sales to any one customer, and in such event, and in any instance
in which Factor does not approve the credit standing of that customer or the
terms of sale, Factor nevertheless agrees to purchase such Receivables from
Client and Client shall sell and assign the same to Factor hereunder, but with
full recourse to Client in the event of nonpayment thereof for any reason whatsoever
(“Non-Approved Receivables”).


 


2.  Representations and Warranties.


 


2.1.  Receivables.  Client represents and warrants that each and
every Receivable now or hereafter assigned to Factor: a) represents a bona fide
sale and delivery of merchandise or rendition of services to customers in the
ordinary course of its business; b) represents merchandise or services which
have been received and accepted by Client’s customers without dispute or claim
of any kind and shall be free and clear of any offset, deduction, counterclaim,
lien, encumbrance or any other claim or dispute (real or claimed), including,
without limitation, claims or disputes as to price, terms, delivery, quantity
or quality and claims of release from liability or because of any act of God, or
a public enemy, or war, or because of the requirements of law or of rules,
orders or regulations having the force of law; c) will be for an amount certain
payable in United States funds in accordance with the terms of the invoice
covering said sale, which shall not be changed without Factor’s written
approval; d) except for Factor’s security interest therein, and the security
interest of Client’s bank with whom Factor shall have entered into an
intercreditor agreement, there are no security interests, liens or encumbrances
thereon and it will at all times be kept free and clear of same except in
Factor’s favor; e) is owned by Client and Client has the legal rights to sell,
assign, transfer and set over the same to Factor; f) all documents to be
delivered to Factor in connection therewith will be genuine and be enforceable.
Client agrees to indemnify Factor against any liability, loss or expense caused
by or arising out of the rejection of merchandise or services or claims or
deductions of every kind and nature by Client’s customers, other than those
resulting from the financial inability of Client’s customer, whose credit
standing Factor has approved, to make payment.


 


2

















 


2.2.  Chargebacks.  In the event of Client’s breach of any of the
foregoing representations and/or warranties, Factor shall have, in addition to
all other rights under this Agreement, the right to chargeback to Client
immediately the full amount of the Receivables affected thereby together with interest,
but such chargeback shall not be deemed a reassignment thereof, and Factor
shall retain a security interest in such Receivable and in the merchandise
represented thereby until such Receivable is fully paid, settled or discharged
and all Client’s Obligations (as hereinafter defined) to Factor are fully
satisfied.  Factor shall not, however,
have the right to chargeback to Client any Approved  Receivable which is unpaid solely because of
such customer’s financial inability to pay.


 


3.  Purchase Price


 


3.1.  Calculation of Purchase Price.  The purchase price of Receivables sold and
assigned hereunder shall be the net amount thereof, as herein defined, less the
amount of Factor’s commission on the purchase of such Receivables as provided
in Section 4 hereof (the “Purchase Price”). As used herein, the term “net
amount” of Receivables shall mean the gross amount of Receivables less returns,
allowances and discounts to, or taken by, customers upon shortest or longest
selling terms, as Factor may elect.  The
Purchase Price of a Receivable, less: a) any reserves which Factor may have
established; b) any sums advanced, remitted or otherwise paid to Client or for
Client’s account or debited to Client’s account; and c) any other charges
authorized hereunder, shall be payable by Factor to Client two (2) business
days after the day on which the payment of the Receivable is posted to Client’s
account by the Factor.  However, if any
Approved Receivable as to which there exists no dispute or claim shall not be
paid by reason of the customer’s bankruptcy, Factor will pay Client the
Purchase Price thereof on the first business day of the month following such
customer’s bankruptcy conditioned upon (i) such customer’s acknowledgement
that it has no disputes, claims, defenses or offsets with respect to such
Approved Receivables, or (ii) in the absence of such acknowledgement, such
customer’s filing of its Schedules of Assets and Liabilities with the
Bankruptcy Court of appropriate jurisdiction, indicating that the Approved Receivables
are not disputed.  Payments made by
Factor on Approved Receivables which are subsequently disputed by the customer
are subject to, among other things, the provisions of Section 2.2 relating
to Chargebacks.  In addition, Factor shall not be required to
credit Client’s account for the amount of any item of payment which is
unsatisfactory to Factor in its sole discretion, and Factor may charge Client’s
account for the amount of any item of payment which is returned to Factor
unpaid.


 


3.2.  Reserves.  Factor may reserve out of the Purchase Price
of all Receivables sold and assigned an amount which, in Factor’s reasonable
business judgment, is sufficient to protect it against possible returns,
claims, allowances, expenses and recourse to Client on Receivables sold and
assigned to Factor and against other contingencies for which Client may be
chargeable hereunder.


 


4.  Commissions and Interest


 


4.1.  Factoring Commission.  For its services hereunder, Factor shall
receive a commission equal to three-tenths of one percent (0.3%) percent of the
gross amount of Receivables, less any discount reflected on the face of the
invoice; provided, however, a) in the 


 


3

















 


case of any Receivables
due from a customer who is a debtor-in-possession, Factor shall receive an
additional commission equal to no less than one (1%) percent for 15 day selling
terms and two (2%) percent for 30 day selling terms, of the gross invoice
amount of each Receivable, less any discount reflected on the face of the
invoice, all of which commissions shall be due and payable as of the date a
Receivable arises, and shall then be chargeable to Client’s account. In addition, and with prior notice to Client,
Factor may from time to time impose a commission surcharge on other high-risk
customers and on customers located outside the United States.


 


4.2.  Extended Terms. The commission
specified in Section 4.1 hereof with respect to a customer who is not a
debtor-in-possession is based upon maximum selling terms of sixty (60) days,
and no more extended terms or additional dating shall be granted by Client to
any customer without Factor’s prior written approval.  If such approval is given by Factor, Factor’s
commission with respect to the Receivables covered thereby shall be increased
by an additional one-quarter of one (1/4%) percent for each additional thirty
(30) days or portion thereof of extended terms or additional dating.


 


4.3.Minimum
Commissions. The minimum aggregate factoring commissions payable under this
Agreement for each contract year hereof shall be $250,000 (when aggregated with
the factoring commissions paid by Client’s affiliate, Rafaella Apparel Group, Inc.,
for such period), which, to the extent of any deficiency (after giving effect
to commissions payable under paragraph 4.1. hereof), shall be chargeable to
Client’s account with Factor yearly.


 


4.4.  Monthly Statement and Calculation of
Interest.  Factor will send Client a
monthly account current as of the end of each month.  Unless Factor receives a written objection to
any account current rendered by Factor within forty-five (45) days after the
mailing of such account current, it shall be deemed accepted by Client and
shall become conclusive and binding upon Client.  All debit balances shall be payable to Factor
on demand and shall bear interest at the rate of interest then in effect as
hereinafter provided (herein called the “Contract Rate”); such interest is
payable daily but shall be charged to Client’s account monthly as a cash
advance. The Contract Rate of interest hereunder shall be equal to the Prime
Rate (as hereinafter defined) plus one (1) percentage point per
annum.  Such Contract Rate is based upon
the highest announced prime, base or reference rate charged by Wells Fargo
Bank, N. A. to substantial and responsible corporate commercial borrowers
(“Prime Rate”) which is now 3.25% per annum, and is neither tied to any
external rate of interest or index, nor does it necessarily reflect the lowest
rate of interest actually charged to any particular class or category of
customers by such Bank.  Such Contract
Rate shall be increased or decreased as the case may be, as such Prime Rate is
increased or decreased and to the extent thereof; each such change to be
effective as at the first of the month following the month the related change
in such Prime Rate occurs; but in no event shall the Contract Rate of interest
hereunder be less than 4% per annum nor in excess of the maximum rate Factor is
permitted to charge by law.


 


4.5.  Credit Balances.  On the last day of each month, Factor shall
credit Client’s account with interest on the average daily balance of matured
funds and cash collateral in Client’s account, if any, at the Prime rate minus
3% per annum.


 


4

















 


5.  Security Interest


 


5.1.Grant of Security
Interest.    As security for all
“Obligations” (as herein defined), Client hereby grants to Factor a continuing
security interest in, a general lien upon and/or a right of setoff of, all of
Client’s presently existing and hereafter created Receivables and the General
Intangibles (as such term is defined in the Uniform Commercial Code) relating
thereto, including, without limitation, all proceeds of letters of credit, all
insurance proceeds, all trademarks and tradenames, all books and records, in
each case relating to the Receivables, all credit balances with Factor and all
Client’s claims against Factor (whether now or hereafter existing and whether
arising under this Agreement or otherwise), instruments, and all Client’s
property of every kind and description, tangible or intangible, at any time in
Factor’s possession or subject to Factor’s control, whether now or hereafter
existing or now owned or hereafter acquired and wherever located and all proceeds
of the foregoing. As used herein, the term “Obligations” means and includes all
loans, advances, indebtedness, liabilities, obligations, debit balances,
covenants and duties owing by Client or any of Client’s subsidiaries or
affiliates to Factor or Factor’s parent, subsidiary or affiliate of every kind
and description (whether now or hereafter existing and whether arising under
this Agreement or otherwise), direct or indirect, absolute or contingent, due
or to become due, including, without limitation, any indebtedness, liabilities
or obligations owing by Client to others which Factor has acquired by
assignment, participation or otherwise, and further including, without
limitation, all interest, fees, charges, expenses and reasonable attorneys’
fees for which Client may be obligated hereunder. Amounts owing to Factor in
respect of Client’s purchases from other persons, firms or corporations
factored by Factor or its parent, subsidiary or affiliate are to be considered
Obligations and as advances against Client’s account and may be charged by
Factor to Client’s account at any time whether before or after the maturity of
such amounts.


 


5.2.  Cooperation.  Client agrees to execute such further
instruments as may be required by any law in connection with the transactions
contemplated hereby and to cooperate with Factor in the filing or recording and
renewal thereof, and Client hereby authorizes Factor (and appoints any person
whom Factor designates as its attorney with power) to sign Client’s name on any
such instruments.  Client hereby
authorizes Factor to file financing statements containing a description or
reasonable summary of the assets in which Client has granted Factor a security
interest. Recourse to security shall not be required and Client shall at all
times remain liable for the repayment on demand of all Obligations.


 


6.  Customer Disputes and Claims: Returned Goods


 


6.1.  Disputes and Claims.  Client shall immediately notify Factor in
each instance of the return, rejection, loss of or damage to merchandise
represented by any Receivable, of any request for extension of time to pay or
request for credit or adjustment, or of any merchandise dispute or other
dispute or claim relating to any Receivable or to the merchandise or services
covered thereby or tending in any way to diminish the sum certain payable
thereon.  If any such dispute,
controversy or claim is not promptly settled by Client, Factor may, if it so
elects, settle, compromise, adjust or otherwise enforce or dispose of by
litigation or otherwise, any such dispute, controversy or claim, at Client’s
expense, and upon such terms and conditions as Factor in its sole discretion
shall deem proper, but Factor shall have no obligation to do so.  Client shall 


 


5

















 


not grant any allowances,
credits or adjustments to customers, nor accept any return of merchandise,
without Factor’s prior written consent in each instance


 


6.2.  Returned Merchandise.  If any merchandise shall be returned by or
recovered from the customer or held subject to bill and hold invoices, Client
shall forthwith pay Factor the full amount of such Receivable, either in cash
or by the assignment of new Receivables hereunder, and until such payment or
assignment, such merchandise shall be held by Client in trust for the benefit
of Factor, shall be segregated and identified by Client as property held in
trust for benefit of Factor, and upon Factor’s request Client shall, at its
expense, deliver the same to Factor or for Factor’s account or upon its order
to such place or places as Factor may designate.  Factor may sell or cause the sale of any such
merchandise, at such prices and upon such terms as it may deem proper, and in
the event of any public sale thereof, Factor may be the purchaser.  The proceeds of any such sale or sales shall
first be charged with the costs and expenses of any incident to such sale, and
the balance, if any, shall be credited to Client’s account.


 


6.3.  Credit Memoranda.  Copies of all credit memoranda to be issued to
any customer shall be furnished by Client to Factor and only the customer shall
be entitled to the benefit thereof. 
Factor may charge $2.00 to Client’s account for each invoice in respect
of any credit memoranda or change of terms.


 


7.  Fees and Expenses


 


7.1.
Client shall pay to Factor all costs, expenses and liabilities incurred, in
connection with: (a) the preparation, execution, delivery, administration
and enforcement of this Agreement and any agreement, instrument or document
delivered pursuant hereto or in connection herewith (collectively, the “Other
Agreements”), including a reasonable allowance for attorneys’ fees; (b) any
waiver, amendment, supplement, consent or modification hereof or thereof; and (c) the
filing or perfecting of any security interest in any collateral securing the
Obligations or any guaranty therefor. 
Factor shall also be entitled to charge Client’s account for all costs
and expenses incurred (including reasonable attorneys fees) in connection with:
(i) obtaining or enforcing payment of any Obligation; (ii) the
prosecution or defense of any action or proceeding concerning any matter
arising out of or connected with this Agreement, any Other Agreement, or any of
the Receivables assigned hereunder, including, without limitation, effecting
collection of Non-Approved Receivables whether by adjustments, litigation or
otherwise, and realization upon recovered or returned merchandise and defending
successfully in whole or in part any and all actions or proceedings brought by
Client; (iii) obtaining performance of the Obligations under this
Agreement or any Other Agreement, including, but not limited to, the
enforcement or defense of Factor’s security interests, assignments of rights
and liens as valid perfected security interests; (iv) any attempt to
inspect, verify, protect, collect, sell, liquidate or otherwise dispose of any
collateral for the Obligations; (v) [omitted]; and (vi) any
consultations in connection with any of the foregoing.  In addition to the foregoing, Factor shall
charge Client’s account with fees relating to telecopying, wire transfers,
special or additional reports and other services at such rates as shall be
charged by Factor to its clients from time to time.  All such costs and expenses together with all
filing, recording and search fees, taxes and interest payable 


 


6

















 


by
Client to Factor shall be payable on demand may be charged to Client’s account
and shall constitute Obligations hereunder and shall be secured by the
collateral therefor.


 


8.  Indemnities


 


8.1.  Indemnification.  Client hereby indemnifies and holds Factor
and its affiliates, and their respective employees, attorneys and agents (each,
an “Indemnified Person”), harmless from and against any and all suits, actions,
proceedings, claims, damages, losses, liabilities and expenses of any kind or
nature whatsoever (including reasonable attorneys’ fees and disbursements and
other costs of investigation or defense, including those incurred upon any
appeal) which may be instituted or asserted against or incurred by any such
Indemnified Person as the result of any financial accommodation having been
extended, suspended or terminated under this Agreement or any Other Agreement
or with respect to the execution, delivery, enforcement, performance and
administration of, or in any other way arising out of or relating to, this
Agreement or any Other Agreement, and any actions or failures to act with
respect to any of the foregoing, except to the extent that any such indemnified
liability is finally determined by a court of competent jurisdiction to have
resulted solely from such Indemnified Person’s gross negligence or willful
misconduct. NO INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO CLIENT OR
TO ANY OTHER PARTY FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES
WHICH MAY BE ALLEGED AS A RESULT OF ANY FINANCIAL ACCOMMODATION HAVING
BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER THIS AGREEMENT OR ANY OTHER
AGREEMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR
THEREUNDER.


 


8.2.  Taxes. 
If any tax by any governmental authority (other than income and
franchise taxes) is or may be imposed on or as a result of any transaction
between Client and Factor, or in respect to sales or the merchandise affected
by such sales, which Factor is or may be required to withhold or pay, Client
agrees to indemnify and hold Factor harmless in respect of such taxes, and
Client will repay Factor the amount of any such taxes, which shall be charged
to Client’s account, and until Client shall furnish Factor with indemnity
therefor (or supply Factor with evidence satisfactory to Factor that due
provision for the payment thereof has been made), Factor may hold without
interest any balance standing to Client’s credit and Factor shall retain its
security interest in any and all collateral held by Factor.


 


9.  Termination and Default


 


9.1.  Term. 
The term of this Agreement shall begin as of the effective date hereof
and continue until the last day of the twelfth (12th) month
hereafter (the “Initial Term) and thereafter shall be automatically renewed
from year to year unless terminated as of the last day of the Initial Term or
as of any time thereafter by Client giving Factor at least sixty (60) days
prior written notice by registered or certified mail, return receipt
requested.  Factor shall have the right
to terminate this Agreement at any time by giving Client sixty (60) days prior
written notice.  Upon termination of this
Agreement for any reason (other than a termination by Factor prior to the
occurrence of an Event of Default), the unpaid balance of the aggregate minimum
factoring 


 


7

















 


commission set forth in Section 4.3,
which shall be pro-rated from the beginning of that contract year though the
date of termination, shall become immediately due and payable.


 


9.2.  Defaults.  Notwithstanding the foregoing, Factor may
terminate this Agreement without notice and all Obligations shall, unless and
to the extent that Factor otherwise elects, become immediately due and payable
without notice or demand upon the occurrence and during the continuance of any
one or more of the following events (each an “Event of Default”):  a) Client fails to pay any Obligation when
due; b) Client commits any breach of or default in the performance of its
representations, warranties or covenants whether contained herein or in any
instrument or document delivered pursuant hereto or in any other Agreement,
instrument, or document under which it is obligated to Factor; c) Client or any
other party liable upon any Obligation (i) makes any false or untrue
representation to Factor in connection with this Agreement or any transaction
relating thereto; (ii) become(s) unable to pay its debts as they
mature; (iii) make(s) a general assignment for the benefit of
creditors, suspend(s) the transaction of Client’s usual business, convene(s) or
cause(s) to be convened a meeting of Client creditors or principal
creditors or take(s) advantage of the insolvency laws of any State, or a
case is commenced or a petition in bankruptcy or for an arrangement or
reorganization under the Federal Bankruptcy Code is filed by or against Client
or any such other party or a custodian or receiver (or other court designee
performing the functions of a receiver) is appointed for or takes possession of
Client’s or any such other party’s assets or affairs or an order for relief in
a case commenced under the United States Bankruptcy Code is entered; or d)
[omitted]; e) Client shall be dissolved; f) there shall be issued or filed
against Client, or other party liable upon any Obligations, any tax lien; g)
[omitted]; h) [omitted]; or (i) or there shall be issued or filed against
Client any attachment, injunction, execution, or judgment which is not removed,
satisfied or bonded to Factor’s reasonable satisfaction within thirty (30) days
after same was issued or filed.


 


9.3.  Continuing Obligations.  Notwithstanding any termination of this
Agreement Client shall continue to deliver Receivables information to Factor
and turn over all collections to Factor with respect to Receivables which have
previously been assigned to Factor as herein provided until all Obligations
shall have been fully paid and satisfied, and until then this Agreement shall
remain in full force and effect as to and be binding upon Client, and Factor
shall be entitled to retain its security interest in all existing and future
Receivables and other security and collateral.


 


9.4.  Remedies.  Upon the occurrence of any of the Events of
Default specified in Section 9.2 hereof, Factor shall have all the rights
and remedies of a secured party under the Uniform Commercial Code and other
applicable laws with respect to all collateral in which it has a security
interest, such rights and remedies being in addition to all of its other rights
and remedies provided for herein.  Factor
may sell or cause to be sold any or all of such collateral, in one or more
sales or parcels, at such prices and upon such terms as it may deem best, and
for cash or on credit or for future delivery, without its assumption of any
credit risk, and at a public or private sale as it may deem appropriate.  Unless the collateral is perishable or
threatens to decline speedily in value or is of a type customarily sold on a recognized
market, Factor will give Client reasonable notice of the time and place of any
public sale thereof or of the time after which any private sale or any other
intended disposition thereof is to be made. 
At any such sale, Factor may disclaim warranties of title, possession,
quiet enjoyment and the like and any such 


 


8

















 


disclaimer shall not
effect the commercial reasonableness of the sale.  The requirements of reasonable notice shall
be met if any such notice is mailed, postage prepaid, to Client’s address shown
herein, at least five (5) days before the time of the sale or disposition
thereof.  Factor may invoice any such
sale in Factor’s name or in Client’s name, as Factor may elect, as the seller,
and in such latter event such invoice shall be marked payable to Factor as
provided in Section 1.4 hereof. 
Factor may be the purchaser at any such public sale and thereafter hold
the property so sold at public sale, absolutely, free from any claim or right of
any kind, including any equity of redemption. 
The proceeds of sale shall be applied first to all costs and expenses
of, and incident to, such sale, (including attorneys’ fees), and then to the
payment (in such order as Factor may elect) of all Obligations.  Factor will return any excess to Client and
Client shall remain liable for any deficiency.


 


10.  Miscellaneous


 


10.1.  No Pledge of Credit.  Client shall not be entitled to pledge
Factor’s credit for any purpose whatsoever.


 


10.2.  Waivers.  Client waives presentment and protest of any
instruments and all notices thereof, notice of default and all other notices to
which it might otherwise be entitled. 
Client shall maintain, at its expense, proper books of account.


 


10.3   Right of Inspection.  Factor shall have the right to inspect and
make extracts from such books and all files, records and correspondence at all
reasonable times.


 


10.4   No Pledge or Sale of Receivables.  During the term of this Agreement Client
shall not sell or assign, negotiate, pledge or grant any security interest in
any Receivables assigned to Factor under this Agreement to any one other than
Factor.


 


10.5.  Organization and Locations.  Client certifies that its address as set
forth in this Agreement is its mailing address, its chief place of business,
and the office at which its records relating to Receivables are kept.  Client further certifies that its state of
incorporation or organization is the State of New York and it shall not change
its state of incorporation or organization without Factor’s written consent.
Client shall not effect any change of its mailing address, its chief place of
business, or the office in which its records relating to Receivables are kept,
without first giving Factor thirty days prior written notice thereof.  Client shall provide to Factor, upon request,
a Certificate of Good Standing from the Secretary of State of the state of
incorporation or organization of the undersigned and from every state where the
undersigned is qualified to do business.


 


10.6.  Financial Statements. [Omitted].


 


10.7  Solvency; Governing Law; Jurisdiction.  Client warrants that it is solvent, knows of
no present or pending situation which could render it insolvent and it will
remain solvent during the term of this Agreement.  This Agreement is made and is to be performed
under the laws of the State of New York and shall be governed by and construed
in accordance with said law.  Each of the
parties to this Agreement expressly submits and consents to the 


 


9

















 


jurisdiction of the
Supreme Court of the State of New York in the County of New York, with respect
to any controversy arising out of or relating to this Agreement or any
amendment or supplement thereto or to any transactions in connection therewith
and each of the parties to this Agreement hereby waives personal service of any
summons or complaint or other process or papers to be issued in any action or
proceeding involving any such controversy and hereby agrees that service of such
summons or complaint or process may be made by registered or certified mail to
the other party at the address appearing herein; failure on the part of either
party to appear or answer within thirty (30) days after such mailing of such
summons, complaint or process shall constitute a default entitling the other
party to enter a judgment or order as demanded or prayed for therein to the
extent that said Court or duly authorized officer thereof may authorize or
permit.


 


10.8.  Waiver of Jury Trial.    FACTOR AND CLIENT DO
HEREBY WAIVE ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
OF ANY KIND ARISING ON, OUT OF, BY REASON OF, OR RELATING IN ANY WAY TO, THIS
AGREEMENT OR THE INTERPRETATION OR ENFORCEMENT THEREOF OR TO ANY TRANSACTIONS
HEREUNDER.  IN THE EVENT FACTOR COMMENCES
ANY ACTION OR PROCEEDING AGAINST CLIENT, CLIENT WILL NOT ASSERT ANY
COUNTERCLAIM, OF WHATEVER NATURE OR DESCRIPTION, IN ANY SUCH ACTION OR
PROCEEDING, OTHER THAN A MANDATORY OR
COMPULSORY COUNTERCLAIM WHICH WOULD BE WAIVED IF NOT SO ASSERTED.


 


10.9.  No Waiver of Rights.  No failure or delay by Factor in exercising
any of its powers or rights hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such power or right preclude other
or further exercise thereof or the exercise of any other right or power.  Factor’s rights, remedies and benefits
hereunder are cumulative and not exclusive of any other rights, remedies or
benefits which Factor may have.  This
Agreement may only be modified in writing and no waiver by Factor will be
effective unless in writing and then only to the extent specifically stated.


 


10.10.  Notices.  All notices and other communications by
either party hereto shall be in writing and shall be sent to the other party at
the address specified herein.


 


10.11.   Assignment.  Factor shall have the right to assign this
Agreement and all of Client’s rights hereunder shall inure to the benefit of
Factor’s successors and assigns; and this Agreement shall inure to the benefit
of and shall bind Client’s respective successors and assigns.


 


11.  USA Patriot Act


 


Factor
shall have received, sufficiently in advance of the closing date, all
documentation and other information required by bank regulatory authorities
under applicable “know your customer” and anti-money laundering rules and
regulations, including without limitation the United States Patriot Act (Title
III of Pub L. 107-56) (the “Act”). 
Factor hereby notifies Client that pursuant to the requirements of the
Act, its is required to obtain, verify and record information that identifies
Client, which information includes the name and addresses of 


 


10

















 


Client,
and other information that will allow Factor to identify Client in accordance
with the Act.  Client shall (and shall
cause its subsidiaries, to) provide such information and take such actions as
requested by Factor in order to assist Factor in maintaining compliance with
the Act.


 


IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the day and year first above written.


 


 


	
   

  	
  VERRAZANO, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Chad Spooner

  
	
   

  	
  Name: Chad Spooner

  
	
   

  	
  Title:   Vice
  President

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  1411 Broadway

  
	
   

  	
   

  	
  New York, New York
  10018

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO TRADE CAPITAL, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Thomas Dowling

  
	
   

  	
  Name: Thomas Dowling

  
	
   

  	
  Title: Executive Vice
  President

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  119 West 40th
  Street

  
	
   

  	
   

  	
  New York, New York
  10018

  
					



 


11