Exhibit 10.37
TCE CAPITAL CORPORATION
000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Tel: (000) 000-0000 o Fax: (000) 000-0000
TCE Capital Corporation Factoring Agreement
Between:
TCE CAPITAL CORPORATION ("TCE")
And:
WIRELESS AGE COMMUNICATIONS LTD.
Registered Office Address: 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxx X0X 0X0
Xxxxxxxxxxxx Entity No.: 599005
- and -
WIRELESS SOURCE DISTRIBUTION LTD.
Registered Office Address: 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxx X0X 0X0
Xxxxxxxxxxxx Entity No.: 101022990
Ontario Corporation No.: 1616454
(each an "Assignor")
And:
WIRELESS AGE COMMUNICATIONS, INC.
Registered Office Address: 0000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx
00000
Nevada, USA Corporation No.: C30856-00
("Additional Covenantor")
This Agreement is made as of January __, 2006. For good and valuable
consideration acknowledged to have been received, the parties agree as follows:
1.00 Interpretation
1.01 In this Agreement:
(a) "Account Debtors" means the persons noted in the Schedules as
customers/invoices of Assignor and "Account Debtor" means any
one of them;
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(b) "Agreement" means this Agreement, all Schedules, and any
appendices, amendments, addenda or riders hereto;
(c) "Associate of Assignor" means an affiliate (within the meaning
of the Ontario Business Corporations Act), director,
shareholder or employee of Assignor or Additional Covenantor,
or a person who is the child of Additional Covenantor or a
director of Assignor or an affiliate of Assignor, or a person
who is the spouse or child of the spouse of Additional
Covenantor, or spouse or child of a director of Assignor or an
affiliate of Assignor;
(d) "Banking Day" means a day other than a Saturday, Sunday,
public holiday or other day on which banks in Toronto, Ontario
are authorized or required by law to be closed, but does not
include Simcoe Day;
(e) "Designated Due Date" means the date identified as such in the
Schedules for each particular Purchased Receivable;
(f) "Disqualified Receivable" means a Purchased Receivable in
relation to which Assignor is in breach of a warranty,
covenant or other undertaking under this Agreement;
(g) "Purchased Receivables" means the Receivables described in the
Schedules;
(h) "Receivable" means an account receivable arising under a
contract between one or more persons and Assignor for the
supply by Assignor of goods or other materials, services, or a
combination of goods or other materials and services, as more
particularly described in the Schedules; and
(i) "Schedules" means the schedules which are or may from time to
time be executed by TCE and Assignor and attached hereto or
incorporated herein by reference and made a part hereof all
upon the terms and conditions set forth in this Agreement and
in any such Schedule or Schedules, and "SCHEDULE" means any
one of them. A sample form of Schedule (the form and content
of actual Schedules may vary) is annexed to this Agreement as
Appendix III.
1.02 In this Agreement:
(a) a word importing only the masculine, feminine or neuter gender
includes members of the other genders;
(b) a word defined in or importing the singular number has the
same meaning when used in the plural number, and vice versa;
(c) a reference to any Act, By-law, Rule or regulation or to a
provision thereof shall be deemed to include a reference to
any Act, By-law, Rule or regulation or provision enacted in
substitution therefor or amendment thereof;
(d) the headings to each section are inserted for convenience of
reference only and do not form part of this Agreement; and
(e) all accounting terms have the same meanings as are applied to
those terms by the Canadian Institute of Chartered
Accountants.
1.03 If two or more individuals, corporations, partnerships or other business
associations (or any combination of two or more thereof) are named above and
execute this Agreement as Assignor or as Additional Covenantor, the liability of
each such individual, corporation, partnership or other business association
under this Agreement shall be joint and several and the release or discharge by
TCE of one shall not release or discharge the others. In like manner, if
Assignor or Additional Covenantor named in this Agreement is a partnership or
other business association, the members of which are by virtue of statutory or
general law subject to personal liability, the liability of each such member
shall be joint and several and the release or discharge by TCE of one shall not
release or discharge the others. This Agreement shall be interpreted to reflect
multiple parties being named and executing this Agreement as Assignor or as
Additional Covenantor. By way of example, the term "Receivable" includes an
account receivable for any party or parties named and executing this Agreement
as Assignor.
2.00 Purchase of Receivables
2.01 Assignor hereby sells and TCE hereby purchases all of the Purchased
Receivables.
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2.02 Ownership of all Purchased Receivables shall vest in TCE together with all
rights under or in relation to the contracts to which the Purchased Receivables
relate, including all liens or other rights in any good, material, or product or
any service that is to be supplied, all instruments (including, for greater
certainty, negotiable instruments, bills of exchange, cheques and post-dated
cheques), guarantees, security interests and insurance policies and indemnity
contracts taken or held by Assignor to secure the performance of any or all of
the obligations of the Account Debtors and the right of Assignor to rescind or
terminate such contracts or to accept a return of any goods or other materials
supplied under such contracts.
2.03 At the request of TCE, Assignor shall execute a formal written assignment
in a form satisfactory to TCE of the rights of Assignor in any one or more
contracts, Purchased Receivables, rights, instruments, guarantees or securities
described in subsection 2.02, duly completed with any required endorsement or
other signature.
2.04 Assignor hereby irrevocably appoints TCE as its attorney to execute
(including the power to execute under the seal of Assignor) and deliver in
Assignor's name all deeds, instruments or other documents that TCE may consider
necessary or advisable in order to perfect TCE's title in any Purchased
Receivable or security in respect thereof or other thing to which subsection
2.02 applies, and may supply any endorsement to any cheque or other instrument
relating to a Receivable in order to obtain payment therefor, and that power of
attorney shall be deemed to be coupled with an interest.
2.05 Until such times as an effective formal assignment is made under subsection
2.03, Assignor shall be deemed to hold every contract, Receivable, right,
instrument or security to which subsection 2.02 applies in trust for TCE.
2.06 Without limiting the generality of the foregoing provisions of this section
2.00, contemporaneously with the execution and delivery of each Schedule,
Assignor shall execute and deliver to TCE with respect to each Purchased
Receivable included in such Schedule the form of direction and authorization to
Account Debtors annexed to this Agreement as Appendix I. At the request of TCE,
Assignor shall also deliver to TCE contemporaneously with the execution and
delivery of each Schedule acknowledgements signed by those Account Debtors
specified by TCE, which acknowledgements shall be in the form of acknowledgement
annexed to this Agreement as Appendix II. Notwithstanding the foregoing, TCE
may, in writing, expressly authorize such other forms of direction and
authorization and of acknowledgement for specified Account Debtors.
2.07 Assignor hereby acknowledges and confirms that TCE may, from time to time
and in its sole discretion, refuse to purchase any Receivables and that any
factoring facility established by TCE for Assignor is subject to review and
cancellation at any time at the sole discretion of TCE. Similarly, Assignor is
under no obligation to sell any Receivables to TCE but remains subject to any
minimum income guarantee to TCE as may now or hereafter be provided for in any
terms letter referenced in section 9.00 below or any amendment thereof.
3.00 Purchase Price
3.01 The purchase price to be paid in respect of each Purchased Receivable is
the amount (including any sales or value added tax) payable by the Account
Debtor, less the aggregate of:
(a) any discount or other deduction allowed or allowable to the
Account Debtor by Assignor; and
(b) an amount equal to the discount percentage specified in the
applicable Schedule, determined by reference to the gross
value of the Purchased Receivable, before any discount or
other deduction allowable to the Account Debtor by Assignor,
other than any trade-in,
all as set forth in the applicable Schedule. Where the currency of a Purchased
Receivable is other than Canadian currency, the purchase price payable therefor
by TCE, unless otherwise agreed by TCE in the applicable Schedule, shall be the
Canadian currency equivalent of that amount as determined on the day on which
payment is to be made, less TCE's customary currency conversion charges, as
determined by TCE's buying rate for that foreign currency, where there is such a
buying rate, and by the average buying rate of the five major chartered banks in
Canada, where TCE has no such buying rate.
3.02 TCE shall be entitled to be paid a set-up or administration fee upon the
execution and delivery of each Schedule. The amount of any such set-up fee shall
be as set out in each Schedule.
3.03 A holdback in the amount set out in the applicable Schedule will be
deducted from the aggregate purchase price of the Purchased Receivables
identified in such Schedule and any amounts payable by Assignor under section
5.00 will be charged against the holdback. The balance of the holdback, net of
any such charges, will be paid to Assignor upon receipt by TCE of the full
amount of the Purchased Receivables described in the applicable Schedule
together with any amounts payable by Assignor under section 5.00.
3.04 The aggregate purchase price of the Purchased Receivables described in a
Schedule, net of any applicable fees and holdback, shall be paid by TCE by
cheque payable to Assignor, such cheque to be delivered on the Banking Day next
following the date on which Assignor has executed and returned the applicable
Schedule to TCE.
4.00 Representations and Warranties
4.01 Assignor and Additional Covenantor jointly and severally represent and
warrant that:
(a) each of Assignor and Additional Covenantor, as applicable, is
a duly incorporated, organized and subsisting corporation, and
has all requisite powers, capacities, licences, permissions
and has taken all requisite steps under its governing
legislation and the other laws applicable to it, and under its
articles of incorporation, by-laws and governing resolutions
to:
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(i) own the assets which Assignor or Additional
Covenantor has represented as belonging to Assignor
or Additional Covenantor in any financial statement
or representation made by Assignor or Additional
Covenantor to TCE;
(ii) carry on all businesses in which Assignor or
Additional Covenantor is engaged; and
(iii) enter into, exercise its rights and perform and
comply with its obligations under this Agreement,
and that all actions, conditions and things have been done,
taken or fulfilled with respect thereto, that are required by
law, contract or otherwise and there has been no act or
omission of Assignor or Additional Covenantor which may
prevent TCE from obtaining full benefit or this Agreement in
accordance with its terms and intent;
(b) neither Assignor nor Additional Covenantor is a party to any
agreement under the terms of which either Assignor or
Additional Covenantor is prohibited or restricted from
entering into any of the obligations assumed, liabilities
imposed, or restrictions accepted by Assignor and Additional
Covenantor under this Agreement;
(c) no encumbrance exists on or over any Purchased Receivable or
may apply, except as disclosed in writing to TCE prior to the
execution and delivery of the applicable Schedule;
(d) no litigation, arbitration or administrative proceeding is
current or pending, so far as each of Assignor and Additional
Covenantor is aware, in respect of Assignor or any of its
subsidiaries, which appears reasonably likely to have a
materially adverse effect on Assignor and its subsidiaries
taken as a whole;
(e) to the best of each Assignor's and Additional Covenantor's
information and belief and after making diligent inquiries:
(i) the information concerning the business affairs and
financial and other condition of Assignor or
Additional Covenantor that is contained in all
documents, memoranda, records, statements made, sent
or given by Assignor or Additional Covenantor to TCE
during the course of the negotiation of this
Agreement or their application to enter into this
Agreement with TCE and in Assignor's current
regulatory filings, is true and accurate in all
material respects;
(ii) neither Assignor nor Additional Covenantor is aware
of any material facts or circumstances which have not
been disclosed; and
(iii) the Designated Due Date corresponding to each
Purchased Receivable represents the date by which
Assignor and Additional Covenantor reasonably expect
such Purchased Receivable to have been collected in
full;
(f) Assignor has good and marketable title to the Purchased
Receivables, free of all encumbrances save those of which TCE
has been advised and to which TCE has consented in writing
prior to the execution and delivery of this Agreement or the
applicable Schedule;
(g) prior to the date of this Agreement or the date of the
applicable Schedule, each of Assignor and Additional
Covenantor disclosed to TCE every fact or matter known to
Assignor or Additional Covenantor that Assignor or Additional
Covenantor knew or reasonably ought to have known would
influence a reasonably prudent person in its decision of
whether or not to purchase the Purchased Receivables;
(h) none of the Account Debtors is an Associate of Assignor; and
(i) every contract relating to a Purchased Receivable:
(i) was made in the ordinary course of business of
Assignor;
(ii) provides terms of repayment that are no more liberal
to the Account Debtor than those permitted under the
applicable Schedule;
(iii) is subject to the laws of Ontario or such other
jurisdiction as has been previously approved in
writing by TCE;
(iv) provides for payment to be made by the Account Debtor
in Canadian currency or in a foreign currency
approved by TCE;
(v) has been properly and fully performed by Assignor,
except with respect to on-going warranty obligations
of Assignor, such that the Account Debtor of such
contract, at the time of execution of the Schedule,
is liable to pay the full amount of the Purchased
Receivable shown as then owing in the applicable
Schedule; and
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(vi) permits its assignment to TCE as provided under this
Agreement.
4.02 Assignor and Additional Covenantor jointly and severally covenant and agree
that as long as any amount remains owing to TCE under this Agreement or in
respect of any Purchased Receivable, they shall:
(a) ensure that the representations and warranties given in
subsection 4.01 remain true throughout such period;
(b) perform all contractual and legal obligations of Assignor to
every Account Debtor and refrain from permitting any right to
set-off, counterclaim or other contra to arise in favour of
any Account Debtor;
(c) notify TCE promptly of any dispute between Assignor and an
Account Debtor concerning a Purchased Receivable;
(d) pay to TCE any remittance received by Assignor in payment of
or on account of any Purchased Receivable, and pending such
payment all such remittances shall be received and held by
Assignor in trust for TCE and shall be kept apart from
Assignor's own funds;
(e) co-operate fully with TCE in the collection of any Purchased
Receivable or the enforcement of any security or right
relating to a Purchased Receivable;
(f) refrain from rescinding, terminating or varying any contract
relating to a Purchased Receivable, except with the prior
consent of TCE;
(g) observe and conform to all laws and all valid requirements of
any governmental authority with respect to all or any part of
its business, the Purchased Receivables and all covenants,
terms and contracts upon or under which the Purchased
Receivables are held;
(h) defend the Purchased Receivables against the claims and
demands of all other parties claiming to have an interest
therein, and Assignor shall not without the prior written
consent of TCE, create or suffer or permit to be created or
levied upon the Purchased Receivables or any part thereof any
charge, lien, encumbrance, execution, sequestration, extent or
analogous process;
(i) from time to time upon request by TCE do, execute, acknowledge
and deliver, or cause to be done, executed, acknowledged and
delivered, all and every such further acts, deeds, mortgages,
hypotecs, transfers and assurances in law as TCE shall
require:
(i) to perfect the rights of TCE in all or part of the
Purchased Receivables; or
(ii) to carry into effect the intentions of the parties as set
out in this Agreement;
(j) keep proper books of account and maintain therein true and
faithful entries of all dealings and transactions with respect
to the Purchased Receivables and the Account Debtors in
accordance with generally accepted accounting principles;
(k) permit TCE, by its officers or agents, to enter the premises
of Assignor and to inspect the books and records of Assignor
and to make extracts therefrom;
(l) pay all tax instalments on time and remit to the appropriate
taxing authority when due all amounts deemed by any rule of
law to be held in trust for the benefit of that taxing
authority, and from time to time provide to TCE proof that all
such payments and remittances have been made;
(m) provide TCE with prior written notice of any change in the
registered or beneficial ownership of the shares in the
capital of Assignor, or any proposed merger or amalgamation;
(n) comply with all applicable environmental laws and regulations
and advise TCE promptly of any action, requests or violation
notices received concerning Assignor's premises; and
(o) provide TCE with such financial and other information as TCE
may request from time to time;
(p) not, directly or indirectly, guarantee or otherwise provide
for, on a direct or indirect or contingent basis, the payment
of any monies or performance of any obligations by any third
party except as may be provided in this Agreement; and
(q) pay all processing and reasonable legal costs (if any)
associated with advances under each Schedule.
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4.03 Assignor and Additional Covenantor expressly acknowledge and agree that TCE
does not guarantee or warrant any goods, materials or services supplied by
Assignor under any contract giving rise to any Receivable, and TCE shall not be
liable or in any way responsible for the same.
5.00 Recourse
5.01 Assignor shall pay to TCE a per diem amount equal to the per diem discount
factor set forth in the applicable Schedule multiplied by the amount of any
Purchased Receivable not collected by the applicable Designated Due Date, such
amount to be payable from the applicable Designated Due Date until the day when
the full amount of such Purchased Receivable is collected. Any payment under
this Agreement delivered or made to TCE by 2:00 p.m. local time on a Banking Day
shall be credited as of that day but if made afterwards or on a Non-Banking Day
shall be credited as of the next Banking Day.
5.02 By giving written notice to Assignor with respect to a Purchased Receivable
specifying the name of the Account Debtor and the amount remaining owing in
respect of the Purchased Receivable, TCE may require Assignor to repurchase the
Purchased Receivable from TCE (without warranty of any nature by TCE) and the
repurchase price in respect of that Purchased Receivable shall be the aggregate
of the amount remaining owing plus the interest payable under subsection 5.03
less any amount paid by Assignor to TCE under subsection 5.01.
If Assignor repurchases a Purchased Receivable prior to the applicable
Designated Due Date, then TCE shall rebate to Assignor a portion of the discount
referred to in paragraph 3.01(b) based on the number of days remaining until the
Designated Due Date relative to the discount period used in determining the
original discount, subject, however, to any applicable minimum discount period.
5.03 TCE shall be entitled to interest at a rate equal to 24.45% per annum on
any Purchased Receivable that TCE requires to be repurchased under subsection
5.02, such interest to be payable from the applicable Designated Due Date until
the day when payment is made by Assignor. For greater certainty, TCE shall not
be entitled on any given day to both the per diem amount under subsection 5.01
and interest under this subsection 5.02 in respect of the same Purchased
Receivable.
5.04 Until such time as the repurchase price is paid or deemed to have been paid
by Assignor, the Purchased Receivable and all rights, title and interest therein
and all securities relating thereto shall remain vested in TCE.
5.05 Where Assignor has paid in full the repurchase price with respect to a
Purchased Receivable, then:
(a) any remittance received by TCE thereafter in respect of that
Purchased Receivable, subject to any other rights TCE may have
thereto, shall be paid by TCE to Assignor by cheque payable to
Assignor, such cheque to be delivered no later than the next
Banking Day; and
(b) upon the request and at the expense of Assignor, TCE shall do,
execute, acknowledge and deliver, or cause to be done,
executed, acknowledged and delivered, all and every such
further acts, deeds, mortgages, transfers and assurances in
law as Assignor may require in order to complete or perfect
the assignment of the Purchased Receivable and all rights,
title or interest in the contract to which it relates or in
any security relating thereto, the whole without warranty of
any nature by TCE in favour of Assignor.
5.06 Where a Purchased Receivable is in the reasonable opinion of TCE a
Disqualified Receivable, TCE may charge back to Assignor the amount of the
Disqualified Receivable by giving written notice to that effect to Assignor, and
this section shall apply, with the necessary modifications, to the repurchase of
the Disqualified Receivable by Assignor.
6.00 Collection of Purchased Receivables
Except where a Purchased Receivable has been repurchased under
subsection 5.02, TCE shall have the exclusive right to collect and enforce
payment of the Purchased Receivable and to enforce any security held in respect
of a Purchased Receivable in a manner and to an extent that it in its absolute
discretion may consider advisable, and may institute, defend or compromise in
the name of TCE or Assignor legal actions or other proceedings in relation to a
Purchased Receivable or security in respect of a Purchased Receivable on such
terms as TCE may consider fit.
7.00 Appropriation of Receipts
Between TCE and Assignor, TCE may appropriate any payment received by
TCE from an Account Debtor to any of the Purchased Receivables relating to the
Account Debtor.
8.00 Indemnification
8.01 Assignor and Additional Covenantor hereby jointly and severally covenant
and agree to indemnify and hold TCE harmless from and against any and all
expenses, liabilities, claims, actions, causes of action, suits or demands
whatsoever, whether groundless or otherwise, and from and against any and all
losses, damages, costs (including legal costs on a solicitor and client basis
and court costs), charges and other expenses of every nature and character which
TCE may have, sustain, incur or become liable for or by reason of or in any way
arising out of TCE:
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(a) entering into or performing its obligations under this
Agreement; and/or
(b) collecting any Purchased Receivable or enforcing any security
or right relating to any Purchased Receivable; and/or
(c) taking or enforcing any security from Assignor in support of
Assignor's obligations under this Agreement including, without
limitation, any environment-related liabilities existent now
or in the future with respect to any property subject to such
security.
8.02 Additional Covenantor hereby covenants and agrees to indemnify and hold TCE
harmless from and against any and all expenses, liabilities, claims, actions,
causes of action, suits or demands whatsoever, whether groundless or otherwise,
and from and against any and all losses, damages, costs (including legal costs
on a solicitor and client basis and court costs), charges and other expenses of
every nature and character which TCE may have, sustain, incur or become liable
for or by reason of or in any way arising out of Assignor's failure to comply
with any of the provisions of section 5.00 and, in particular, but without
limitation, any delay or failure on the part of Assignor to repurchase a
Purchased Receivable from TCE as required pursuant to subsection 5.02.
8.03 Without IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING PROVISIONS OF
THIS SECTION 8.00, Additional Covenantor ACKNOWLEDGES AND AGREES THAT Tce, IN
ITS SOLE DISCRETION, MAY REQUIRE Additional Covenantor TO PERFORM ANY AND ALL OF
THE OBLIGATIONS SET FORTH IN SECTION 5.00 OF THIS Agreement TO BE PERFORMED BY
Assignor (WITH ALL CHANGES NECESSARY TO REFLECT SUBSTITUTION OF Additional
Covenantor FOR ASSIGNOR) INCLUDING, WITHOUT LIMITATION, THE OBLIGATION TO
PURCHASE FROM Tce ANY Purchased Receivable NOT COLLECTED BY THE APPLICABLE
Designated Due Date AND ANY Disqualified Receivable.
8.04 The parties acknowledge and agree that, as an inducement for TCE to enter
into this Agreement with Assignor, Additional Covenantor shall execute and
deliver, and covenants and agrees to execute and deliver a separate guarantee
and postponement of claim concurrently with the execution and delivery of this
Agreement by Assignor and Additional Covenantor. For greater certainty, such
guarantee shall survive any disclaimer, rejection, surrender, repudiation,
disaffirmance or other termination of this Agreement or the bankruptcy of
Assignor and may be relied upon by TCE relative to any and all debts,
liabilities and obligations of Assignor whether under this Agreement or
otherwise.
8.05 The parties acknowledge and agree that, as an inducement for TCE to enter
into this Agreement with Assignor and Additional Covenantor, Assignor shall
execute and deliver, and covenants and agrees to execute and deliver a separate
general security agreement and a separate general assignment of accounts
concurrently with the execution and delivery of this Agreement by Assignor and
Additional Covenantor, to secure, inter alia, the performance and observance of
the provisions under this Agreement on Assignor's part to be observed or
performed, on terms and conditions and as more fully provided in such separate
general security agreement and separate general assignment of accounts.
9.00 Status of Agreement
This Agreement between TCE and Assignor and Additional Covenantor
together with a certain terms letter dated December 23, 2005 from TCE to
Assignor as accepted by Assignor and Additional Covenantor (as the same may be
amended from time to time) constitutes the entire agreement between the parties
with respect to the purchase of the Purchased Receivables. In the event of any
conflict or inconsistency between the provisions of the terms letter and the
provisions of this Agreement, the provisions of this Agreement shall govern to
the extent of such conflict or inconsistency. Facsimile copies of this Agreement
and each Schedule are to be considered and treated the same as original copies
of such documents.
10.00 Assignment
10.01 This Agreement is personal to each of Assignor and Additional Covenantor
and no right or obligation of Assignor or Additional Covenantor under this
Agreement may be assigned by either of them without the written consent of TCE.
10.02 This Agreement may be assigned, deposited, pledged or hypothecated by TCE
absolutely or as collateral security for its present and future primary or
contingent indebtedness and liabilities, and in the event of any such
assignment, deposit or pledge, the person to whom this Agreement is assigned,
deposited, pledged or hypothecated shall take it free and clear of any right of
set-off, counterclaim or other counterclaim that may exist between TCE and
Assignor and/or Additional Covenantor.
10.03 This Agreement and all its provisions shall enure to the benefit of, and
be binding upon, the parties and their respective heirs, estate trustees,
personal legal representatives, successors and permitted assigns.
11.00 Further Assurances
Assignor and Additional Covenantor each shall draw, execute and deliver
at its own expense, all such instruments and documents, and do all such acts and
things as TCE may from time to time reasonably consider necessary or advisable
for the purpose of carrying out the intent and provisions of this Agreement.
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12.00 Manner of Giving Notice
12.01 Any notice, instruction or document required or permitted to be given or
served by this Agreement or bylaw may be given personally or by facsimile (where
the intended recipient is equipped to receive such a form of telecommunication)
or by prepaid courier or registered mail to the intended recipient at any one of
its addresses as may be set out in this Agreement and any party may by notice
given in accordance with this subsection change its address for the purposes of
this subsection.
12.02 Any notice shall be deemed (in the absence of evidence of prior receipt)
to have been received by the intended recipient the same day if personally
served, the next business day if sent by facsimile or by courier, and on the
fifth business day next following where sent by registered mail.
13.00 Amendments to be in Writing
This Agreement shall not be deemed to be or construed as having been
amended as a result of any oral communication between the parties or as a result
of any practice of the parties, but all amendments to this Agreement shall be in
writing and shall be signed by all parties, provided that any such agreement may
be executed and delivered in counterparts by facsimile or by other means.
14.00 Governing Law
14.01 This Agreement is subject to and shall be construed in accordance with
the laws of Ontario.
14.02 Each of the parties consents to the non-exclusive jurisdiction of the
courts of Ontario with respect to all disputes arising under this Agreement.
15.00 Time of the Essence
Time shall be of the essence in the performance of all obligations by
all parties to this Agreement.
16.00 Counterparts
This Agreement may be executed and delivered in counterparts by
facsimile or by other means each of which when so executed and delivered shall
be deemed to be an original and such counterparts together shall constitute one
and the same Agreement, which shall be sufficiently evidenced by one of each
such original counterparts.
SIGNED, SEALED AND DELIVERED, as of the date first above-written.
TCE CAPITAL CORPORATION WIRELESS AGE COMMUNICATIONS
(TCE) LTD. (Assignor)
By:____________________________ By:_________________________________
Name: Name: Xxxx X. Xxxxxxxx
Title: Title: Chief Financial Officer
(Authorized Signing Officer) (Authorized Signing Officer)
WIRELESS SOURCE DISTRIBUTION WIRELESS AGE COMMUNICATIONS,
LTD. (Assignor) INC. (Additional Covenantor)
By:____________________________ By:_________________________________
Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
(Authorized Signing Officer) (Authorized Signing Officer)
9
Appendix I
This is Appendix I to TCE Capital Corporation Factoring Agreement dated
January ___, 2006.
DIRECTION AND AUTHORIZATION
TO:
ATTN:
FROM:
RE:
========== ================================== ================= ================= ================ ================= ===============
NO. NAME OF ACCOUNT DEBTOR INV. NO. DATE OF INVOICE PURCHASE ORDER INVOICE AMOUNT DUE DATE
# ($)
---------- ---------------------------------- ----------------- ----------------- ---------------- ----------------- ---------------
1
========== ================================== ================= ================= ================ ================= ===============
You are hereby irrevocably authorized, instructed and directed to pay
all monies due and owing in respect of the referenced invoice(s), without
setoff, to or to the order of Tce Capital Corporation, 000 Xxxxxxxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx X0X 0X0, and this shall be your good, sufficient and
irrevocable authority to so do. The invoiced amount noted above has been
absolutely assigned to TCE Capital Corporation.
Facsimile documents pertaining to this transaction are to be considered
and treated the same as original documents.
DATED this day of , 200 .
------- ------------------------------ ---
--------------------------
(Assignor)
By:
--------------------------
Name:
Title:
(Authorized Signing Officer)
10
Appendix II
This is Appendix II to TCE Capital Corporation Factoring Agreement dated
January ____, 2006.
ACKNOWLEDGEMENT
TO: TCE Capital Corporation
FROM:
RE:
========== ================================== ================= ================= ================ ================= ===============
NO. NAME OF ACCOUNT DEBTOR INV. NO. DATE OF INVOICE PURCHASE ORDER INVOICE AMOUNT DUE DATE
# ($)
---------- ---------------------------------- ----------------- ----------------- ---------------- ----------------- ---------------
1
========== ================================== ================= ================= ================ ================= ===============
We acknowledge and confirm that there is at present due and payable to
_________________________________ (insert name of particular Assignor(s)) from
our Company the amount of $ relating to the above-referenced invoice(s) and
that the invoiced amount has been absolutely assigned to TCE Capital
Corporation.
We acknowledge and confirm that there are no conditions or setoffs in
respect of the said amount due and owing as noted above.
We acknowledge receipt of an irrevocable direction and authorization to
make payment without setoff upon said invoices to or to the order of: Tce
Capital Corporation, 000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0,
and agree to comply with such direction and authorization. Payment of the said
amount due and owing is expected to be made on or about the due date(s) noted
above.
Facsimile documents pertaining to this transaction are to be considered
and treated the same as original documents.
DATED this day of , 200 .
------- --------------------- ---
per:
----------------------------
(authorized signing officer)
11
Appendix III
This is Appendix III to TCE Capital Corporation Factoring Agreement dated
January ___, 2006.
Schedule
This is SCHEDULE to TCE Capital Corporation Factoring Agreement (the
"Agreement") dated as of January , 2005 between TCE Capital Corporation ("TCE")
and Wireless Age Communications Ltd. and Wireless Source Distribution Ltd. (each
an "Assignor") and Wireless Age Communications, Inc. ("Additional Covenantor").
PURCHASED RECEIVABLES:
Subject to the terms and conditions set forth below and in the Agreement,
Assignor agrees to sell to TCE and TCE agrees to purchase the Receivables (the
"Purchased Receivables") particulars of which (including, without limitation,
names of Account Debtors, invoice particulars and Designated Due Dates) are set
out as follows and/or in any attached Schedule "A".
------------------------------------------------------------------------------------------------------------------------------------
DATE OF INVOICE INVOICE DESIGNATED
NO NAME OF ACCOUNT DEBTOR INVOICE NUMBER CLAIM NUMBER AMOUNT ($) DUE DATE
------------------------------------------------------------------------------------------------------------------------------------
1
------------------------------------------------------------------------------------------------------------------------------------
2
------------------------------------------------------------------------------------------------------------------------------------
3
------------------------------------------------------------------------------------------------------------------------------------
4
------------------------------------------------------------------------------------------------------------------------------------
5
====================================================================================================================================
Total
------------------------------------------------------------------------------------------------------------------------------------
PURCHASE PRICE:
================================================================================================= ==================
Gross Value of Receivables Purchased:
--------------------------------------- ------- ---------- ----------- -------------------------- ------------------
Discount: ( days @ per day)
------------------------------------------------------------------------------------------------- ------------------
Administrative Fee:
------------------------------------------------------------------------------------------------- ------------------
Holdback/Reserve: (XX%)
------------------------------------------------------------------------------------------------- ------------------
Other:
------------------------------------------------------------------------------------------------- ------------------
Other:
------------------------------------------------------------------------------------------------- ------------------
Net Amount Payable to Assignor:
================================================================================================= ==================
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by Assignor, Assignor hereby sells, assigns and transfers to TCE,
its successors and assigns, all Assignor's right, title, and interest in and to
the Purchased Receivables, including all monies due or to become due thereon.
Assignor hereby agrees that:
12
(1) this sale, assignment and transfer is an absolute sale;
(2) the Account Debtors named are indebted to Assignor in the sums
set opposite their respective names;
(3) all representations and warranties made by Assignor in the
Agreement are true and complete as of the date of this sale.
THIS SCHEDULE INCLUDES AND IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN
THE AGREEMENT.
IN WITNESS WHEREOF THE parties hereto have executed Schedule _______
effective as of the _________ day of _______, 200__.
TCE CAPITAL CORPORATION
(TCE)
By:_____________________________
Name:
Title:
(Authorized Signing Officer)
--------------------------
(Assignor)
By:_________________________________
Name:
Title:
(Authorized Signing Officer)
