EXHIBIT 10.4
BANK OF AMERICA
Bank of America Commercial Finance
Cash Plus/Factoring
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
March 6, 2000
ADDENDUM TO FACTORING AGREEMENT
The Factoring Agreement between Banc of America Business Finance Corporation
(formerly known as NationsBanc Business Finance Corporation) and Health &
Nutrition Systems International, Inc. dated November 4, 1998 amended as follows:
A.) The Purchase Price of accounts receivable, as stated in paragraph 1(a)
of the Factoring Agreement, shall be 97% of the face value thereof.
B.) The monthly minimum of $1,250 as outlined in paragraph 3(b) will be
increased to $5,500. If Health & Nutrition Systems International, Inc.
fees are less than $5,500, Health & Nutrition Systems International,
Inc. has the option to make up the difference the following month.
C.) The term of this Agreement shall be for an initial term of 12 months
("Term") from the date of execution and shall be automatically renewed
for successive renewal terms of Term periods each unless terminated at
the end of the initial term or any renewal term by the Client giving
Bank of America written notice of termination at least sixty (60) days
prior to the end of each period. If the Client obtains alternate
financing from any Bank of America or NationsBank affiliate, and wishes
to terminate this Agreement, the remaining term of this Agreement will
be waived. Bank of America shall be excused from performing any
obligation(s) to Client in the event Client commits an Event of
Default. Bank of America may terminate this Agreement by giving thirty
(30) days notice, except that in the event Client commits an Event of
Default, Bank of America may terminate immediately and without notice.
Notwithstanding termination, Bank of America shall retain all of its
rights, including all lien rights in the Receivable until all
obligations due Bank of America are fully discharged.
This Addendum is hereby made a part of the Factoring Agreement. All other
rights, terms and conditions of the original Factoring Agreement remain in
effect.
Banc of America Business Health & Nutrition Systems
Finance Corporation International, Inc.
By: /s/ By: /s/ Xxxxxx Xxxxxxxxx 3-28-00
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Title: Vice President Title: President
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VALIDITY GUARANTY
March 6, 0000
Xxxx xx Xxxxxxx Business Finance Corporation
0000 Xxxxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Gentlemen:
The undersigned is an officer and/or director and/or stockholder and/or
party interested in Health & Nutrition Systems International, Inc. (hereinafter
referred to as "Client"). In order to induce you to enter into factoring or
other financial arrangements with Client, the undersigned hereby warrants,
represents, covenants and guarantees to you as follows:
1. That all accounts assigned to you by Client will be genuine and in
all respects what they support to be; will represent bona fide sales and bona
fide and existing obligations of Client's customers, arising out of the sale and
completed delivery of merchandise manufactured and/or sold and/or the rendition
of services by Client in the ordinary course of its business in accordance with
and in full and complete performance of customer's orders therefor: and will not
be invalid, incomplete, incorrect, defective, forged, fictitious or imperfect.
2. That client will not knowingly assign any accounts to you to which
there are offsets, defenses or counterclaims of any nature whatsoever, and that
Client will do nothing to impede or interfere with your normal collection of, or
the payments of, the accounts assigned to you.
3. That Client is solvent.
4. That the accounts assigned to you and merchandise relating thereto
will be the sole and absolute property of Client, free and clear of all liens or
claims of any nature whatsoever, other than any lien to you.
5. That the correct maturities of said accounts will have been set
forth thereon and that proper entries will have been made on Client's books
disclosing the assignment thereof to you.
6. That Client will promptly report to you all merchandise disputes,
rejections, returns, or resales or merchandise and all credits allowed by Client
upon any and all of said accounts.
The undersigned guarantees the payment of all sums owing by Client as a result
of any fraud, deceit, or criminal act on the part of any officer, employee, or
agent of Client in its dealings with you, and hereby further undertakes to save
you free and harmless from any such damage or loss which you may sustain. As a
result of the above fraud, deceit or criminal act as set forth in this
paragraph.
Nothing herein contained shall be in any way impaired or affected by any change
in or amendment of any of the documents evidencing the factoring or other
financial arrangements and this Agreement shall be binding upon the undersigned,
his heirs, agents, representatives, successors or assigns. The liability of the
undersigned hereunder is direct and unconditional, and may be enforced without
requiring you first resort to any other right, remedy or security. It is not
necessary for you to give the undersigned notice of any changes in any of your
factoring or other financial arrangements with Client, to all of which the
undersigned now hereby consents.
Upon execution of this Validity Guaranty, all personal guaranties of Xxxxxx
Xxxxxxxxx previously executed by him shall be terminated and Xxxxxx Xxxxxxxxx
shall have no further liability pursuant to any previous Guaranty executed by
him in conjunction with the Factoring Agreement entered between Bank of America
Business Finance Corporation and Health & Nutrition Systems International, Inc.
Very truly yours,
/s/ Xxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx, President
Witness:
/s/ X. Xxxxx
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Accepted by:
/s/ Vice President
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