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September 23, 2005
CCH Europe GmbH
And
eNucleus, Inc
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EXPORT FINANCE FACILITY AGREEMENT
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TABLE OF CONTENTS
PART 1 - PREAMBLE.............................................................4
1. INTERPRETATION, CONSTRUCTION, METHOD OF PAYMENTS.....................4
PART 2 - SALES OF RECEIVABLES.................................................8
2. SALE AND ASSIGNMENT..................................................8
3. PURCHASE PRICE/FACILITY FEE.........................................10
4. RELATED SECURITY....................................................10
5. FURTHER ASSURANCE...................................................10
PART 3 - PAYMENTS............................................................11
6. INDEMNITY...........................................................11
7. PAYMENTS............................................................12
PART 4 - REPRESENTATIONS, WARRANTIES AND COVENANTS...........................12
8. REPRESENTATIONS AND WARRANTIES......................................12
9. COVENANTS...........................................................15
PART 5 - MISCELLANEOUS.......................................................18
10. TAXES AND INCREASED COSTS...........................................18
11. DEFAULT PROFIT RATE.................................................19
12. DEEMED COLLECTIONS..................................................19
13. ASSIGNMENT..........................................................20
14. DISCLOSURE OF INFORMATION...........................................20
15. REMEDIES............................................................21
16. PARTIAL INVALIDITY..................................................21
17. NO LIABILITY, NO PETITION AND LIMITATION ON PAYMENTS................21
18. NOTICES.............................................................22
PART 6 - LAW AND JURISDICTION................................................23
19. GOVERNING LAW.......................................................23
20. JURISDICTION........................................................23
THE SCHEDULES
SCHEDULE 1: CONDITIONS PRECEDENT.............................................25
SCHEDULE 2: RECEIVABLES......................................................26
SCHEDULE 3: FORM OF OFFER....................................................28
SCHEDULE 4: TERMINATION EVENTS...............................................29
SCHEDULE 5: GENERAL PRINCIPLES RELATING TO PRICING AND PROCEDURES............30
SCHEDULE 6: FORM OF GENERAL CUSTOMER NOTIFICATION AND GERMAN
COURTESY TRANSLATION.............................................33
SCHEDULE 7: INVOICE AND GERMAN COURTESY TRANSLATION..........................35
SCHEDULE 8: FORM OF DELIVERY NOTE AND GERMAN COURTESY TRANSLATION............37
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THIS AGREEMENT is made on
BETWEEN
CCH Europe GmbH a limited liability company incorporated under the Laws of the
Federal Republic of Germany, having its place of business at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ HRB 42078 (hereinafter referred to as
"CCH")
eNucleus, Inc (and all subsidiaries and related entities) a company incorporated
under the Laws of Delaware, having its place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇, (hereinafter referred to as
"Supplier").
WHEREAS
The Supplier, a well known and a reputable developer of software programs in the
USA, has various international customers, with a particular concentration in
India. Recently the supplier has purchased receivables from Applitech Solutions
Ltd, India, as part of a business acquisition from Applitech. Future business
shall be booked under a newly formed eNucleus subsidiary, eNucleus Solutions,
India.
CCH is extending Export Finance Facility Services to companies worldwide which
are trading with OECD country based companies;
CCH is interested in extending its Export Finance Facility Services to the
Supplier and has therefore proposed to the Supplier to assist in the financing
of its export business by purchasing the Supplier's receivables due from its
export customers (hereinafter referred to as "Customers");
CCH and the Supplier have agreed that, upon the terms and subject to the
conditions in this Agreement, the Supplier shall offer to sell and to assign
receivables to CCH and CCH shall accept such offers upon the terms hereof.
NOW IT IS HEREBY AGREED as follows:
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PART 1 Preamble
1. Interpretation, Construction, Method of Payments
1.1 In this Agreement and in the Recitals hereto, except so far as the context
otherwise requires:
Adverse Claim means any ownership interest, lien, security interest, charge
or encumbrance, or other right or claim in, over or on any person's assets
or properties in favor of any other person (but excluding the rights of the
Customer under any Contract in respect of the use or possession of goods
the subject of such Contract, and, for the avoidance of doubt, retention of
title [Eigentumsvorbehalt]) together with all accessories (Zubehor) and the
right of such person for redelivery of such goods in the enforcement of the
title retention rights of such person pursuant to the conditions of such
Contract, or otherwise against the possessor of the goods; and
Affiliate means, as to any person, any other person that, directly or
indirectly, is in control of (hat die einheitliche Leitung uber), is
controlled by (steht unter der einheitlichen Leitung von) or is under
common control with (gemeinsame einheitliche Leitung) such person or is a
director or officer (Organ) of such person;
Allowable Deductions are all rebates, discounts etc. granted by the
Supplier to the Customer under the Supply Agreement as defined below;
Atradius means Atradius Kreditversicherungs AG;
Authorized Representative means the appointed consultant of CCH.
Commercial Credit Insurance Agreement means the insurance agreement between
CCH and Atradius Kreditversicherungs AG;
Conditions Precedent means the conditions precedent (Voraussetzungen fur
die Annahme) to the valid delivery of an Offer set out in the First
Schedule;
Credit Limit means the limit notified to CCH by Atradius for each Customer
under the Commercial Credit Insurance Agreement;
Customer means a person obliged to make payments to a Supplier for the
provision of goods evidenced by a Contract for which an invoice has been
issued;
Defaulted Receivable means any Receivable:
(i) As to which any payment, or part thereof, remains unpaid by the
relevant Customer or the Insurer for more than 90 days from the
Receivable Due Date for such payment;
(ii) As to which the Customer thereof or any other person obligated thereon
or owning any Related Security in respect thereof is insolvent
(zahlungsunfahig), over-indebted (uberschuldet) or any general
stoppage of payment (Zahlungseinstellung) has occurred with respect to
such Customer or other person; or
(iii) Which would be written-off (Einzelwertberichtigung) in the relevant
Supplier's or CCH's books as uncollectible (uneinbringlich);
Deferred Purchase Price has the meaning given such term in the Fifth
Schedule hereto;
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Delcredere Liability means the failure of payment by the Customer due to
insolvency proceedings or the unjustified unwillingness of payment of the
Customer;
Delinquent Receivable means any Purchased Receivable (other than a
Defaulted Receivable) which is not paid by the relevant Customer for more
than 45 days but equal to or less than 90 days after its Receivable Due
Date relating thereto or which would be classified as delinquent
(uberfallig) by CCH.
Diluted Receivable means any Purchased Receivable then outstanding, which
is either
(a) Reduced or cancelled as a result of
(i) Any defective, rejected or returned merchandise or any failure by
the relevant Supplier to deliver any merchandise or otherwise to
perform under the underlying Contract or invoice,
(ii) Any change in the terms of or cancellation of a Contract or
invoice or any cash discount, any refunds, discount for quick
payment or other adjustment by the Supplier which reduces the
amount payable by the Customer on the related Purchased
Receivable (except any such change or cancellation resulting from
or relating to the financial inability to pay or insolvency of
the Customer of Such Purchased Receivable) or
(iii) Any set-off by a Customer in respect of any claim by such
Customer as to amounts owed by it on the related Purchased
Receivable (whether such claim arises out of the same or a
related transaction or an unrelated transaction) or
(b) Subject to any specific dispute, offset, counterclaim or defense
whatsoever (except the discharge in bankruptcy of the Customer
thereof) which has been asserted by the Customer in writing and which
remains unresolved for a period of at least 30 days, but in no event
shall a Receivable become a Diluted Receivable under this sub-section
(b) before the end of the month in which the related Receivable Due
Date shall occur; provided, however, that Diluted Receivables are
calculated assuming that all charge backs are resolved in the
Obligor's favor;
Facility Fee has the meaning given such term in the Fifth Schedule. It will
be set-off and deducted by CCH from the Purchase Price Advance and is
deemed to be paid in full, once the Purchase Price Advance has been paid to
the Supplier as outlined in said Schedule;
General Customer Notification means the notification letter as set out in
the Sixth Schedule;
Incipient Termination Event means an event that but for notice or lapse of
time or both would constitute a Termination Event;
Insurer means Atradius Kreditversicherungs AG or any successor under the
Commercial Credit Insurance Agreement or such other credit insurer as CCH
may nominate;
Invoice Date in relation to any Receivable means the date of issue of the
related invoice, which shall be specified in the Offer relating to such
Receivable;
Nominal Amount means, with respect to any Receivable, the principal amount
(Nominalbetrag) of such Receivable as reflected on the invoice of the
Supplier, without any deductions, rebates, discounts whatsoever;
Offer means a written offer in substantially the form set out in the Third
Schedule;
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Outstanding Nominal Amount means, with respect to any purchased Receivable,
at any time, the Nominal Amount of such purchased Receivable on the
relevant Purchase Date less the amount of collections received by CCH;
provided that such Outstanding Nominal Amount shall be restored in the
amount and to the extent of any collections so received if at any time such
collections must be returned for any reason;
Purchase means an acquisition of a Receivable and the Related Security
hereunder pursuant to an Offer;
Purchase Date means, with respect to any Purchase, the date upon which such
Purchase is completed by CCH's acceptance of the Supplier's Offer of the
respective Receivable;
Purchase Price Advance has the meaning given such term in the Fifth
Schedule hereto;
Receivable means any payment owed to the Supplier by a Customer in respect
of which an invoice has been issued by such Supplier for the sale of goods
and, unless otherwise specified herein, includes any Related Security;
Receivable Due Date in relation to any Receivable means the original date
on which such Receivable is due and payable specified in the relevant
Contract or invoice;
Records means, in respect of any Purchased Receivable, all Contracts,
invoices, receipts, correspondence, notes of dealings and other documents,
books, books of account, registers, records and other information
(especially, computerized data, tapes, discs, punch cards, data processing
software and related property and rights) maintained (and recreated in the
event of destruction of the originals thereof) with respect to such
Purchased Receivable and the related Customer to the extent relevant for
the collection of the Purchased Receivables;
Related Security means with respect to any Receivable:
(a) All Adverse Claims of the Supplier on any assets, property or revenues
from time to time, if any, purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such
Receivable or otherwise, together with all financing statements signed
by the Customer describing any collateral security for such
Receivables;
(b) All claims under guarantees, insurance and other agreements or
arrangements of whatever character from time to time supporting or
securing payment of such Receivable whether pursuant to the Contract
related to such Receivable or otherwise;
(c) All Records related to such Receivable;
(d) All possessory and other rights of the Supplier in respect of any
Receivables, the Related Security or the goods the subject of the
related Contract prior to a collection in respect thereof and all
rights, benefits and entitlement of the Supplier under such Contract;
Supply Agreement or Contract means each of the agreements between each
Supplier and a Customer, including each invoice pursuant to or under which
such Customer shall be obliged to pay for goods to the Supplier and which
is notified to CCH and approved by CCH for the purposes of this Agreement,
and which shall contain inter alia details of all - if any - Allowable
Deductions;
Termination Date means the day upon which a Termination Event occurs or, if
that is not a Business Day, the next following Business Day;
Termination Event means any of the events specified in the Fourth Schedule;
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1.2 Any reference in this Agreement to:
Administration, bankruptcy, dissolution, liquidation, receivership or
winding-up of any person shall be construed so as to include any equivalent
or analogous proceedings under the laws of the jurisdiction in which such
person is incorporated (or, if not a company or corporation, domiciled) or
any jurisdiction in which such person has its principal place of business;
Business Day means any day on which banking operations are possible in
Germany;
Default shall be construed as (Verzug) as defined in Section 286, paragraph
I of the German Civil Code and, for the avoidance of doubt, shall occur
upon the receipt by the relevant Customer of a notice of default (Mahnung),
if required under the German Civil Code;
Encumbrance shall be construed as a reference to a mortgage, charge,
pledge, lien or other encumbrance securing any obligation of any person or
any other type of preferential arrangement (especially, title transfer and
retention arrangements) having a similar effect;
(euro) and Euro denotes the single currency unit of certain members of the
European Union;
A person shall be construed as being "insolvent" if such person goes into
administration, bankruptcy, dissolution, receivership or winding-up or such
person is unable to pay its Debts as they fall due or such person's
liabilities exceed its assets;
Person shall be construed as a reference to any individual, firm, company,
joint stock company, corporation, limited liability company, government,
state or agency of a state or any associations, joint venture or
partnership (whether or not having separate legal personality) of two or
more of the foregoing;
Tax shall be construed so as to include any tax, levy, impost, duty, or
other charge of a similar nature (especially, any penalty or profit rate
payable in connection with any failure to pay or any delay in paying any of
the same) arising under applicable law;
Value added tax or VAT shall be construed so as to include any Umsatzsteuer
or any value added tax under any jurisdiction.
1.3 The headings in this Agreement shall not affect its interpretation.
1.4 Words denoting the singular number only shall include the plural number
also and vice versa and words denoting persons only shall include fines and
corporations and vice versa.
1.5 References in this Agreement to any statutory provision shall be deemed
also to refer to any statutory or other modification, re-enactment or
replacement thereof or any statutory instrument, order or regulation made
there under or under any such re-enactment and references herein to this
Agreement. Any other agreements or documents shall be construed as
references to this Agreement, such other agreements or documents as the
same may have been, or may from time to time be, amended, renovated,
supplemented, varied or superseded.
1.6 The Schedules shall form part of this Agreement.
1.7 Save where the contrary is indicated in this Agreement, any reference in
this Agreement to a time of day shall be construed as a reference to time
in GMT.
1.8 Any payments due hereunder shall be made by way of bank transfer in
immediately available funds in Euro, US$ or other currencies as agreed
between the parties with same day value. Whenever any payment or deposit to
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be made hereunder shall be due on a day other than a Business Day, such
payment or deposit shall be made on the next succeeding Business Day and
such extension of time shall be included in the computation of such payment
or deposit.
1.9 Unless otherwise provided for in this Agreement:
(a) Profit rate and discount rates referred to in this Agreement shall be
calculated annually on the basis of a 360 day year;
(b) Profit rate and discount amounts due under this Agreement shall be
calculated on the basis of the actual number of days elapsed
(including the first day, but excluding the last day from this
calculation);
(c) Whenever any payment or deposit to be made hereunder shall be due on a
day other than a Business Day, such payment or deposit shall be made
on the next succeeding Business Day and such extension of time shall
be included in the computation of such payment or deposit; and
(d) All payments to CCH are to be made in Euro, US$ or other currencies as
agreed between the parties.
1.10 Where a German term has been used, it alone, and not the English term to
which it relates, shall be authoritative for the interpretation of this
Agreement. Where English terms are accompanied by German definitions, such
definitions shall define how such terms are to be interpreted under German
law.
PART 2 - Sales of Receivables
2. Sale and Assignment
2.1 After fulfillment of the Conditions Precedent, but in any event before the
Termination Date, the Supplier will from time to time irrevocably offer to
sell (verkaufen) (the Offer) and to assign (abtreten) and to transfer
(ubertragen) to CCH , Receivables and their Related Security.
2.2 Each Offer pursuant to Clause 2.1 shall be in the form of a letter sent by
the Supplier to CCH in the format provided in Schedule 3 and will:
(a) specify:
(i) the Nominal Amount of the Receivable offered (which in any
case shall not be less than US$7.500,--);
(ii) the name and any account number of the Customer owing the
respective Receivable;
(iii) the Invoice date and Invoice number;
(iv) the due date for payment of the Receivable;
(v) all Related Security;
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(b) have as an attachment a duplicate copy of the Invoice sent to the
Customer for the Receivable duly confirmed by the Authorized
Consultant as a true duplicate copy and having the correct
payment instructions as detailed in Schedule 7 and containing the
correct name and address of the Customer, a sufficient and
correct description of the goods sold, particulars of the amount
payable by the Customer and of the terms of payment;
(c) have as an attachment the appropriate Delivery Note with details
corresponding to the Invoice attached as per Clause 2.2 (b)
herein duly accepted on behalf of the Customer in accordance with
Schedule 8 or, alternatively, where the duly accepted Delivery
Note is not available at the time of sending the offer confirm
that instructions have been given to the Customer for the
forwarding of the duly accepted Delivery Note directly to CCH.
2.3 Following receipt of an Offer in accordance with Clause 2.1 and upon the
satisfactory receipt of all the information and documents provided for in
Clause 2.2 including, inter alia, receipt of the duly accepted Delivery
Note either from the Supplier or from the Customer, then CCH will, within
five Business Days from the date all such information and documents have
been received to the satisfaction of CCH notify the Supplier of its
acceptance of such Offer and make payment to the Supplier of the Purchase
Price Advance. Payment by CCH of the Purchase Price Advance is deemed to be
a statement of acceptance by CCH and, in accordance with Sec. 151 of the
German Civil Code (BGB), the Supplier waives the receipt of the declaration
of acceptance (verzichtet auf den Zugang der Annahmeerklarung) of CCH.
2.4 CCH reserves the right to reject an Offer if:
(a) a Termination Event as outlined in Schedule 4 has occurred;
(b) the deliveries of the Supplier to the Customer are not covered by
Commercial Credit Insurance Agreement coverage and / or there is
no more room for the Customer/Supplier under the Credit Limit
(see Fifth Schedule, No. 6);
(c) the representations and warranties set out in Clause 8 turn out
not to be true and accurate in respect of each Receivable
included in such Offer.
(d) there should be, in the opinion of CCH, any material adverse
change in the prevailing economic or general circumstances,
including, but not limited to, any change in the legal or
financial situation of the Supplier or CCH or any of its
Customers;
(e) an event occurs, which might, in the opinion of CCH, cause a
material adverse effect on this Agreement or any business
relationship related hereto.
CCH will inform the Supplier within five Business Days, if CCH
contemplates to use its right of rejection.
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3. Purchase Price/Facility Fee
The purchase price to be paid for each Receivable purchased by CCH shall be
the aggregate of the Purchase Price Advance and the Deferred Purchase Price
less any other deductions in accordance with the payment terms as outlined
in the Fifth Schedule (hereinafter referred to as "Purchase Price"). CCH
will in consideration of the purchase of Receivables deduct its facility
fee, which is agreed on in the Fifth Schedule in accordance with the
procedure outlined in said Schedule.
4. Related Security
4.1 The assignment and transfer of Related Security in accordance to Clause 2.1
above refers in particular, but not limited, to:
(a) Those assets to which it holds title (Eigentum) under a retention
of title (Eigentumsvorbehalt) or title for security purposes
(Sicherungseigentum) arrangement as collateral for such
Receivables (and the Offer shall be regarded at the same time as
an offer to accept the obligations vis-a-vis the grantor of such
collateral for return transfer of title to the relevant Customer
if the Customer has fully satisfied the obligations secured by
such collateral);
(b) All its present and future expectancy rights
(Anwartschaftsrechte), if any, which it may hold or acquire after
the Purchase Date to goods the subject of any such Receivable;
(c) All its claims (Anspruche), present or future, to request
transfer of possession (Herausgabe) against the relevant
Customers and against third parties who may be in direct
possession (unmittelbarer Besitz) of the collateral covered by
the above retention of title or title for security purposes
arrangements. To the extent it still possesses such collateral,
it offers to hold such collateral as fiduciary (treuhanderisch)
for CCH free of charge and separate from other assets owned or
held by it (Besitzkonstitut). The same shall apply with respect
to collateral to which it may acquire possession in the future
(antizipiertes Besitzkonstitut);
(d) All future claims under the Supply Agreement with the Customer of
such Receivables and in particular, to the extent assignable, all
claims for the transfer or retransfer of possession with respect
to any goods the subject of any such Receivable.
4.2 The Supplier undertakes to assign and / or transfer to CCH any future
Related Security (other than Related Security assigned and / or transferred
to CCH at the time of the sale, assignment and transfer of the Receivable)
arising or obtained by the Supplier in relation to the Receivables as soon
as practicable upon such security arising or being obtained by the
Supplier.
5. Further Assurance
5.1 The Supplier agrees that from time to time, at its own expense, it will
promptly upon the request of CCH execute and deliver all instruments and
documents and take all action that CCH may reasonably request in order to
perfect or protect the assignment of the Receivables and / or the Related
Security or to enable CCH to exercise or enforce any of its rights under
this Agreement. Without limiting the foregoing, the Supplier will, upon the
request of CCH deliver to CCH copies of all Contracts relating to the
Receivables and all records relating to such Contracts and the Receivables,
whether in hard copy or in magnetic tape.
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5.2 The Supplier acknowledges that, without any exception, all Invoices to the
Customer are subject to the review of the Authorized Consultant. No Invoice
will be sent out to the Customer without the prior consent and approval of
the Authorized Consultant. All details of the Invoice must be verified by
the Authorized Consultant and be in accordance with the Offer, the order
confirmation and the mandatory payment instructions. The details of the
review will be amicably settled between the Authorized Consultant and the
Supplier.
5.3 If, for any reason, any Receivable or the Related Security is not
transferred, the Supplier upon receipt by it of the relevant Purchase Price
Advance shall be obliged to take all actions necessary for the transfer of
such Receivable or Related Security without any undue delay and at its own
expense. The Supplier shall indemnify CCH against any loss or expense
incurred by CCH as a result of the failure to transfer the same.
PART 3 - Payments
6. Indemnity
6.1 The Supplier hereby agrees to indemnify CCH and its respective officers,
directors or any assignee of CCH's rights hereunder (each, an Indemnified
Party), from and against any and all damages, losses, claims, liabilities,
costs and expenses, especially, reasonable attorneys' facility fee's, if
any and disbursements including any value added tax thereon (all of the
foregoing being collectively referred to as Indemnified Amounts) awarded
against or incurred by any Indemnified Party, arising out of or as a result
of (i) this agreement or (ii) the acquisition of an interest, either
directly or indirectly, by CCH in the Receivables and / or the Related
Security. In particular, but without limitation to the generality of the
foregoing, the Supplier shall indemnify the Indemnified Parties for
Indemnified Amounts relating to or resulting from:
(a) Reliance on any representation or warranty made by the Supplier (or
any authorized officers of the Supplier), under or in connection with
this Agreement, any information or report delivered by the Supplier
which shall have been false, incorrect or omitting of any material
fact at the time made or deemed made;
(b) Any dispute, claim, offset or defense (other than discharge in
insolvency (Insolvenz) of any Customer) of any Customer to the payment
of a Receivable, especially, a defense based on such Receivable or the
related Contract or the Related Security not being a legal, valid and
binding obligation of such any Customer enforceable against it in
accordance with its terms, or any other claim resulting from the sale
of goods related to such Receivable or the failure to perform any
obligations related to such goods, or the performance of or the
failure to perform any obligations related to any applicable laws,
rules or regulations in respect thereof-,
(c) Any products liability claims or personal injury or property damage
suit or other similar or related claims or action of whatever sort
arising out of or in connection with the goods which are the subject
of any Contract and / or Purchased Receivable;
(d) Any disclosure of information regarding any Customer by the Supplier
to CCH or the supply of any Contracts, Records and all other related
documents to CCH.
(e) Any failure of the Supplier to comply with its covenants contained in
this Agreement; and
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(f) Any revocation or purported revocation of an Offer by the Supplier or
any failure by such Supplier to complete the sale, purchase and
assignment of the Receivables specified in an Offer;
Excluding, however, (i) Indemnified Amounts resulting from gross negligence
or willful misconduct on the part of the relevant Indemnified Party or (ii)
ninety per cent of Indemnified Amounts arising out of the failure of a
Customer to pay amounts lawfully owed in respect of a Receivable
(Delkredere) solely by reason of the insolvency of a Customer.
6.2 For the avoidance of doubt, any indemnification under Clause 6.1 shall not
apply to any value added tax recovered from any relevant tax authority
relating to Defaulted Receivables.
6.3 CCH hereby agrees to notify each Supplier if it becomes aware of any
circumstances which could reasonably be expected to lead to a claim on the
part of CCH under Clause 6.1 and Clause 6.4, but failing to so notify shall
not effect the validity of such potential claim.
6.4 The Supplier is obliged under the provisions of this Agreement to indemnify
or reimburse CCH in respect of any losses or expenses resulting from a
breach of any obligations, covenants or representations and warranties by
the Supplier. The Supplier agrees that losses or expenses incurred by bank
expenses or facility fee's (other than losses incurred due to the gross
negligence or willful misconduct of any such person or any of its
Affiliates) shall be the losses or expenses of CCH for this purpose.
7. Payments
All payments made by the Supplier hereunder shall be made free and clear
of and without any deduction for or on account of any set-off or
counterclaim.
PART 4 - Representations, Warranties and Covenants
8. Representations and Warranties
8.1 The Supplier represents and warrants to CCH that:
(a) Corporate Existence and Power
It is a corporation duly organized and validly existing under the Laws
of Delaware and it has all corporate power and all governmental
licenses, authorizations, consents and approvals required to carry on
its business.
(b) Corporate and Governmental Authorization; Contravention
The execution, delivery and performance by it of this Agreement and
the transactions contemplated hereby are within its corporate powers,
have been duly authorized by all necessary corporate action, require
no action by or in respect of, or filing recording or enrolling with,
any governmental body, agency court official or other authority, and
do not contravene, or constitute a default under, any provision of
applicable law, public regulation or by-laws of it or of any
agreement, judgment, injunction, order (Urteil, gerichtlichen
Beschluss, gerichtliche Verfugung, Verwaltungsakt), or other
instrument binding upon it or result in the creation or imposition of
any Adverse Claim on its assets (other than in favor of CCH pursuant
to this Agreement).
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(c) Binding Effect
This Agreement constitutes the legal, valid and binding obligation of
the Supplier enforceable against it in accordance with its terms.
(d) No Proceedings
(i) The Supplier has not taken any corporate action nor have any
steps been taken or legal proceedings been started or threatened
against the Supplier for its winding-up, bankruptcy, insolvency,
dissolution or reorganization or for the appointment of a
receiver, insolvency liquidator, other administrator,
administrative receiver, trustee, liquidator, sequestrator or
similar officer of the Supplier or of any or all of its assets or
revenues;
(ii) No action or administrative proceeding of or before any court,
governmental agency or arbitrator has been started or threatened
(1) which could reasonably be expected to have a material adverse
effect on the Supplier's business or financial condition or on
the Supplier's ability to perform its obligations under this
Agreement or (2) as to which there is a material likelihood of an
adverse judgment, which should reasonably be expected to have a
material adverse effect on its business or financial condition or
on its ability to perform its obligations under this Agreement or
(3) which purports to affect the legality, validity or
enforceability of this Agreement; and
(iii) The Supplier is not in a general stoppage of payment situation
(Zahlungseinstellung).
(e) Accuracy of Information
All information heretofore furnished by the Supplier to CCH for the
purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all such information hereafter furnished
by the Supplier to CCH will be, true and accurate in every material
respect, on the date that such information is stated or certified and
does not or will not contain any untrue statement of material fact or
omit to state a material fact necessary in order to make the
statements contained therein, in the light of the circumstances under
which they were made, not misleading. In this regard, the financial
statements (Jahresabschlusse) of the Supplier as at December 31, 2004,
copies of which have been furnished to CCH fairly present the
financial condition (Vermogens- und Finanzlage) of the Supplier as at
such date and the results of the operations (Ertragslage) of the
Supplier for the period ended on such date, and since December 31,
2004 there has been no material adverse change in the business,
property or other condition of the Supplier.
(f) Place of Business
The chief place of business (Ort der Geschaftsleitung) and chief
executive office (Verwaltungssitz) of the Supplier are located in ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇, the
offices where the Supplier keeps all its Records, are located at the
address of the Supplier referred to herein or such other locations
notified to CCH.
(g) Good Title
Upon the payment of the Purchase Price Advance on each Purchase Date
hereunder CCH will acquire the ownership of each Receivable assigned
on such Purchase Date and the Related Security with respect thereto
free and clear of any Adverse Claim other than the Adverse Claims
created hereby.
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(h) Eligibility
Each Receivable that is subject of the related Offer was or is, as the
case may be, a Receivable at the time of the related Purchase Date in
the Nominal Amount specified in such Offer.
(i) Receivables at the Time of Purchase and Assignment
The Receivables comply after the relevant Purchase Date with all
representations and warranties given by the Supplier in relation to
such Receivables ; provided that the Supplier gives no warranty in
relation to the solvency (Zahlungsfahigkeit) of the Customers for the
time after the relevant Purchase Date.
(j) Good Faith
The transfers of Receivables by the Supplier to CCH pursuant to this
Agreement, and all other transactions between the Supplier and CCH,
have been and will be made for the Supplier's own commercial benefit,
in good faith and without intent to hinder, delay or defraud Customers
of the Supplier.
(k) Selection and Origination Procedure
The Receivables have been originated in accordance with the Supplier's
applicable Credit Policy.
If less than all of the Receivables of the Supplier have been
transferred to CCH pursuant to this Agreement, no selection procedure
was utilized by the Supplier in selecting the Receivables to be
transferred to hereunder which is adverse to the interests of CCH or
would reasonably be expected to result in the Receivables containing a
higher percentage of Defaulted Receivables than the percentage of
Defaulted Receivables in the Receivables retained by the Supplier.
(l) Retention of Title-Clause
Supplier agrees on and warrants that the Supply Agreement shall
contain an ordinary Retention of Title-Clause applicable and valid
under German Law.
8.2 The representations and warranties referred to in Clause 8.1 shall be given
by the Supplier to CCH (i) on the date hereof, (ii) on each date on which
an Offer is made by the Supplier pursuant to Clause 2.1.
8.3 CCH represents and warrants to the Suppliers that:
(a) Corporate Existence
It is a limited liability company under the Laws of the Federal
Republic of Germany, duly incorporated and registered in
Dusseldorf/Germany.
(b) Corporate Power
The execution, delivery, and performance by it of this Agreement and
the transactions contemplated hereby are within its corporate powers.
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(c) No Proceedings
(i) It is not unable to pay its debts or is deemed to be in a
stoppage of payment, and no application for the initiation of
bankruptcy or any other insolvency proceeding has been made with
respect of it; and
(ii) it is not subject to any pending court proceedings which may have
a material adverse effect to its financial situation.
9. Covenants
9.1 At all times from the date hereof until the later of (i) the first day
following the Termination Date or (ii) the date on which all Receivables
have been either written off or paid in full and no sums are due and
payable by the Supplier to CCH hereunder, unless shall otherwise consent in
writing:
(a) Financial Reporting
The Supplier will maintain a system of accounting established and
administered and furnish CCH with:
(i) Annual and Quarterly Reporting
Within four months after the close of each of its fiscal years,
its audited annual financial statements (Jahresabschluss)
certified by independent international certified public
accountants; and
Within 60 days after the end of the first three quarters of each
fiscal year of the Supplier, with its unaudited quarterly balance
sheet and related profit and loss statements certified by the
managing director (Geschaftsfuhrer) of the Supplier.
(ii) Notice of Termination Event or Incipient Termination Event
As soon as possible and in any event within five days after the
occurrence of a Termination Event or an Incipient Termination
Event, a statement of an authorized officer of the Supplier
setting forth details of such Termination Event or an Incipient
Termination Event and the action which the Supplier proposes to
take with respect thereto;
(iii) Change in Credit Policy
Any change in the character of the Supplier's business or change
in or amendment to the credit policy, which change would, in
either case, have consequences for the collect ability of any
Receivable or for the ability of the Supplier to perform its
obligations under this Agreement for approval by CCH prior to
implementation. Such approval is not to be withheld unreasonably
and shall be deemed to have been given unless CCH expressly
notifies the Suppliers otherwise within ten Business Days from
the date on which the Supplier has notified CCH of its intention
to change such credit policy. If such approval is not given by
CCH, no such change in or amendment of the credit policy will be
implemented;
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(iv) Related Security
Such information as CCH may from time to time reasonably request
in respect of the Related Security including, for the avoidance
of doubt, information reasonably required by CCH for any
realization of such Related Security;
(v) Notice of Proceedings
As soon as possible and in any event within five Business Days
after (a) the institution of any proceeding against the Supplier
or to which the Supplier become a party where damages are being
sought or (b) the entry of a judgment or decree against the
Supplier;
(vi) Other Reports
Promptly after the sending or filing thereof, copies of all
reports that the Supplier sends to any of its security holders,
and copies of all reports, registration statements and similar
documents that the Supplier or any subsidiary files with the
government or any governmental agency or any securities exchange
excluding the Supplier's tax returns and export statistics; and
(vii) Other Information
Such other information (including non-financial information) as
CCH may from time to time reasonably request.
(b) Conduct of Business
The Supplier shall do all things necessary to remain duly organized,
validly existing under the Laws of Delaware and maintain all requisite
authority to conduct its business in Illinois.
(c) Compliance with Laws
The Supplier shall comply in all respects which could be regarded as
material in the context of the transactions contemplated by this
Agreement, with all laws, rules, regulations, orders (Verfugungen),
writs (Beschlusse), judgments (Urteile), injunctions, decrees or
awards to which it may be subject.
(d) Furnishing of Information and Inspection of Records
The Supplier shall have systems in place in relation to the relevant
Receivables that are capable of providing the information to which CCH
is reasonably and properly entitled pursuant to this Agreement, shall
use all reasonable endeavors to maintain such systems in working order
and shall permit CCH , any firm of independent accountants (who are
subject to a professional duty of confidentiality) and / or any other
representatives of CCH (subject to a professional duty of
confidentiality in relation to the affairs of the Supplier) to enter
under the direct supervision of the Supplier during customary business
hours upon the premises of the Supplier to:
(i) Conduct periodic audits of the Receivables, the Related Security
and any Records;
(ii) Inspect and satisfy itself or themselves that appropriate
procedures and systems are in place, maintained in working order
and are capable of providing the information to which it or they
are reasonably and properly entitled pursuant to this Agreement
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and which the Supplier has failed to supply within five Business
Days of receiving written notice of such failure or to verify any
such information which has been provided and which CCH has reason
to believe is inaccurate;
(iii) Examine and make copies of and extracts from all Records as are
in the reasonable opinion of CCH relevant to the collection of
the Receivables but, for the avoidance of doubt, CCH shall have
no right to examine and make copies of and extracts from Records
(a) in respect of which the Supplier has a duty of professional
confidentiality under a Contract or (b) which contain
confidential technical information of the Supplier, and
(iv) Discuss matters relating to Receivables and the Related Security
or the Supplier's performance hereunder or under the contracts
with any of the officers or employees of the Supplier having
knowledge of such matters.
Provided that no Records, files or other information other than that
to which CCH is entitled so to examine, copy or make abstracts from
shall be removed from Supplier's premises and such Records, files or
other information shall remain confidential and shall not be used or
disclosed or divulged to any person (except to the extent and in the
circumstances permitted by this Agreement and in accordance with
applicable law) without the prior consent of the Supplier, such
consent not to be unreasonably withheld.
(e) Performance and Compliance with Receivables and Contracts
The Supplier shall, at its expense, in a timely manner fully perform
and comply with all provisions, covenants and other promises required
to be observed by it under this Agreement and the Supplier shall as
soon as is reasonable notify CCH if third parties make claims
regarding the Receivables or the Related Security or if the
Receivables or Related Security are impacted or challenged by other
events such as a stoppage of payment by a Customer.
(f) Value Added Tax
The Supplier shall procure to be made all relevant value added tax or
other applicable tax payments punctually in respect of supplies of
goods pursuant to a Contract or which otherwise relate to Receivables,
and pay all value added tax (if any) payable in respect of any value
added tax supply made, or input value added tax suffered by CCH with
respect to supplies of goods, by the Supplier pursuant to a Contract
or which otherwise relates to Receivables.
(g) Withholding Tax
All amounts paid to CCH shall be made free of all withholding taxes or
other taxes.
(h) Offices
The Supplier will keep its chief place of business (Ort der
Geschaftsleitung) and chief executive office (Verwaltungssitz) within
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇, and the
office where it keeps its records concerning the Purchased Receivables
at the address of the Supplier set forth under its name on the
signature page to this Agreement.
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(i) Change in Credit Limit
CCH shall notify the Supplier of any change in the Credit Limit of the
Supplier's respective Customers as from time to time notified to CCH
by Atradius.
(j) Payment of collections
The Supplier shall procure that any monies received by it with regard
to a Receivable will be paid as collections on such Receivable into
CCH's account.
(k) Right of Set-off
The Supplier agrees that CCH shall be entitled to set-off against any
sums due or becoming due from CCH to the Supplier any liability of the
Supplier to CCH hereunder.
(l) Customer Addresses
The Suppliers shall provide to CCH every quarter of every year an
update of all new and changed Customer addresses.
9.2 During the term of this Agreement, unless CCH shall otherwise consent in
writing:
(a) Sales, Liens, etc
Except as otherwise provided herein, the Supplier shall not sell,
assign (by operation of law or otherwise) or otherwise dispose of, or
create or suffer to exist any Adverse Claim upon (especially, the
filing of any financing statement) or with respect to any goods which
are subject of any Receivable or Related Security, or upon or with
respect to any account to which any collections of any Receivables are
sent, or assign any right to receive income in respect thereof or
attempt, purport or agree to do any of the foregoing.
(b) Extension or Amendment of Receivables
Except as otherwise permitted hereunder the Supplier shall not extend,
amend or otherwise modify the terms of any Receivable, or amend,
modify or waive any term or condition of any Contract related thereto,
with the exception of receivables that are not being purchased by CCH.
PART 5 - Miscellaneous
10. Taxes and Increased Costs
10.1 The Supplier shall pay (i) all stamp duty, registration and other similar
taxes and (ii) all levies, duties, charges, and taxes levied on CCH by a
tax or other authority or any public entity to which this Agreement or any
judgment given in connection herewith or therewith may at any time become
subject subsequent to the date of this Agreement and, from time to time on
demand of CCH, indemnify CCH against any liabilities, costs, claims and
expenses resulting from any failure to pay or any delay in paying any such
tax, except those penalties and Profit rate charges that are due to the
negligence of CCH.
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10.2 The Supplier shall from time to time on demand of CCH reimburse CCH for an
amount of value added tax payable on such Receivable if such Receivable has
become uncollectible.
10.3 Subject to Clause 10.6, any demand made by CCH under Clause 10.1 or 10.2
above shall be accompanied by a statement, duly certified by an officer of
CCH, giving reasonable particulars of the claim for reimbursement which
shall be relied upon and agreed as authoritative by the Supplier.
10.4 If circumstances are such that CCH intends to claim indemnification from
the Supplier under Clause 10.1 or 10.2 above, CCH shall, without in any way
limiting, reducing or otherwise qualifying the rights of CCH or the
obligations of the Supplier under any of the foregoing Clauses, after
consultation with the Supplier and to the extent that it can do so lawfully
and without prejudice to its own position, business, operations or
financial conditions consider what steps it might reasonably take with a
view to mitigating the effect of such circumstances.
10.5 CCH hereby agrees to notify the Supplier if it becomes aware of any
circumstances, which could reasonably be expected to lead to a claim on the
part of CCH under this Clause 10.
10.6 No variation of this Agreement (including this Clause 10.6) shall be
effective unless it is confirmed in writing and signed by (or by some
person duly authorized by) each of the parties.
11. Default Profit Rate
11.1 If any sum due and payable by any party hereunder is not paid on the due
date therefore in accordance with the provisions of Clause 6 or if any sum
due and payable by the Supplier under any judgment of any court in
connection herewith is not paid on the date of such judgment, the period
beginning on such due date or, as the case may be, the date of such
judgment and ending on the date upon which the obligation of the Supplier
to pay such sum (the balance thereof for the time being unpaid being herein
referred to as an "unpaid sum") is discharged shall be divided into
successive periods, each of which (other than the first) shall start on the
last day of the preceding such period and the duration of each of which
shall be selected by CCH.CCH
11.2 During each such period relating thereto as is mentioned in Clause 11.1 an
unpaid sum (other than profit rate) shall, to the extent permitted by law
and provided that the Supplier is either in default within the meaning of
Section 286 of the German Civil Code (Verzug) or to the extent permitted by
or owed under Section 353 of the German Commercial Code, bear profit rate
(or, in the case of unpaid profit rate, the Supplier shall pay lump sum
damages).
11.3 Any profit rate which shall have accrued under Clause 11.2 in respect of an
unpaid sum shall be due and payable and shall be paid by the relevant party
at the end of the period by reference to which it is calculated or on such
other dates as CCH may specify by written notice to such Supplier.
12. Deemed Collections
12.1 If on any day (i) any representation or warranty in Clause 8 in respect of
a Receivable proves at any time to have been incorrect when made or (ii)
any Receivable proves not to have been an Receivable at the Purchase Date,
the Supplier shall be deemed to have received on such day a collection (a
Deemed Collection) in an amount equal to the Outstanding Nominal Amount of
such Receivable; provided that this Clause 12.1 shall not apply to any
Receivable in respect of which a Customer fails to pay amounts lawfully
owed (Delkredere) solely by reason of the Customer's Insolvency.
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12.2 If the Outstanding Nominal Amount of any Receivable is reduced by reason of
(i) any set-off or counterclaim, (ii) any discount or other trade credit or
(iii) if any Receivable becomes a Diluted Receivable for any other reason,
then the Supplier shall be treated as having received the amount of such
reduction on the date of such reduction for such Receivable in addition to
any other amounts which may be received or receivable on such Receivable
and such reduction shall for the purposes of this Agreement be treated as a
Deemed Collection in an amount equal to the amount of such reduction.
12.3 If any Receivable which is purported to be assigned to CCH hereunder shall
have been collected in whole or in part (including a Deemed Collection
pursuant to Clause 12.2) prior to the Purchase Date, then amounts so
collected shall be treated for the purposes of this Agreement as a Deemed
Collection thereof received on the date of the Purchase Date.
12.4 The Supplier shall hold any Deemed Collections for and to the order of CCH
and shall pay such Deemed Collections to CCH's account without any undue
delay.
12.5 Upon payment of the Deemed Collection by the Supplier to CCH, the relevant
Receivable and the Related Security shall be re-assigned to the Supplier
(without recourse or warranty on the part of CCH and at the sole cost of
the Supplier and without any further purchase price payable by the
Supplier).
13. Assignment
13.1 Subject to Clauses 13.2 and 13.3, no party shall be entitled to assign or
transfer all or any of its rights, benefits and obligations hereunder
except with the prior written consent of the other parties, such consent
not to be unreasonably withheld.
13.2 In connection with any sale or assignment by CCH of all or a portion of the
Purchased Receivables, the buyer or assignee, as the case may be, shall, to
the extent of its purchase or assignment, have all rights of CCH under this
Agreement (as if such buyer or assignee, as the case may be, were CCH
hereunder) except to the extent specifically provided in the agreement
between CCH and such buyer or assignee, as the case may be.
13.3 The parties hereto hereby acknowledge that CCH may assign all or any
portion of its rights under this Agreement and that such assignees may
(except as otherwise agreed to by such assignees) further assign their
rights under this Agreement, and the Supplier hereby consent to any such
assignments.
14. Disclosure of Information
None of the parties hereto shall, during the continuance of this Agreement
or after its termination, disclose to any person, firm, or company
whatsoever (except with the authority of the other parties hereto) any
information, which that party has acquired under or in connection with this
Agreement other than:
(i) In connection with any proceedings arising out of or in connection
with any transaction document or the preservation or maintenance of
its rights there under;
(ii) If required to do so by an order of any court of competent
jurisdiction whether in pursuance of any procedure for discovering
documents or otherwise;
(iii) Pursuant to any law or regulation or requirement of any governmental
agency in accordance with which that party is required or accustomed
to act;
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(iv) To any governmental, banking or taxation authority of competent
jurisdiction;
(v) To its shareholders; or
(vi) To its auditors or legal or other professional advisers which adhere
to a duty of confidentiality;
Provided that the above restriction shall not apply to:
(a) Employees or officers or Authorized Consultants of any of the parties
referred to in (i) above any part of whose functions are or may be in
any way related to this Agreement;
(b) Information already known to a recipient otherwise than in breach of
this Clause;
(c) Information also received from another source on terms not requiring
it to be kept confidential; and
(d) Information which is or becomes publicly available otherwise than in
breach of this Clause.
15. Remedies
Unless otherwise provided for in this Agreement, the rights and remedies
herein provided are cumulative and not exclusive of any rights or remedies
provided by law.
16. Partial Invalidity
Without prejudice to any other provision hereof, if one or more provisions
hereof is or becomes invalid, illegal or unenforceable in any respect in
any jurisdiction or with respect to any party such invalidity, illegality
or unenforceability in such jurisdiction or with respect to such party or
parties shall not, to the fullest extent permitted by applicable law,
render invalid, illegal or unenforceable such provision or provisions in
any other jurisdiction or with respect to any other party or parties
hereto. Such invalid, illegal or unenforceable provision shall be replaced
by the parties with a provision which comes as close as reasonably possible
to the commercial intentions of the invalid, illegal or unenforceable
provision.
17. No Liability, No Petition and Limitation on Payments
17.1 No recourse under any obligation, covenant, or agreement of CCH contained
in this Agreement shall be made against any shareholder, officer or
director of CCH as such, by the enforcement of any obligation or by any
proceeding, by virtue of any statute or otherwise; it being expressly
agreed and understood that this Agreement is a corporate obligation of CCH
and no liability shall attach to or be incurred by the shareholders,
officers, Authorized Consultants or directors of CCH as such, or any of
them, under or by reason of any of the obligations, covenants or agreements
of such CCH contained in this Agreement, or implied there from, and that
any and all personal liability for breaches by CCH of any of such
obligations, covenants or agreements, either at law or by statute or
constitution, of every such shareholder, officer, Authorized Consultant or
director is hereby expressly waived by the Supplier as a condition of and
consideration for the execution of this Agreement.
17.2 The Supplier hereby agrees that it shall not, until the expiry of one year
and one day after the payment of all sums outstanding and owing under any
transaction document of CCH in respect of the Receivables:
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(a) Take any corporate action or other steps or legal proceedings for the
winding up, dissolution or re-organisation or for the appointment of a
receiver, administrator, administrative receiver, trustee, liquidator,
sequestrator or similar officer of CCH or of any or all CCH's revenues
and assets; or
(b) Have any right to take any steps for the purpose of obtaining payment
of any amounts payable to it under this Agreement by CCH other than
out of collections and in accordance with the priority of payments
pursuant to this Agreement and shall not until such time take any
steps to recover any claims of whatever nature owing to it by CCH
other than out of collections and in accordance with the priority of
payments pursuant to this Agreement.
17.3 Notwithstanding any provision contained in this Agreement to the contrary,
CCH shall not be liable for any claim of whatsoever nature from the
Supplier resulting from the rejection of any Offer pursuant to Clause 2.4
of this Agreement.
17.4 The provisions of this Clause 17 shall survive the termination of this
Agreement.
18. Notices
18.1 Each communication to be made hereunder shall, (except expressly permitted
otherwise) be made in writing, but, unless otherwise stated, may be made by
facsimile or registered letter.
18.2 Any communication or document to be made or delivered by any one person to
another pursuant to this Agreement shall (unless that other person has by
fifteen days' written notice to the other specified another address) be
made or delivered to that other person at the address identified with its
signature below and shall be deemed (widerlegbare Vermutung) to have been
made or delivered (in the case of any communication made by facsimile or
telex) when dispatched or (in the case of any communication made by
registered letter) when left at that address or (as the case may be) three
days after being deposited in the post postage prepaid in an envelope
addressed to it at that address. Any communication sent by facsimile shall
be promptly confirmed by letter by the non-delivery or non-receipt of any
such registered letter shall not affect the validity of the original
facsimile communication.
18.3 Each communication and document made or delivered hereunder shall be in
English or English and German language.
18.4 Any notice given to CCH hereunder shall be copied to such other person as
CCH may instruct from time to time.
18.5 CCH may act in accordance with any communication which may from time to
time be, or purport to be, given on behalf of any one or more of the
authorized officers of each of the Supplier without enquiry by CCH (as the
case may be) as to the authority or identity of the person making or
purporting to make such communication and regardless of the circumstances
prevailing at the time of such communication. CCH may treat any such
communication as fully authorized by and binding upon the Supplier and may
(but need not) take such steps in connection with or in reliance upon such
communication as CCH may in good faith consider appropriate.
18.6 This Agreement may be executed in one or more counterparts.
18.7 Supplier shall notify CCH of any changes of the respective Supply Agreement
without any undue delay.
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PART 6 - Law and Jurisdiction
19. Governing Law
This Agreement shall be governed by and construed in accordance with the
material law of the Federal Republic of Germany without any recourse to the
German International Private Law.
20. Jurisdiction
20.1 Each of the parties hereto irrevocably agrees that the courts of
Dusseldorf/Germany shall have non-exclusive jurisdiction to hear and
determine any suit, action or proceeding, and to settle any disputes, which
may arise out of or in connection with this Agreement and, for such
purposes, irrevocably submits to the non-exclusive jurisdiction of such
courts.
20.2 Each of the parties hereto irrevocably waives any objection which it might
now or hereafter have to the courts referred to in Clause 20.1 being
nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this Agreement and agrees not to claim that any such court
is not a convenient or appropriate forum.
20.3 The provisions of this Clause 20 shall survive the termination of this
Agreement.
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CCH Europe GmbH
By:
eNucleus, Inc.
By:
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SCHEDULE 1:
Conditions Precedent
1. Copies of all necessary corporate documents, including but not limited to
board resolutions, approving this Agreement and the other documents to be
delivered by it and the transactions contemplated hereunder and certified
extracts from the commercial register of the Supplier or similar documents.
2. A certificate of the Supplier issued either by its directors and / or duly
authorized employee certifying the names and authorized signatures of the
officers authorized on behalf of the Supplier to execute this Agreement and
any other documents to be delivered by it hereunder, on which certificate
CCH may conclusively rely.
3. Receipt of a copy of the Supplier's latest audited annual financial
statement as required under Clause 9.1.a. (i) and a letter from an external
auditor confirming that Receivables ("Debitorenbuchhaltung") are being
properly accounted for in the accounts of the Supplier.
4. No Termination Event or Incipient Termination Event has occurred and is
continuing.
5. No breach of any covenant contained in Clause 9 of the Export Finance
Facility Agreement has occured.
6. CCH has entered into the Commercial Credit Insurance Agreement, which
enables it to insure the purchase of Receivables.
7. In the case of each Customer, CCH shall have received to its satisfaction a
countersigned acknowledgement of the General Customer Notification as set
out in Schedule 6.
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SCHEDULE 2:
Receivables
"Receivables" means Receivables which at their date of Offer and the proposed
Purchase Date:
1. Were originated in the relevant Supplier's ordinary course of business in
accordance with all applicable requirements of the German Laws and had an
original payment term of no more than 120 days according to the related
Contract or by its terms;
2. Arise under a Contract which together with such Receivables is in full
force and effect and constitute legally valid and enforceable obligations
of the related Customers enforceable against such Customers in accordance
with the terms of such Receivables and which are not subject to a claim of
right of rescission, set-off, counterclaim or other defense and are free
and clear of any encumbrance of whatsoever nature;
4. Can be easily identified for ownership and Related Security purposes on any
day;
5. Arise from the sale of goods and are such that the delivery of the goods
giving rise to the Receivables has been completed and such goods have been
accepted (angenommen und genehmigt) in accordance with Sections 377, 378 of
the German Commercial Code (HGB) by the relevant Customer;
6. Are not Defaulted Receivables or Delinquent Receivables and there has been
no breach of any obligation by any party to any Contract;
7. Are obligations, which can be transferred by way of sale and assignment;
8. Are owned solely by the Supplier and are free and clear of any Adverse
Claims in favor of any person other than the Supplier, and are evidenced by
an invoice or similar a evidence of the debt which will be sufficient to
prove a claim therefore against the Customer in relevant courts;
9. Are not subject to withholding taxes;
10. Have been created in compliance with all applicable laws, rules and
regulations and all required consents, approvals and authorizations have
been obtained in respect thereof and neither the Supplier nor the Customers
is in violation of any such law, rule or regulation;
11. Are Receivables, which are governed by German law;
12. Are Receivables the Nominal Amount of which remains a debt, which has not
been discharged (erfullt);
13. Are Receivables which when aggregated with the Outstanding Nominal Amount
of other Receivables purchased from the Customer do not exceed the Credit
Limit set by Atradius for such Customer;
14. Are Receivables due from a Customer approved by Atradius under the
Commercial Credit Insurance Agreement;
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15. Are Receivables due from a Customer who is not insolvent (zahlungsunfahig)
or over-indebted (uberschuldet);
16. Are Receivables due from a Customer who is not an individual person
(naturliche Person) and not a consumer (Verbraucher);
17. Which are invoiced no later than 15 days after delivery of the goods in
respect thereof;
18. Arise under a Contract, which does not contain a confidentiality that
purports to restrict the ability of CCH to exercise its rights under this
Agreement, in particular CCH's right to review the Contract;
19. Are originated pursuant to a standard form Supply Agreement or Contract,
and includes all mandatory declarations and statements, both to be
accomplished by the Invoice, which are set forth in Schedule Seven.
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SCHEDULE 3:
Form of Offer
(On the letterhead of supplier)
To: CCH
From: (Supplier name)
Dated:
Dear Sirs,
We refer to the Export Finance Facility Agreement dated and in accordance with
the provisions therein offer and assign to you the following Receivable:
Nominal Amount...............................
Name and account number of Customer..........
The Invoice Date.............................
The Due Date for payment.....................
Details of Related Security..................
Attached hereto, please find the true duplicate copy of the Invoice in respect
of the offered Receivable approved as a true duplicate copy in accordance with
Schedule 7 of the Export Finance Facility Agreement.
Also attached hereto, please find the Delivery Note duly accepted on behalf of
the Customer in accordance with Schedule 8 of the Export Finance Facility
Agreement. ( In the event we are unable to attach the duly completed Delivery
Note we confirm that we have instructed the Customer to forward this directly to
you. )
Kindly note that the Purchase Price Advance less the Facility Fee of 2 % should
be paid to our account at (account number)
We hereby give and confirm the correctness of the representations and warranties
set out in Clause 8 of the Export Finance Facility Agreement.
This Offer constitutes an irrevocable offer by us binding upon us to sell and to
assign to you the Receivable and Related Security referred to in this offer.
Yours faithfully
For and on behalf of the Supplier
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SCHEDULE 4:
Termination Events
Any of the following events shall be deemed to be a Termination Event:
i. Breach or failure by the Supplier to (a) make payments when due under this
Agreement and such breach or failure remains un-remedied for three
Business Days after it is due or (b) perform or observe any of its
obligations in respect of any term, covenant or agreement relating to this
Agreement and such breach or failure remains un-remedied for five Business
Days;
ii. Any representation, warranty, certification or statement made by the
Supplier in this Agreement or any transaction document or any information
or report provided is or proves to be materially false or incorrect when
made or deemed made or delivered;
iii. The Supplier is insolvent (zahlungsunfahig), over-indebted (uberschuldet)
or liquidated or any general stoppage of payments (Zahlungseinstellung)
occurs;
iv. A material adverse effect occurs in the business or financial condition of
the Supplier in respect of its ability to perform its obligations under
this Agreement or affects collectability of Receivables as decided by CCH
in its sole discretion;
v. Insurance coverage pursuant to the Commercial Credit Insurance Agreement
is terminated.
vi. The performance of any of the transactions becomes illegal or legally
impossible or this Agreement is repudiated by the Supplier;
vii. The sale by the Supplier of substantially all of its assets, or the taking
of any corporate action by the Supplier to authorize such action;
viii. If the Related Security and the collections with respect to any Purchase
of Receivables cease to constitute valid and perfected ownership of such
Receivables and such situation is not remedied within 3 days following the
notification thereof by CCH.
ix. If the Supplier agrees to any change in the payment terms and conditions
with a Customer of existing Receivables without the prior written consent
of CCH's rights in Clause 2.4 of the Agreement remain unaffected.
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SCHEDULE 5:
General Principles relating to Pricing and Procedures
1. Until further notice, the Facility Fee, which is invoiced to the Supplier
by CCH, will be 2 % of the nominal amount of each Invoice ("Facility Fee").
The minimum Facility fee shall be $10,000.00 per quarter. The Facility Fee
is based on the following structure data:
Annual sales: $ 6,000,000.00
Number of invoices: 20
Average invoice value: $300,000.00
Payment conditions: up to 120 days
Number of Customers: 15
Type of Goods Exported: software & related services
Export Destination Countries: India & Singapore
2. Should it become apparent during the term of the Export Finance Facility
Agreement that the actual structure data deviates considerably from the
details above, CCH reserves the right to adjust the Facility Fee
accordingly.
3. The Supplier shall be invoiced profit rate of 7.5 basis points per diem
calculated on the amount of the Purchase Price Advance from the date of
payment of the Purchase Price Advance to the Supplier by CCH to the date
CCH receives reimbursement of the Purchase Price Advance in full. Should
the funding rate granted to CCH increase then CCH reserves the right to
increase the profit rate charged to the Supplier accordingly and will
notify the Supplier of any such increase in writing.
4. CCH will purchase each Receivable in two installments as follows:
The first installment shall be 80% of the Nominal Amount of the Receivable
(such first installment is herein and elsewhere referred to as the
"Purchase Price Advance"). It is agreed that the Facility Fee payable in
accordance with Clause 1 above shall be deducted from the Purchase Price
Advance by CCH before payment is made to the Supplier.
Following settlement in full by the Customer of the Receivable net of any
Allowable Deductions in accordance with the provisions of the Supply
Agreement, CCH will use the funds received to firstly reimburse the
Purchase Price Advance, then to settle profit rate due by the Supplier in
accordance with Clause 3 above, then to cover any reasonable cost incurred
by CCH in the execution of the provisions of the Export Finance Facility
Agreement. The resulting balance of funds received from the Customer will
be paid to the Supplier as the second installment (herein and elsewhere
referred to as the "Deferred Purchase Price"). Should the Customer not
withhold any Allowable Deductions or should the Supply Agreement provide
for Allowable Deductions to be made retrospectively from later invoices
then CCH will retain such amounts from the Deferred Purchase Price as it
deems necessary to meet such later Allowable Deductions and will hold such
retentions as a security bond to be released to the Supplier only upon
settlement of all such deductions following completion of all shipments
under the Supply Agreement and a statement from the Customer that all
Allowable Deductions under the completed Supply Agreement have been claimed
in full by the Customer.
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5. CCH has in place a Commercial Credit Insurance Agreement with Atradius. CCH
has at the request of the Supplier applied for Credit Limits under the
Commercial Credit Insurance Agreement to cover the debts of each Customer.
The limit application charges levied by Atradius in this regard are for the
account of the Supplier. The Supplier has been notified by CCH of the
maximum Credit Limit of each Customer. If necessary, CCH will allocate the
available Credit Limit between various Suppliers and inform the Supplier of
its reduced credit value for the respective Customer. At the time of
presentation of invoices, CCH will notify the Supplier of the actual
available Credit Limit for the Customer.
6. In any regard, the financing shall be conducted within the Credit Limit
under the Commercial Credit Insurance Agreement. Irrespective of this, CCH
shall be entitled at any time to revoke these limits, if CCH has negative
information regarding the related Customers (negative payment experience,
etc.).
7. Payment of compensation by CCH in the event of Delcredere Liability is
limited both to the date of compensation and to the amount of compensation
confirmed and paid by Atradius or its collection company Nam Inter S.A..
Should the Customer fail to pay the debts due to a dispute with the
Supplier or due to an invalid invoice, CCH has the right to take recourse
to the Supplier and reserves a set-off right with respect to other
invoices.
8. The Supplier may request CCH at any time to release Receivables, and thus
associated security profit rates, assigned to CCH Following settlement of
any amounts due in the present or the future, CCH shall transfer the
receivables assigned to him back to the Supplier by means of a written
notice of assignment. CCH shall thereby waive receipt of the declaration of
acceptance pursuant to Sec. 151 of the German Civil Code (BGB).
9. Payments by Customers, with the effect of exemption from debt, may only be
made into the following account. CCH Europe GmbH US$ account .Deutsche Bank
▇▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇▇-▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ .SWIFT: DEUTDEDD Account
number: 2000 96301IBAN: DE 14300700100200696301
10. The Supplier shall permit CCH to carry out audits at any time, the costs of
which shall be borne by the Supplier.
11. The Supplier shall provide CCH with the financial status of the company on
a quarterly basis.
12. CCH is in possession of the current version of the general delivery and
payment conditions of the Supplier. The Supplier undertakes to inform CCH
without undue delay of changes to the delivery and payment conditions and
to provide CCH with the current texts. Should cooperation in Export Finance
Facility be affected by these changes, this shall require the express
agreement of CCH.
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13. Receivables from Customers from consignment deliveries, mutual deliveries,
deliveries to affiliated companies and invoices with due dates of more than
120 days cannot be financed.
14. The Supplier shall provide CCH with the audited annual financial statements
at the latest six months subsequent to the end of the fiscal year CCH
reserves the right, if required, to request supplementary information.
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SCHEDULE 6:
Form of General Customer Notification
and German Courtesy Translation
On Letterhead of Supplier
[Insert Address of relevant Customer]
Dear Sirs:
You are hereby notified that we have entered into an Export Finance Facility
Agreement dated ..... 2004 with CCH Europe GmbH and that CCH Europe GmbH will
purchase and accept assignment from us for all of the receivables owed by you to
us resulting from our shipments to you.
Please note that all of our future invoices will therefore bear payment
instructions in the form that all payments in respect of the above referenced
receivables must be made exclusively to CCH Europe GmbH Deutsche Bank
Koenigsalle 45-47D-40189 ,Dusseldorf Germany SWIFT: DEUTDEDD
Account number: 2000 96301 IBAN: DE 14300700100200696301
Please note that any payments made to us in relation to the above referenced
receivables after our receipt of your acknowledgement of this notification will
be invalid and cannot be applied in settlement of the above referenced
receivables.
We therefore kindly ask you to acknowledge by signing and returning to us the
enclosed duplicate of this irrevocable notification that you will make all
payments on our future invoices directly to the account of CCH Europe GmbH. Any
changes in or modifications to these instructions may only be made in writing by
CCH Europe GmbH directly to you. Thank you for your kind cooperation.
Yours sincerely,
For and on behalf of
We hereby acknowledge receipt of the above notification and payment instruction
and confirm our agreement to the same and, therefore, we irrevocably confirm
that we will make all payments on your invoices directly to the CCH Europe GmbH
account as instructed.
-------------------
For and on behalf of
[Customer]
34/40
SCHEDULE 6a:
German Courtesy Translation of SCHEDULE ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Benachrichtigung der Kunden
[Fugen Sie hier die Kundenanschrift ein]
Sehr geehrte Damen und ▇▇▇▇▇▇,
wir mochten Sie mit diesem Schreiben davon in Kenntnis setzen, dass wir zum
...... 2004 einen Export Finance Facility -Vertrag mit der
......................................,............., abgeschlossen haben und
dass die ................................... unsere samtlichen Ihnen gegenuber
bestehenden Forderungen aus unseren Lieferungen an Sie ankaufen und damit
ubernehmen wird.
Unsere Rechnungen werden ▇▇▇▇▇ kunftig mit dem Hinweis versehen sein, dass
jegliche zur ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Zahlungen ausschlie(beta)lich auf das Konto der
...............................200........... bei der Deutschen Bank Dusseldorf
(BLZ:............, SWIFT-Code:............) zu erfolgen haben.
Bitte beachten Sie, dass alle nach unserem Erhalt des vorliegenden, von Ihnen
zum Zeichen Ihres Einverstandnisses unterzeichneten Benachrichtigungsschreibens
bei uns eingehenden Zahlungen in Bezug auf o.g. Forderungen unwirksam sind und
somit nicht zur Begleichung der in diesem Zusammenhang bestehenden
Forderungsschuld dienen konnen.
Wir mochten Sie ▇▇▇▇▇ bitten, das beiliegende Duplikat dieser unwiderruflichen
Benachrichtigung zum Zeichen Ihres Einverstandnisses mit der nun geltenden
Regelung, dass alle Rechnungsbetrage kunftig direkt auf das Konto der
.................................. zu uberweisen sind, zu unterzeichnen und an
uns zuruckzusenden. Anderungen der vorstehenden Bestimmungen sind nur dann
wirksam, wenn sie seitens der ..................................... in
Schriftform erfolgen und Ihnen unmittelbar mitgeteilt werden. Fur die Beachtung
des oben Genannten bedanken wir uns bei Ihnen im Voraus.
Mit freundlichen Gru(beta)en
Hiermit bestatigen wir den Erhalt der obigen Benachrichtigung und
Zahlungsbestimmung und erklaren uns mit deren Inhalt einverstanden. Wir
verpflichten uns ▇▇▇▇▇ unwiderruflich, alle Zahlungen zur Begleichung der von
Ihnen ausgestellten Rechnungen entsprechend den Bestimmungen dieses Schreibens
direkt auf das Konto der ................................... zu uberweisen.
-------------------
fur und im Auftrag von
[▇▇▇▇▇]
35/40
SCHEDULE 7:
Invoice
and German Courtesy Translation
The Supplier will, without any exception, furnish all Invoices to the Customer
with the following mandatory provision:
"In accordance with the notification to you by us dated [...] and your
acknowledgement of such notification dated [...]. all amounts due on this
invoice are solely and irrevocably to be paid to the account of CCH Europe GmbH
Deutsche Bank Koenigsalle 45-47 D-40189 ,Dusseldorf Germany SWIFT: DEUTDEDD US$
Account number: 200096301 IBAN: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Any payments to an account other than the aforementioned account of CCH
Europe GmbH will be invalid and cannot be applied in settlement of this or
any invoice, especially with respect to the reservation of retention of
title for the goods. Acceptance of the delivery note by your authorized
representative is your confirmation that payment of this invoice will be
made on or before the due date.
The transfer of title ("Eigentumsubergang") is subject to the full payment
of the amounts due on this invoice."
All duplicate invoices submitted to CCH Europe GmbH must bear the wording by the
Authorized Consultant that "this is a true duplicate copy of the Invoice and
payment instruction sent by the Supplier to the Customer" and must be signed for
and on behalf of the Authorized Consultant.
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SCHEDULE 7a:
German Courtesy Translation of SCHEDULE 7
Rechnung
Der Lieferant wird ausnahmslos alle Kundenrechnungen mit folgender Bestimmung
versehen:
,,Entsprechend unserem an Sie versendeten Benachrichtigungsschreiben vom
[...] und Ihrer diesbezuglichen Einverstandniserklarung vom [...] hat die
Zahlung samtlicher aufgrund dieser Rechnung falliger Betrage auf das Konto
der ...............................(Konto-Nr. 200..........., Deutsche Bank
Dusseldorf, BLZ:........., SWIFT-Code:.............) zu erfolgen. In diesem
Zusammenhang getatigte Uberweisungen auf ein anderes als das oben genannte
Konto sind grundsatzlich unwirksam und konnen nicht zur Begleichung dieser
oder jedweder anderen Rechnung dienen; insbesondere bliebe in einem solchen
Fall der Eigentumsvorbehalt bestehen. Durch Annahme des Lieferscheins durch
einen dazu bevollmachtigten Vertreter Ihres Unternehmens bestatigen Sie die
Zahlung des auf dieser Rechnung angegebenen Betrags zum oder vor dem
Falligkeitstermin.
Ein Eigentumsubergang erfolgt erst nach Zahlung des vollen
Rechnungsbetrags."
Samtliche der .....................................vorgelegten
Rechnungsduplikate mussen einen Vermerk des Bevollmachtigten Beraters aufweisen,
der bestatigt, dass es sich bei ihnen jeweils um ,,ein originalgetreues Duplikat
der vom Lieferanten an den Kunden geschickten Rechnung und Zahlungsbestimmung"
handelt und mussen fur den und im Auftrage des Bevollmachtigten Beraters
unterzeichnet sein.
37/40
SCHEDULE 8:
Form of Delivery Note
and German Courtesy Translation
The Customer has to approve the receipt and the acceptance of the delivered
goods and to confirm the contractual delivery on each Delivery Note as follows:
Date:
From:
Re:
To: CCH Europe GmbH
The purchased items and services rendered correspond to the contractual quantity
and qualities specified per our agreement with Applitech. Further we acknowledge
that the delivered items and services are free of defects which would reduce the
value or its contractual usability. Deviations, if any, are only negligible.
Accordingly, these deliveries of the purchased items from Applitech are
accepted. All invoices are due and payable and there will be no set offs or
claims that would reduce the amounts referenced in the invoices above.
Acknowledged by:
------------------------------
Name & Title:
------------------------------
[Signature of duly authorized representative of ----- and evidence of the
Authorization]
38/40
SCHEDULE 8a:
German Courtesy Translation of SCHEDULE 8
Lieferscheinvermerk (Muster)
Der ▇▇▇▇▇ hat den Erhalt und die Annahme der gelieferten ▇▇▇▇ zu genehmigen und
die vertragsgema(beta)e Lieferung auf jedem Lieferschein wie folgt zu
bestatigen:
1. Bei einer Warenkontrolle in der Vereinigten Staaten:
Auf dem Briefbogen von Lieferanten
RECHNUNGSDATEN
,,Zum Zeitpunkt der Ubergabe an den Spediteur entspricht die gekaufte
▇▇▇▇ in ▇▇▇▇▇ und Qualitat den vertraglichen Vereinbarungen und ist
frei von Mangeln, die ihren ▇▇▇▇ oder ihre vertraglich zugesicherte
Nutzbarkeit mehr als nur unwesentlich mindern.
Diese Lieferung wird ▇▇▇▇▇ angenommen."
[Unterschrift des ordnungsgema(beta) bevollmachtigten Vertreters des
Kunden und Nachweis der Bevollmachtigung]
Bestatigt von [Unterschrift des Bevollmachtigten Beraters der
........................ Europe GmbH]
1. Bei einer Warenkontrolle au(beta)erhalb der Vereinigten Staaten:
Auf dem Briefbogen von Lieferanten
RECHNUNGSDATEN
"Die gekaufte ▇▇▇▇ entspricht zum Lieferzeitpunkt in ▇▇▇▇▇ und
Qualitat den vertraglichen Vereinbarungen und ist frei von Mangeln,
die ihren ▇▇▇▇ oder ihre vertraglich zugesicherte Nutzbarkeit mehr als
nur unwesentlich mindern. Wir bestatigen, dass wir die ▇▇▇▇ nach der
Lieferung gepruft und keinerlei ▇▇▇▇▇▇ festgestellt haben.
Diese Lieferung wird ▇▇▇▇▇ angenommen.
[Unterschrift des ordnungsgema(beta) bevollmachtigten Vertreters des
Kunden und ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇]"
▇▇/▇▇
▇▇▇ Europe GmbH
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Tel: +49211 520646 - 0
Fax: +49211 520646 - 46
E-mail: ▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
SCHEDULE 9
Bankverbindung Handelregister: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Deutshe Bank Dusseldorf Geschaftfuhrer: Eren Nil, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇
BLZ: 300 700 10 ▇▇▇▇▇▇-Nir: 103 5717 1610
▇▇▇.▇▇.: 2006936 Handelregister
------------------------------------------------------------------------------
Address of the Supplier
Date:
Agency Agreement
----------------
Dear Sirs,
We refer to the Export Finance Facility signed between you and CCH Europe dated
XXXX.
With reference to the above mentioned Agreement CCH Europe hereby requests you
to deliver directly to the Customer the goods that are the subject of any
receivable.
Kindly confirm your agreement to the above by countersigning this Addendum and
returning the same to us.
Yours Truly
CCH Europe GmbH
We hereby confirm that we are in agreement with the terms as above
------------------------------------------------------------------
40/40
Signed by the Supplier
Company Stamp.