joez_8k-ex1001.htm


    Exhibit
10.1

     

     

     

    March 11,
2009

    


    Joe’s
Jeans Subsidiary, Inc.

    5901 S.
Eastern Ave.

    Commerce,
CA  90040

    


    


    Re:           Global Customer Surcharge
Letter Agreement

    


    Ladies
and Gentlemen:

    


    We refer
to the Factoring Agreement between you and us dated June 1, 2001, as
supplemented and amended (herein the "Agreement").
Capitalized terms used but not defined in this letter shall have the meanings
given to them in the Agreement.

     

    This
shall confirm our mutual understanding and agreement that, notwithstanding
anything to the contrary contained in the Agreement, from time to time upon us
providing notice to you substantially in the form of Exhibit A attached
hereto (each, a “Surcharge Notice”)
and without further consent from you, all of your accounts receivable arising
from sales to any Customer (as defined below) identified in a Surcharge Notice
(all such accounts receivable being referred to herein as "Customer Accounts")
shall be subject to the following express terms and conditions:

     

    
      	
              a.

            	
              Only
      those sales to such Customer that are made by you on terms of sale which
      do not exceed the days listed in the applicable Surcharge Notice, 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 that is a Factor Risk Account and whose terms of
      sale do not exceed the days listed, at the surcharge rate, all as set
      forth on such Surcharge Notice.  The surcharge shall be in
      addition to any other fees or commissions we are entitled to charge you
      under the Agreement, shall be due and charged to your account in the same
      manner as factoring fees or commissions are charged thereunder, and shall
      not be included in the calculation of any commissions under the
      Agreement.

            


    

     

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    
      	
              c.

            	
              You
      shall continue to request credit approvals from our Credit Department on
      all orders from such Customer, as per the Agreement.  Any
      Customer Account whose terms of sale exceed the days listed on the
      applicable Surcharge Notice, or which has not been approved by us as to
      the Credit Risk as per the Agreement, shall be at your sole Credit
      Risk.

            


    

     

    
      	
              d.  

            	
              All
      payments, dividends, recoveries or proceeds received on Customer Accounts
      shall be applied in accordance with the
  Agreement.

            


    

     

    
      
        	
                e. 

              	
                Any
      terms set forth in a Surcharge Notice with respect to any Customer may be
      modified from time to time by us providing you with a subsequent Surcharge
      Notice for such Customer.

              


      

    

     

    
      	
              f.  

            	
              You
      may elect, at your discretion, upon receipt of a Surcharge Notice, to not
      factor the Customer Accounts with us or to factor them as Client Risk
      Accounts in accordance with the
Agreement.

            


    

     

    For
purposes of this agreement, the term “Customer”,
individually and “Customers”,
collectively, shall mean: (a) those customers identified in any Surcharge Notice
and their respective divisions, trade names, affiliates and subsidiaries, (b)
any such parties after the commencement and during the continuation of any
Insolvency Event (as defined below), (c) any such parties following their
emergence from an Insolvency Event, and (d) the respective successors and
assigns of such parties. “Insolvency Event”
shall include any proceeding or petition filed or instituted by or against the
Customer(s) under any local, state or federal law, rule or regulation of any
applicable foreign or domestic jurisdiction governing the Customer pertaining to
a bankruptcy, insolvency, receivership, assignment for the benefit of creditors
or proceeding to compromise or adjust the debts of the Customer, as
applicable.

     

    Nothing
in the letter agreement, shall affect or modify any existing Customer Surcharge
Letter Agreement between us or any other letter agreement between us relating to
surcharges that may be charged by us with respect to accounts owing by any of
your customers, all of which letter agreement shall continue and be in full
force and effect.  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/
Darrin Beer

    Title:
Senior Vice President

    


    


    


    Read and
Agreed to:

    


    JOE’S
JEANS SUBSIDIARY, INC.

    


    


    By:/s/
Lori Nembirkow

    Name:
Lori Nembirkow

     

     

     

     

     

     

     

    
 

    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    EXHIBIT
A

    


    FORM OF SURCHARGE
NOTICE

    


    


    


    


    [Date]

    


    


    Joe’s
Jeans Subsidiary, Inc.

    5901 S.
Eastern Ave.

    Commerce,
CA  90040

    


    


    Re:           Surcharge
Notice

    


    Ladies
and Gentlemen:

    


    Reference is hereby made to that
certain Global Customer Surcharge Letter Agreement between us dated as of
__________, 2009 (as amended from time to time, the “Global Surcharge
Agreement”).  Capitalized terms used herein and not otherwise
defined herein shall have the meaning set forth in the Global Surcharge
Agreement.

    


    This notice shall constitute a
Surcharge Notice as defined in the Global Surcharge
Agreement.  Accordingly, (i) all accounts receivable arising or
created from sales to the following Customer after [Insert Effective Date] shall
be subject to all of the terms and conditions of the Global Surcharge Agreement,
(ii) only those sales to such Customer that are made by you which do not exceed
the following will be eligible for credit approval as provided in paragraph (a)
of the Global Surcharge Agreement and (iii) we shall charge your account with a
surcharge at the following rate as provided in paragraph (c) of the Global
Surcharge Agreement.

    


    
      
        
          
            
              
                	
                        Customer Name

                        (and
      any and all trade names, divisions, subsidiaries and
      affiliates)

                         

                      	
                        Terms of Sale

                      	
                        Surcharge Rate

                      
	 
      	 
      	 
      


              

            

          

        

      

    

    


    


    


    


    
      
        
          
            	 
      	
                    Sincerely
      yours,

                  
	 
      	 
      
	 
      	
                    THE
      CIT GROUP/COMMERCIAL

                  
	 
      	
                    SERVICES,
      INC.

                  
	 
      	 
      
	 
      	 
      
	 
      	
                    By:_________________________

                  
	 
      	
                    Name:_______________________

                  
	 
      	
                    Title:
  ________________________