Exhibit 10.13
STATE OF SOUTH CAROLINA )
) AGREEMENT
COUNTY OF GREENVILLE )
THIS AGREEMENT, made on the 28th day of June, 2005, by and between A/R
Funding, Inc., a South Carolina corporation, having its principal office in the
County of Greenville, State of South Carolina, herein referred to as "A/R
Funding" and American Consolidated Management Group, Inc., dba ACMG, dba
Sunutra, of the County of Greenville, State of South Carolina, herein referred
to as "Client."
RECITALS
1. Client is engaged in the general business of fruit powder manufacturing
and normally sells and delivers merchandise and/or services to
customers on a credit basis.
2. Client desires to obtain operating funds for operation of its business
by selling and assigning its accounts receivable.
3. A/R Funding is willing to purchase certain of Client's accounts
receivable, as approved by A/R Funding, according to the terms set
forth herein.
In consideration of the mutual covenants set forth herein, the parties agree as
follows:
SECTION 1.
ASSIGNMENT OF ACCOUNTS RECEIVABLE
Client hereby sells, transfers and assigns to A/R Funding as absolute owner, and
A/R Funding hereby purchases and accepts from Client, except as set forth
hereafter, certain accounts receivable now or hereafter created by Client's
sales or services to customers acceptable to and approved by A/R Funding and
represented by Client to be bona fide existing obligations of its customers
arising out of and acquired by it in its ordinary course of its business, which
receivables are or will be due and owing to Client without defense, offset or
counterclaim.
SECTION 2.
SALES AND DELIVERY OF MERCHANDISE OR SERVICES
All sales and delivery of merchandise or performance of services by Client will
be made in its name with notification to customers that the accounts receivable
(the phrase "accounts receivable" shall include all accounts, notes, trade
acceptances, letters of credit, deposits, money savings, bills of exchange,
pledges, mortgages, choses in action, or any other forms of obligation) thus
created have been assigned, sold, and transferred to A/R Funding in absolute
ownership. Invoices and statements to customers are to be prepared by Client in
a manner and on forms approved by A/R Funding and A/R Funding has the right and
privilege to send such invoices or statements to customers, with the cost of
postage charged to the account of Client. All invoices are to be clearly marked
in a manner specified by A/R Funding, giving full notification to the customer
that the account is payable to A/R Funding at its office in Greenville, South
Carolina. Each invoice shall bear the terms contained in the original order and
no change from the original terms of sale shall be made without A/R Funding's
prior written consent. A/R Funding has the right to institute and maintain
actions in its name or otherwise to collect such accounts, and those actions
shall be at the cost of Client.
SECTION 3.
ASSUMPTION OF CREDIT RISK
A/R Funding, at its option, may advance money against accounts or invoices not
exceeding a credit limit to be established by A/R Funding. If an unadjusted
claim or dispute delays the payment of an account when due, the amount thereof
may be charged back to Client as of the day of the original credit; such charge
back will not be a reassignment of the account receivable and A/R Funding will
retain a security interest in the account receivable as security for all of
Client's obligations to A/R Funding. Client will report to A/R Funding all
rejections and all returns of merchandise and customers claims immediately upon
learning thereof, and will promptly adjust claims and disputes with customers at
Client's own expense. Should any such returned merchandise come into the
possession of Client, Client agrees to notify A/R Funding immediately and to
hold such goods in trust, at Client's sole risk and expense, for and on behalf
of A/R Funding, and to turn over such goods to A/R Funding upon A/R Funding's
request unless the amount credited to Client by reason of the sale of such
merchandise is repaid or otherwise secured to A/R Funding in a manner
satisfactory to A/R Funding; further, A/R Funding shall have the right to sell
the returned merchandise at private or public sale at Client's expense.
Furthermore, A/R Funding shall have the right at all times to settle, compromise
or litigate disputes or claims directly with Client's customers upon such terms
and conditions as A/R Funding may deem advisable and to sell or cause to be sold
without notice to Client any rejected or returned goods at such prices and to
such customers and upon such terms as A/R Funding may deem advisable. If the
amount received from such sale, less the costs and expenses of the sale, is less
than the amount advanced on invoice represented by the merchandise, then Client
shall be charged with such deficiency and A/R Funding shall have full recourse
against Client for such deficiency.
SECTION 4.
PURCHASE PRICE
Client will provide A/R Funding with an assignment of receivables, satisfactory
to A/R Funding, together with the original or true copies of invoices or
statements, as may be specified by A/R Funding, conclusive evidence of shipment,
or other instruments or papers that A/R Funding may require. The purchase price
is to be the face amount of the receivables accepted by A/R Funding, calculated
on the most favorable terms given to the customer, less A/R Funding's service
fee (hereinafter the "service fee"). The Client shall pay a fee of the face
amount of all invoices purchased by A/R Funding. The service fee shall be equal
to One and twenty-five hundredths percent (1.25%) of the face amount of all
invoices purchased by A/R Funding for each thirty (30) days the invoice is
outstanding. In addition, A/R Funding shall charge and Client shall pay interest
at an annual rate equal to Prime plus three Percent (3%) of all funds utilized
by A/R Funding to purchase the invoices. Prime is defined as the prime rate as
published by The Wall Street Journal. Funds utilized by A/R Funding shall be
calculated by A/R Funding on a daily basis based upon all the invoices which are
unpaid and outstanding. The service fee shall be payable upon the purchase of
any invoices by A/R Funding, and A/R Funding may collect the service fee(s) from
either payments owed to the Client or may xxxx Client periodically. A/R Funding
may, upon notice to the Client, change the interest rate and such change shall
be effective upon receipt of the notice by the Client, provided, that A/R
Funding may change the interest rate by a change in A/R Funding's cost of funds
without prior notice to the Client, but must notify the Client of such change on
Client's next settlement statement.
A/R Funding will remit to client on request, and shall have the privilege of
remitting at any time, the proceeds of sales as they are made, or any amounts
standing to client's credit. However, to protect A/R Funding against possible
returns, claims, allowances, expense, or other items properly chargeable to
client's account hereunder, A/R Funding may reserve an amount equal to fifteen
percent (15%) of the face amount of the receivables, which amount is considered
reasonably necessary to cover such contingencies. Such reserve accounts shall
never be less than fifteen percent (15%) of the outstanding receivables. Within
two (2) days of receiving payment, A/R Funding will make available to client the
reserves held on individual paid receivables less deductions by customers, any
unpaid compensation, charges or expenses, and any invoices that A/R Funding has
not been paid within 90 days of billing date or when A/R Funding determines the
invoice to be in dispute or not payable, whichever is earliest. These amounts
will be remitted to client upon the next assignment of invoices.
It is further understood and agreed by and between the parties hereto that the
minimum amount to be purchased shall be the sum of $100,000.00 per calendar
quarter. In the event the amount purchased in any calendar quarter should be
less than $100,000.00, the discount rate stated herein, nevertheless, shall be
calculated on the quarterly minimum sum herein stated. It is further understood
and agreed that the maximum amount outstanding in unpaid invoices at any one
time shall not exceed $500,000.00.
SECTION 5.
BOOK ENTRIES
Immediately on the purchase of an account by A/R Funding, Client will make
appropriate entries upon its books disclosing such purchase, and will execute
and deliver all papers and instruments and do all things necessary to effectuate
this agreement.
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SECTION 6.
AMOUNTS OWED TO A/R FUNDING
Amounts owed by Client to A/R Funding for commission, interest or otherwise are
considered as advances against Client's sales and are chargeable to Client's
current account at any time at A/R Funding's option. If at any time A/R Funding
shall be required to pay any state, federal, or local sales or excise tax on
sales or services performed hereunder, the amount of the tax so paid by A/R
Funding shall be charged to Client's account.
SECTION 7.
SECURITY INTEREST
Client hereby agrees to grant A/R Funding a security interest in all of Client's
accounts receivable, contract rights, and intangibles (whether in the form of
bills of lading, invoices, purchase orders, or any other documents), including
those presently in existence and those acquired hereafter, as well as all
chattel paper and instruments evidencing any obligation to the Client for
payment of goods sold or services rendered. This security interest shall be a
continuing interest and the collateral securing the payment to Client of all
accounts transferred to A/R Funding shall be covered by said security interest
agreement. In the event payment is not made to A/R Funding on any accounts
transferred to A/R Funding or any amounts due and owing to A/R Funding, or in
the event the Client defaults under the Uniform Commercial Code or any other
provisions of this agreement, A/R Funding shall have all of the rights of the
Client under the Uniform Commercial Code and shall have the right to take all
actions necessary, including legal actions against Client's customers or others,
in order to collect accounts assigned to A/R Funding by Client. In the event of
any default on the part of the Client on any of the provisions herein, or should
A/R Funding be required to take legal action to collect any of the accounts
assigned to A/R Funding by Client hereunder, the Client agrees to pay attorneys
fees and legal costs that may be incurred as a result thereof.
In addition to accounts receivable and all of the proceeds thereof, Client also
assigns to A/R Funding all right, title, interest and grant(s) to A/R Funding as
security interest in, a general lien upon and/or right of set-off in the
following collateral to secure all of Client, 's present and future obligations
and indebtedness to A/R Funding: All returned, repossessed and reclaimed goods,
and books and records relating thereto, all letters of credit, deposits, money
savings, hold amounts, reserves, retainage, credits, non factored receivables or
like accounts maintained at or property delivered to A/R Funding.
SECTION 8.
INDEMNITY
Client shall at all times defend and indemnify A/R Funding against all actions,
proceedings, claims, demands, losses, outlays, damage, or expenses, including
legal fees and costs, that A/R Funding may incur in any way in defending or
prosecuting, settling, or discontinuing any proceedings, actions, or claims in
consequence of or arising in any way out of merchandise losses or claims,
whether for breach of contract, failure to deliver merchandise, rejection of
merchandise for any reason whatsoever, damage, destruction or loss of
merchandise (partial or total), breach of warranty (express or implied), or
claims arising out of purchases, sales, transportation, collections on
insurance, care, or custody of such merchandise sold by Client from the time
such merchandise was ordered until the same is finally paid for by a purchaser
approved under the terms of this contract. Client shall also indemnify A/R
Funding against any loss or liability, including attorney fees and costs,
resulting from any acts or omissions of Client or its agents or employees in
connection with the goods, or the sales thereof. Client agrees that A/R Funding
shall in no way be liable for any damage to or loss of any goods or merchandise
in Client's possession, whatever may be the cause of such damage or loss.
SECTION 9.
WARRANTY OF ASSIGNMENT
Client further warrants that none of the accounts being sold and assigned to A/R
Funding have heretofore been sold, transferred or pledged or assigned to any
person, firm, or corporation and will not be sold, transferred or pledged or
assigned at any time during the term of this agreement without the prior written
agreement of A/R Funding, except for sales of inventory in the ordinary course
of business. Client further makes the following express warranties and
representations, in addition to those implied by law or custom:
(1) That said invoices are exactly what they purport to be on
their face, not being forgeries or fictitious but genuine in
every respect.
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(2) That the same do not have any defenses existing against them,
except those appearing on their face, and have not been
compromised in any manner.
(3) That the Client will do nothing to interfere with the
collection of same.
(4) That the Client is the owner of same and has good, legal right
to sell or assign same. A/R Funding shall have the right to
investigate and approve each individual invoice, and A/R
Funding shall not be obligated to accept any assignment unless
and until that assignment is approved by A/R Funding.
(5) That the Client has paid all taxes and Worker's Compensation
Insurance which have become due and payable.
(6) That there are no judgments, assessments or liens filed
against Client or any property, real or personal, of Client.
SECTION 10.
WARRANTY OF SOLVENCY
Client warrants its solvency, and should it receive any checks, drafts, notes,
acceptances, other moneyed instruments, or cash in payment of any of the
receivables assigned to A/R Funding hereunder, such payment will immediately be
turned over to A/R Funding in its original form. A/R Funding, or such persons as
it may from time to time designate, shall have the right to endorse all such
instruments in Client's name or otherwise.
SECTION 11.
PROFIT AND LOSS STATEMENT
Client will submit to A/R Funding, monthly and at A/R Funding's request, a
profit and loss statement signed by an officer or employee of Client in behalf
of and as the act of the Client within 20 days after the close of each month,
covering the business for the month immediately preceding the statement. In
addition, Client will furnish A/R Funding a semi-annual balance sheet on
Client's business, accompanied by a profit and loss statement from the beginning
of Client's then current fiscal year. Such annual balance sheet and accompanying
profit and loss statement shall be prepared by an independent certified public
accountant, accounting practitioner, or bookkeeper approved by A/R Funding, who
has no pecuniary interest in Client's business. All the books, records,
accounts, corporate records, bank statements, and records of deposit of Client,
as well as any other financial records maintained by Client, shall be open to
inspection by A/R Funding, and any accountant or auditor designated by A/R
Funding, for all purposes and at all times during normal business hours at
Client's main place of business.
SECTION 12.
LIMITED POWER OF ATTORNEY
Client hereby constitutes Xxxxx X. Xxxxxx, or any other person whom A/R Funding
may designate, as Client's attorney in fact with power to receive, open, and
take action on all mail addressed to Client; to notify postal authorities to
change the address for delivery of mail addressed to Client to such address as
A/R Funding may designate; to endorse in Client's name any notes, acceptances,
checks, drafts, money orders, and other commercial papers and documents evidence
of payment or collateral that may come into A/R Funding's possession, to sign
Client's name on any invoice or xxxx of lading relating to any account, on
drafts against debtors, assignments and verifications of accounts to any debtor;
and to do all other acts and things necessary to carry out this agreement. All
acts of such attorney or designee are hereby ratified and approved, and such
attorney or designee shall not be liable for any acts of commission or omission,
nor for any error of judgment or mistake of law or fact. This power, being
coupled with an interest, is irrevocable while any purchased account shall
remain unpaid.
SECTION 13.
BREACH OF WARRANTY
If any warranty or covenant herein, express or implied, shall be broken or
violated, whether caused by the act or the fault of Client, a debtor, or others,
A/R Funding shall be entitled to recover from Client or Client's guarantors the
damages thereby sustained, including, but not limited to, all attorney's fees
and costs, collection charges, and all other expenses that may be incurred by
A/R Funding to enforce payment of any account, either as against the debtor,
Client, or it guarantors, or in the prosecution or defense of any action or
proceeding related to the subject matter of this agreement.
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SECTION 14.
WAIVER
A/R Funding's waiver of a particular breach by Client of any covenant or
warranty herein contained shall not be deemed to constitute a waiver of any
subsequent breach. A/R Funding's failure at any particular time to exercise a
right or privilege granted to it herein shall not be deemed to constitute a
waiver of such or any other right or privilege.
SECTION 15.
TERMINATION
Either party may terminate this agreement as to future transactions on ninety
(90) days' written notice. However, the requirement as to minimum amounts to be
factored as set out above will apply during the notice period and until the
contract is terminated. In the event, the Client terminates the contract by
giving written notice and fails to maintain the minimum amounts to be factored
during the notice period, or any portion thereof, a termination fee based upon
90 days will be charged based upon the minimum amounts to be factored in this
agreement. If factoring continues during the notice period and the minimums are
met, no termination fee will be charged. Not withstanding the foregoing, this
agreement may be terminated immediately at any time and without notice by A/R
Funding should:
(1) Client become insolvent, seek any relief under the Bankruptcy
Code or any similar insolvency law.
(2) Client be the subject of a petition thereunder.
(3) Client call a meeting of creditors.
(4) Client breach any warranty or representation contained herein
or violate any term or provision of this agreement.
(5) Client make an assignment for the benefit of creditors.
(6) Client suspend its business, fail or be unable to pay its
debts when due or suffer the appointment of a receiver or
custodian.
(7) A/R Funding receive notice of a federal or state tax lien,
levy or assessment, or if A/R Funding becomes aware that there
is a deficiency in the payment of any federal or state taxes,
whether or not a lien has been filed with respect to such
taxes.
(8) A/R Funding reasonably determine in good faith that it is
insecure with respect to the payment of all or any part of
Client's obligation. Should any of the above occur, the 90
days termination fee as stated above shall apply.
Upon the effective date of termination, all obligations of Client to A/R Funding
shall become immediately due and payable without further notice or demand
irrespective of any maturity dates established prior thereto. In addition, all
the terms, provisions and conditions hereof, including the security interests
herein granted to A/R Funding shall continue to remain in full force and effect
until all Client's obligations to A/R Funding are paid in full. In the event A/R
Funding shall cease to act as A/R Funding for Client, Client agrees to furnish
A/R Funding with indemnity satisfactory to A/R Funding that will protect A/R
Funding against possible charges to Client under the terms of this Agreement and
with release satisfactory to A/R Funding of all claims Client may have against
A/R Funding, and until Client does so, A/R Funding may hold any balance
remaining to Client's credit in the Clients credit account as security for all
obligations of Client to A/R Funding. Client shall pay A/R Funding upon demand
all costs and expenses, including attorney fees, incurred by A/R Funding to
obtain or enforce payment of any obligations due from Client to A/R Funding or
in the prosecution or successful defense of any action, including any existing
and/or future preference claim in any bankruptcy court, or proceeding concerning
any matter growing out of or related to this agreement, the factoring of
Client's accounts receivable by A/R Funding, or any obligations owing by Client
to A/R Funding.
Termination of this Agreement shall not terminate, extinguish, or remove any
liens or security interests granted to A/R Funding hereunder until Client has
fully paid and discharged any and all of its obligations to A/R Funding.
SECTION 16.
CONTROLLING STATE LAW
Inasmuch as the transactions hereunder will take place at A/R Funding's office
in the City of Greenville, State of South Carolina, this agreement and all
transactions, assignments, and transfers hereunder, and all rights of the
parties shall be governed as to validity, construction, enforcement, and in all
other respects by the laws of the State of South Carolina.
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SECTION 17.
MISCELLANEOUS
Neither party shall be bound by anything not expressed herein nor shall this
agreement be modified orally. The captions in this agreement are for convenience
of reference only and shall not define or limit any of the terms or provisions
hereof.
Client shall be liable for, and A/R Funding may charge Client's account with all
costs and expenses of collecting any returned checks, all costs and expenses of
filing financing statements including any refiling or recording taxes, the costs
of Client credit updates, the making of lien searches, and any attorney fees and
expenses that may be incurred by A/R Funding in perfecting, protecting,
preserving or enforcing its security interests and rights hereunder.
Client acknowledges that A/R Funding may obtain financing from a financial
institution and in connection therewith: (a) consents to A/R Funding's granting
a security interest in all of its rights under this Agreement to the financial
institution, the documents executed in connection therewith and all collateral
thereunder, and (b) agrees that the financial Institution shall be a beneficiary
of all its representations, warranties and covenants in this Agreement and may
exercise any power of attorney given by Client to A/R Funding under this
Agreement or otherwise.
SECTION 18.
FEDERAL TAX LIENS
The Client shall be responsible for the timely payment of all tax withholdings
and all other payroll tax payments for the employees and shall be responsible
for the timely filing of all employment tax returns, including without
limitation, all Federal and State employee withholding returns and payroll tax
returns and failure to do so will constitute a breach of this agreement.
SECTION 19.
SUCCESSORS AND ASSIGNS
This agreement shall be binding upon the parties hereto and their successors and
assigns.
SECTION 20.
ACCEPTANCE
This agreement shall not become effective until accepted by A/R Funding at its
office in the City of Greenville, State of South Carolina.
In witness whereof, the parties have executed this agreement at Greenville,
South Carolina, the day and year first above mentioned.
Assignor: Accepted by:
American Consolidated Management Group, Inc., A/R Funding, Inc.
dba ACMG, dba Sunutra
BY: /s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Director Xxxxx X. Xxxxxx, Chairman
Bank Signature Guarantee Stamp DATE:
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(Signature Required)
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