EXHIBIT 10.2
AMENDED AND RESTATED
--------------------
AGREEMENT FOR PURCHASE AND SALE OF ACCOUNTS
-------------------------------------------
This Amended and Restated Agreement for Purchase and Sale of Accounts is
entered into effect on the 9th day of April, 1998, by and between SILVERADO
FOODS, INC., NONNI'S and THE BAGEL PLACE DIVISIONS OF SILVERADO FOODS, INC.,
all Oklahoma corporations located at 0000 X. Xxxxxx Xxxxx 000, Xxxxx, Xxxxxxxx
00000; 0000 Xxxx Xxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, and 0000 Xxxx Xxxxxxx,
Xxxxx X0, Xxxxx Xxx, Xxxxxxxxxx 00000 ("Seller") and ACCORD CAPITAL
CORPORATION, an Oklahoma corporation located at 0000-X Xxxx 00xx Xxxxxx, Xxxxx,
Xxxxxxxx 00000 ("Accord"). Seller and Accord hereby agree as follows:
1. Definitions.
(a) "Accounts" shall mean the accounts described on Schedule A
attached hereto and made a part hereof as amended or supplemented from time
to time.
(b) "Account Debtors" shall mean the customers of Seller referenced
on Schedule A attached hereto and made a part hereof as amended or
supplemented from time to time.
(c) "Initial Payment" shall mean a sum equal to eighty percent (80%)
of the face amount of each Account described on Schedule A attached hereto
and made a part hereof as amended or supplemented from time to time.
(d) "Obligations" shall mean all indebtedness and obligations of
Seller owed to Accord pursuant to this Agreement or otherwise, plus any
accrued and unpaid interest and all expenses including (without limitation)
all attorneys fees and expenses paid or incurred by Accord in attempting to
collect Obligations or any part thereof (whether incurred through the
necessity of litigation or otherwise) and in all other ways enforcing the
terms of this Agreement.
(e) "Reimbursements" shall mean those expenses to be reimbursed by
Seller to Accord pursuant to paragraph 8 hereof.
(f) "Reserve" shall mean a sum equal to twenty percent (20%) of the
face amount of each Account described on Schedule A attached hereto and
made a part hereof as amended or supplemented from time to time.
2. Amount Subject to Factoring. Subject to the terms and conditions
stated herein, Accord commits to purchase Accounts not to exceed the
stated
amount of Three Million Dollars ($3,000,000.00) of the Accounts
purchased by Accord. (the "Maximum Amount").
3. Fees Due From Seller. Factor Commitment Fee. Seller agrees to pay
Accord at the time of closing from the Initial Payment an amount equal
to one percent (1%) of the Maximum Amount as a loan commitment fee for
the establishment of the Agreement, which Seller agrees is a
reasonable amount relating to the establishment of such factoring
relationship.
4. Purchase and Sale of Accounts.
(a) Seller hereby sells, assigns, transfers, conveys and delivers to
Accord all of Seller's right, title and interest in and to the Accounts,
the invoices evidencing the Accounts and all other documents related to or
associated with the Accounts. The sale of the Accounts is unconditional and
without reservation of any kind.
(b) Accord shall deliver the Initial Payment to Seller at the time
each of the Accounts is sold, assigned, transferred and delivered to Accord
less a fee owed to Accord equal to two and one quarter percent (2.25%) of
the face amount of each Accounts. Upon collection of each of the Accounts
from the Account Debtors, Accord shall deliver a check to Seller (drawn
against the Reserve) for the aggregate amount collected less (i) the
Initial Payment, (ii) a fee owed Accord equal to One percent (1%) of the
face amount of the collected Account(s) for each additional thirty (30) day
period (or part thereof) from the date payment is received on each of the
collected Accounts. (iii) all Reimbursements, and (iv) all other amounts
due Accord hereunder. Checks shall be delivered to Seller pursuant to the
following schedule:
Account Collection Date Payment Date to Seller
----------------------- ----------------------
On or after the 1st day and before 25th day of the
The 15th day of a month same month
On or after the 15th day and on or 10th day of the
Before the last day of a month succeeding month
The Reserve may be applied by Accord prior to any distribution to Seller
first (i) compensating Accord for any breach by Seller of any provisions of
this Agreement and (ii) compensating Accord for any sums owing to Accord
pursuant to this Agreement including (without limitation) all Obligations.
Seller understands that (i) the obligations of Accord under this
subparagraph 2(b) are unsecured general obligations of Accord, (ii) Seller
has no rights in or claim to amounts collected on any of the Accounts, and
(iii) the Reserve is a payment mechanism and does not
2
constitute property of Seller or funds held in trust by Accord for the
benefit of Seller.
Accord shall deduct from the first Initial Payment to be delivered to
Seller by Accord the actual costs and expenses of Accord's legal counsel
incurred in connection with the preparation of documents, out of pocket
expenses and negotiating the transactions contemplated herein in an amount
of $4,750.
5. Seller's Representations, Warranties and Covenants. Seller represents,
warrants and covenants to Accord that:
(a) Seller is the sole owner of the Accounts. The Accounts are free
and clear of all liens, claims and encumbrances and have not been assigned
or encumbered in any manner. Seller has the full power and authority to
sell each of the Accounts and has duly authorized their sale to Accord
pursuant to this Agreement.
(b) Each Account is for the amount stated on Schedule A and there are
no setoffs, deductions, disputes, contingencies or counterclaims against
Seller or any of the Accounts. In the event of a misrepresentation by
Seller (whether intentionally or otherwise) as to the amount of an Account
or a reduction by an Account Debtor in the amount paid or owing on an
Account for any reason, Accord shall provide notice to Seller and may
reduce by the same amount the Reserve and any other payments received on or
for the account of Seller hereunder. In addition, Accord may demand
reimbursement directly from Seller for the amount of any deficiency and
Seller shall immediately deliver such amount to Accord. Each Account is
based upon an actual sale and delivery of merchandise or services and the
Account Debtor is liable for the payment of the amount stated on the
Account according to its terms. The original invoice evidencing the Account
bears notice of the assignment of the Account to Accord. Seller shall
indemnify and protect Accord against liability, loss or expense caused by
or arising out of direct rejection of goods or alleged claims, defenses, or
offsets of every kind.
(c) Each Account is current and presently due and owing to Seller.
Payment on each Account is not contingent upon fulfillment of any
obligation or condition at any time.
(d) Accord shall be the sole owner and holder of the Accounts,
together with any proceeds, contract rights and/or claims relating to the
Accounts, all of which are to be deemed a part of the Accounts. In the
event Seller receives payment for all or any portion of any of the
Accounts, Seller shall immediately notify Accord and shall hold all checks
3
and other instruments received by Seller in trust for Accord and shall
deliver to Accord such checks and other instruments (or, at the direction
of Accord, the proceeds thereof) without delay.
(e) In no event shall Accord be obligated to pursue collection of the
Accounts by litigation or otherwise.
(f) Accord and its directors, officers and agents shall have the
right to sign and endorse on behalf of Seller all checks, drafts and other
forms of payment received by Accord in connection with the payment of any
Account. Seller appoints Accord or any other person, whom Accord may from
time to time designate, as Seller's attorney-in-fact with power to:
(i) endorse Seller's name on any checks, drafts or other
forms of payment or security that may come into Accord's possession;
(ii) sign Seller's name on notices of assignment, financing
statements, verifications of Accounts and notices to Account Debtors;
(iii) receive, open and dispose of all mail addressed to
Seller and received by Accord;
(iv) send requests for verification of Accounts to Account
Debtors; and
(v) do all things necessary to carry out the terms of this
Agreement.
This power of attorney granted Accord, being coupled with an interest, is
irrevocable as long as any Obligation remains outstanding. Accord shall
not be liable to Seller for any acts of commission or omission nor for any
error in judgment or mistake of fact or law.
(g) Should Seller at any time breach any provision of any agreement
between Seller and Accord including (without limitation) this Agreement,
Accord shall have the right to notify Seller in writing that Accord is
requiring Seller to repurchase immediately all unpaid Accounts under this
and all other agreements between Seller and Accord. Seller shall repurchase
all unpaid Accounts immediately upon receipt of such written notice if
Seller has not cured such breach to the satisfaction of Accord. In such
event, Seller agrees that, in addition to paying Accord all sums otherwise
due Accord from Seller, Seller shall be responsible for paying Accord an
amount equal to (i) the Initial Payment advanced by Accord against all such
unpaid Accounts, (ii) the fee which is earned by
4
Accord to the date payment is received by Accord, and (iii) any
Reimbursements.
(h) Accord reserves the right to return to Seller all Accounts that
are not paid in full within sixty (60) days after the date of such Account
or upon notice from an Account Debtor that such Account Debtor will not be
paying its respective Account(s) in full. Accord may reduce the amount of
the Reserve by the amount of the Account(s) returned to Seller or if the
Reserve is insufficient to pay Accord in full, Seller immediately shall pay
Accord the amount due Accord upon return of the Account(s) and all other
amounts due under this Agreement. No Account shall be deemed returned to
Seller until such time as Accord shall have received all amounts due to
Accord.
(i) In addition to the rights granted Accord under the Uniform
Commercial Code, Accord shall have all of the rights of an unpaid seller,
including the rights of replevin, reclamation, and stoppage in transit, and
any merchandise so recovered will be considered, as between Accord and
Seller, as returned merchandise.
(j) All of Seller's books, accounts, correspondence, records and
papers pertaining to the Accounts shall be available for Accord's
inspection during regular business hours.
(k) From the date of this agreement and until the date one hundred
fifty (150) days form the date of this Agreement, Seller shall offer to
sell to Accord all accounts receivable of Seller on the terms and
conditions set forth herein. Accord, in its sole and absolute discretion,
shall then have the right and option to review and acquire all or any of
such accounts receivable offered to Accord within five (5) business days
after such offer is made to Accord. Accord shall be under no obligation to
purchase any accounts receivable of Seller. Accord shall process and mail
all invoices of Seller.
(l) Seller acknowledges that Accord may grant a security interest in
the Accounts, including any proceeds, contract rights and/or claims
relating to the Accounts, to secure obligations owing by Accord to one or
more secured parties. Seller hereby joins in the granting of a security
interest in the Accounts in favor of such secured parties and agrees that
the rights of such secured parties with respect to the Accounts and all
amounts collected thereon will be prior and paramount to any rights or
claims of Seller with respect to the Accounts or any amounts collected
thereon.
6. Security. In order to secure Seller's Obligations, Seller hereby
grants to Accord a security interest in and lien upon all of Seller's right,
title and interest in and to
5
all of Seller's existing and future accounts, contract rights, receivables,
accounts receivable, claims, general intangibles, equipment, inventory and all
proceeds, substitutions, renewals and products thereof. Seller agrees to comply
with all appropriate laws in order to perfect Accord's security interest in and
to such collateral and Seller shall execute and deliver from time to time at the
request of Accord, any financing statement(s) or additional documents or
instruments, including a security agreement separate from this Agreement.
7. Governing Law/Forum Selection. This Agreement is made and entered
into in Tulsa, Oklahoma, and shall be governed by the laws of the State of
Oklahoma. Seller submits to personal jurisdiction and venue in all state and
federal courts situated in Tulsa, Oklahoma. Seller waives all objections to in
personam jurisdiction, venue and convenience of the forum of such courts with
respect to any suit, proceeding or action. SELLER FULLY, VOLUNTARILY AND
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY REGARDLESS OF THE PARTICULAR COURT
OR FORUM WITH RESPECT TO ANY CLAIM, ACTION, COUNTERCLAIM OR DEFENSE WHATSOEVER
OF ACCORD OR SELLER, WHETHER OR NOT SUCH CLAIM, ACTION, COUNTERCLAIM OR DEFENSE
RELATES OR PERTAINS TO THIS AGREEMENT.
8. Collection and Attorney's Fees. Accord shall have the full power and
authority to collect each Account, through legal action or otherwise, and may,
in its sole discretion, settle, compromise, or assign (in whole or in part) any
of the Accounts, or otherwise exercise any other right now existing or hereafter
arising with respect to any of the Accounts, if such action will facilitate
collection. If Accord is required to enforce its rights hereunder against Seller
or a guarantor of the Obligations of Seller, by virtue of a breach by Seller of
the provisions of this Agreement, then in addition to any other obligations
hereunder, Seller and each guarantor shall jointly and severally be liable for
the full amount of the attorney's fees incurred in collection, together with
interest on the amount of the Accounts from the date hereof to the date of
satisfaction at the maximum rate permitted by law.
9. Complete Agreement. This Agreement and the documents executed in
connection herewith set forth the complete and entire understanding between
Seller and Accord and may be modified only by a written instrument signed by the
party to be bound thereby. Every provision of this Agreement is intended to be
severable, and if any term or provision hereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the
remaining provisions shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
10. Reimbursements. Seller agrees to reimburse Accord for the following
expenses:
6
(a) credit research, analysis, credit report preparation and review
of trade credit information at $22.50 for each report;
(b) postage, long distance telephone, facsimile and duplication at
Accord's cost;
(c) processing fee of $1.00 for each invoice;
(d) U.C.C. search and filing fees; and
(e) $2,500.00 Quarterly Monitoring Fee.
(f) wire transfer of immediately available funds to Seller at $15.00
per transfer.
11. The rights and obligations of Accord may be assigned by Accord and
Seller shall, within five (5) days after written request, execute and deliver
any and all documents requested by Accord to evidence such assignment and to
affirm Seller's Obligations to such assignee.
The undersigned have entered into this Amended and Restated Agreement for
Purchase and Sale of Accounts as of the day and year first above written.
ACCORD CAPITAL CORPORATION SILVERADO FOODS, INC.,
0000-X Xxxx 00xx Xxxxxx NONNI'S AND THE BAGEL PLACE
Tulsa, Oklahoma 74114 DIVISIONS OF SILVERADO FOODS, INC.
0000 X. Xxxxxx Xxxxx 000
Xxxxx, Xxxxxxxx 00000
By /s/ Xxxxx X. Xxxx By /s/ Xxxxxxxx Field
--------------------------------- ---------------------------------
Xxxxx X. Xxxx, President Xxxxxxxx Field, Chairman of the
Board
7
EXHIBIT A
---------
Accounts to be added by supplement approved by Seller and Accord.
8
