Exhibit 10.16
NON-NOTIFICATION
FACTORING AGREEMENT
NationsBanc Commercial Corporation
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
We are pleased to set forth herein our agreement by which you are to act as
our factor, effective as of June 18, 1998.
1. We agree to do all of our business through you as our sole factor. We
hereby assign and sell to you as absolute owner all of our present and future
accounts, contract rights and other forms of obligation for the payment of money
arising out of the sale of goods or rendition of services (hereinafter
collectively termed "receivables") which are acceptable to you. we further sell
and assign to you all of our interest in the goods represented by receivables
and in all goods that may be returned by customers, all our rights as an unpaid
vendor or lienor and all our rights of stoppage in transit, replevin and
reclamation relating thereto.
You hereby purchase from us, without recourse except as hereinafter
set forth, all receivables which have been fully approved by you, which approval
has not been withdrawn by you as provided below ("Approved Receivables").
Receivables which, in whole or in part, are not approved by you, as provided
below, but am otherwise acceptable to you, are hereby purchased by you with full
recourse to us to the extent not approved.
2. On all Approved Receivables, you agree to assume any loss which is due
solely to the financial inability of the customer to pay at maturity (the
"Credit Risk"), provided the customer has received and accepted the goods and/or
services which gave rise to such Approved Receivables without any Dispute The
term "dispute" shall mean any dispute, deduction, claim, offset, defense or
counterclaim of any kind.
The amount, terms of payment and delivery, and all other conditions of
each prospective sale shall be submitted to you for your prior written approval,
and each approved sale shall be made only in accordance with such approval
(however given), which may be withdrawn at any time before actual delivery of
the merchandise or rendition of the services to the customer. Without limiting
the foregoing, your approval shall automatically be canceled if any terms are
changed or the amount of the sale is increased without your prior written
consent, or if delivery is made more than forty-five (45) days after the
approved delivery date or more than forty-five (45) days after the date of
approval if no delivery date is specified.
3. All invoices shall be mailed by us to the customers and shall be
payable only in United States dollars. We will keep all shipping and delivery
receipts and copies of all invoices at our office available for your inspection,
and we shall deliver them to you promptly at your request. The sale of our
receivables to you and your ownership thereof will be properly reflected on our
books. We shall furnish you: (i) by the fifth day of each month a certified
detailed ageing of all receivables outstanding as of the end of the previous
month broken down by customer and invoice and a monthly report of remittances
received and credits applied by customer in a form satisfactory to you, (ii)
each week a summary ageing by customer of Approved Receivables in a form
satisfactory to you; and (iii) weekly certified listings of newly created
Approved Receivables in a form satisfactory to you. You shall have the right at
any time or times to require us to furnish you with aged trial balance at more
frequent intervals.
4. The purchase price of receivables accepted by you is to be the net
amount of such receivables, less your commission thereon. "Net amount" shall
mean the gross amount less all returns, discounts (calculated on shortest terms)
and credits or allowances of any nature at any time issued, owing claimed by
customers, granted or outstanding.
5. We are hereby authorized (until you shall otherwise direct) to collect
and enforce the receivables for your benefit. We shall use our best efforts, in
accordance with sound commercial practice and instructions provided by you, to
maximize such collections, and shall pay all costs and expenses of such
collection effort. Our failure to follow your instructions for a receivable
shall release you from Credit Risk for that receivable. We are authorized to
issue credits on any receivables (other than receivables specifically assigned
to you as provided below) in accordance with our normal
business practices. All proceeds of receivables shall be received by us for your
account but we are authorized to deduct therefrom the purchase price payable by
you with respect to the receivables so collected. Collections, if not identified
to specific invoices by the customer, shall be allocated to the oldest open
Approved Receivables. Except as provided below, you shall not have any liability
to us for any part of the purchase price of receivables which is not collected
from the customer. You shall have the right at all times, in our name or yours,
to confirm and verify receivables and to obtain credit information from
customers.
If any Approved Receivable is unpaid for one hundred twenty (120) days
after the due date thereof then provided (i) there shall not exist any Dispute
with respect to such Approved Receivable (ii) the status of such Approved
Receivable was correctly ad forth on the aged trial balances furnished to you
from time to time and (iii) you still bear the Credit Risk as to such Approved
Receivable, we may at our option, deliver to you a specific assignment of such
Approved Receivable, together with copies of the applicable invoices, slipping
and delivery receipts and any other information and documents requested by you
relating thereto. You may require us to deliver such an assignment and any
other item (including evidence of collection efforts), at any time with respect
to (a) an Approved Receivable that is unpaid in part or in whole at the due date
thereof, and (b) any or all other receivables, approved or not, owing by the
customer whose Approved Receivable is being specifically assigned to you.
Within sixty (60) days of the delivery to you of any such assignment and other
items, you will pay to us the purchase price of such Approved Receivable(s). We
will promptly turn over to you any payment received by us on receivables which
have been specifically assigned to you.
6. You shall be entitled to a commission on all receivables purchased by
you, which commission shall be payable on the 10th day of each month with
respect to receivables purchased during the preceding month and shall be in an
amount equal to three tenths of one percent (.3%) of the gross amount of such
receivables less applicable discounts. Such commissions shall be due even if the
approval for the receivable is withdrawn or the receivable is charged back to
our account.
7. You will send us a monthly statement of our account which shall
constitute an account stated and be binding upon us except to the extent that
written exceptions thereto are served upon you within thirty (30) days after
such statement is rendered.
8. We hereby grant to you a security interest in, and right to setoff
with respect to, all receivables (whether or not acceptable to you or
specifically assigned to you and whether arising before or after termination of
this Agreement) and in all proceeds thereof as security for payment and
performance of all of our obligations at any time owing to you, fixed or
contingent, whether arising under this or any other agreement or otherwise
("Obligations"). We agree to pay to you on demand any debit balance at any time
existing in our account, with interest at the Prime Rate less three quarters of
one percent (.75%) which is the rate of interest announced from time to time by
NationsBank, N.A. in Atlanta, Georgia as its "Prime Rate".
We agree to have prepared and to furnish to you within ninety (90) days
after the close of our fiscal year, financial statements which have been audited
and certified by an independent certified public accountant.
9. We warrant that all receivables are and will, at the time of actual
assignment to you, be bona fide and existing Obligations of our customers
arising out of the sale of goods and/or the rendition of services in the
ordinary course of our business, free and clew of all liens, security interests
and encumbrances; that all such receivables are and will be owned by and owing
to us without any Dispute; and that we are now and shall at all times during the
term of this Agreement be solvent and fully authorized to assign and sell the
receivables to you hereunder without any restriction of any kind and to grant
you the security interest granted herein. In addition to all other rights to
which you are entitled under this Agreement, if there is any Dispute (including,
without limitation, any Dispute relating to goods or services already paid for,
or relating to receivables other than the receivable on which payment is being
withheld) as to any receivable actually assigned to and paid for by you or if
any such receivable evidenced by an invoice for less than Fifty Dollars ($50.00)
is unpaid at its maturity, you may at any time charge the amount of such
receivable back to us. Immediately upon the occurrence of any Dispute, and
regardless of the date (if any) on which you charge back the affected
receivable, the Credit Risk on such receivable shall automatically revert to us.
You may also charge back and be relieved of the Credit Risk with respect to the
amount of any receivable which is not paid at maturity due to acts of God, war,
civil strife or the like.
10. In the event of any breach by us of any provision, or upon the
termination, of this Agreement, we will pay all Obligations to you upon demand.
This Agreement may be terminated by either party giving written notice to the
other by certified or registered mail or prepaid telegram, stating a termination
date not less than sixty (60) days from the date such notice is sent; provided,
however, that you may give us such notice at any time, and we may give such
notice to you to take effect only upon any annual anniversary of the effective
date of this Agreement. The effective date shall be the date of
your acceptance of this Agreement, set forth below, or, if different, the date
set forth in the first sentence of this Agreement. Notwithstanding the
foregoing: should we be in default under this Agreement or any obligation to
you, make a general assignment for the benefit of creditors, become insolvent,
or call a meeting of creditors; or should any action or proceeding be commenced
by or against us in bankruptcy or for an arrangement, reorganization, receiver
or the like; then, in any such event you shall have the right to terminate this
Agreement at any time without notice. Notwithstanding any termination of this
Agreement, all of your rights and security interest and all of the terms,
conditions, and provisions hereof shall continue in full force and effect until
all transactions entered into prior to termination have been fully concluded and
all Obligations to you have been paid in full.
11. This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns cannot be changed or
terminated orally, and is the complete agreement between the parties. This
Agreement is made in the state of New York and shall be interpreted according to
the laws of said state. Each party waives the right to trial by jury. No delay
or failure on your part in exercising any right or option hereunder shall
operate as a waiver of such or of any other right or option, and no waiver
whatever shall be valid unless in writing signed by you and then only to the
went therein set forth.
12. Receivables under this Agreement shall include those created by our
doing business and rendering billing under the following trade styles/divisions,
all of which have been duly and properly registered: Energie, Currants, ▇▇▇▇▇
▇▇▇▇▇ or under trade styles similar thereto.
ATTEST: ▇▇▇▇-▇▇ Knitwear, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Asst. Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
[Corporate Seal] Date: June 18, 1998
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Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇
Accepted in Atlanta, Georgia as of the
18th day of June, 1998
NationsBanc Commercial Corporation
By: /s/ Sr. Vice President
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