Exhibit 10.70
[COMIT FACTORING LETTERHEAD]
GENERAL CONDITIONS FOR FUTURE FACTORING TRANSACTIONS
The factoring agreement entered into by:
Comit Factoring S.p.A. with registered office in Milan, Xxx Xxxxx Xxxxxx xx. 54
and
Xxxxxxx S.p.A. with registered office in Bastia Umbra (PG), Via IV Novembre no.
2/4 shall be governed by the rules contained in the following General
Conditions.
DEFINITIONS AND SCOPE OF THE AGREEMENT
FACTOR means, besides COMIT FACTORING S.p.A., the foreign Factor or the
corresponding Company of which the same avails or will avail itself for the
performance of its international services;
SUPPLIER means the company that is a client of the Factor, i.e.: the
counterparty of the factoring agreement;
DEBTOR means a natural or legal person - either Italian or foreign - which is
bound to pay one or more receivables to the Supplier;
RECEIVABLE means:
a) the receivables arisen or which will arise pursuant to agreements
executed or to be executed by the Supplier in the operation of its business and
therefore the amounts that the Supplier is entitled to receive by the Debtor as
payment of goods and/or services.
b) the consideration that the Supplier is entitled to receive as
payment by the Debtor on a different basis;
ASSIGNMENT means the agreement whereby the Supplier transfers to the Factor its
existing and/or future receivables, as defined above: law no. 52/91 and
following amendments shall apply to the assignment of receivables under a)
above, without prejudice, unless expressly excluded, to the provisions of
articles 1260 and following of the Italian Civil Code. The latter article shall
always apply to the assignment of receivables under b) above.
RECOURSE ASSIGNMENT (cessio pro solvendo) means that the Assignor, besides the
existence of receivables, guarantees also the solvency of the assigned Debtor.
NON - RECOURSE ASSIGNMENT (cessio pro soluto) means that the Assignee guarantees
only the existence of receivables and not the solvency of the assigned Debtor.
ARTICLE 1 - SCOPE OF THE AGREEMENT
The scope of this agreement is the regulation of future assignments
against payment of the receivables claimed by the Supplier to its debtors, as
well as the performance by the Factor of the following services:
a) the reminder for the payment, the collection of the receivables claimed
by the Supplier to its debtors, as well as the registration on its
records until collection thereof, of receivables and administrative and
managerial events connected thereto;
b) the advanced payment, if any, wholly or partly, of the consideration
for the assigned receivables;
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c) the assumption, if any, wholly or partly, of the risk connected to the
failure to pay due to the default of debtors;
d) the Factor may also perform upon the Supplier's request additional
services such as the evaluation of potential Italian and foreign
customers and the recovery, even a judicial one, of the receivables.
For the performance of the abovementioned services and for relevant charges and
risks, the Supplier shall pay to the Factor the compensations specified in
detail under the "Special Conditions" executed elsewhere, which shall however be
deemed for all purposes as an integral part hereof.
SECTION I - REGULATION OF THE ASSIGNMENT
ARTICLE 2 - TERMS AND CONDITIONS OF THE ASSIGNMENT OF RECEIVABLES
The Supplier, unless otherwise agreed upon, shall propose to the Factor
the assignment of all of its receivables to any Debtors; in case the Factor
agrees to assign single receivables, the Supplier shall propose such assignment
within and not later than 30 days from the date of shipment of goods or
performance of services. The Debtor shall be notified of any accepted assignment
by the Supplier, at its expenses, in the most suitable forms which shall be
however indicated by the Factor.
The Supplier shall deliver to the Factor, within 30 days from the date
of issuance, the original and a copy of the invoices for the relevant assigned
receivables, together with all the probative, constituent and ancillary
documentation of the same receivables, including the delivery notes of the goods
and any other documents relating to the assigned receivable, including those
concerning the shipment and transportation of same goods, currency and customs
documents.
The original invoices shall bear a declaration to remind the assigned
debtor that the relevant receivable was assigned to the Factor and that the
payment, for being a releasing, shall be made to the same Factor only. The
original invoice shall be sent to the assigned debtor directly from the Factor.
For the receivables which will arise from agreements already executed
or being performed, the Supplier shall provide the Factor with a copy of the
agreement, order, confirmation of order and relevant invoicing plan.
Receivables shall be deemed to have been assigned together with the
liens, personal and collateral guarantees and other additional guarantees. Bills
of exchange, if any, or other bills shall be given to the Factor, duly endorsed
by the Supplier, where possible. The applicable banking provisions concerning
the collection, discount and acceptance of effects shall apply to such bills.
In case that the conditions of payment of receivables provide for the
issuance of bank receipts, the Factor, unless otherwise agreed upon, shall issue
such receipts to the Factor itself and collect them.
ARTICLE 3 - GUARANTEES ISSUED BY THE SUPPLIER WITH RESPECT TO ASSIGNED
RECEIVABLES
The Supplier shall guarantee, and hereby waives any future objection
thereto:
a) that the assigned receivables are or - in the case of assignment of
future receivables - shall be ascertained, ready and collectable at expiry date;
b) that the amount of the assigned receivables is or - in the case of
future receivables - shall be unquestionably due by the Debtor to the Supplier
as consideration for the goods which were actually supplied or the services
actually performed;
c) that it did fulfill and shall duly and timely fulfill the agreements
under which the receivables were created or shall be created;
d) that it is or - in the case of future receivables - shall be the
only legal and exclusive holder of the assigned receivables, which are or shall
be lawfully transferable, not subjected to attachment, garnishment, nor any
other liens in favor of third parties;
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e) that at the assignment the Debtors shall have no receivables which
may be ascribed as off-setting, even though partially, of the assigned
receivables and that the goods or services under the agreements entered into by
the Supplier and the Debtor, as well as any relevant documents, if any, shall
not be pledged or subject to liens or other charges in favor of third parties;
f) the solvency of the Debtor, except for the case under art. 10
hereof.
ARTICLE 4 - CONSIDERATION FOR THE ASSIGNMENT OF RECEIVABLES
The Factor shall pay to the Supplier a consideration, which may be
different from the nominal value of the assigned receivables but in no event
shall exceed the abovementioned nominal value. Such consideration shall be
however net of the sums withheld on whatever basis by the Debtor in relation to
credit notes, if any, issued by the Supplier, discounts, rounding-offs, price
reductions, deductions, set-offs and whatever the Debtor, though not authorized,
withholds at payment. The consideration shall be due by the Factor to the
Supplier upon the actual collection of each receivable, except for as
specifically provided for in respect of the assumption by the Factor of the risk
of omitted payment due to the Debtor's default. The parties may agree that the
Factor partly makes such payment in advance.
SECTION II -OBLIGATIONS OF THE SUPPLIER
ARTICLE 5 - NOTICE
The Supplier shall previously submit to the Factor a complete list of
all its customers, indicating for each customer the present and foreseeable
business volume, also specifying whether exist other occasional and/or
continuative factoring agreements.
During the agreement, the Supplier shall duly update the Factor in
relation with the acquisition of possible new customers and the performance of
new factoring agreements.
The Supplier hereby authorizes the Factor to notify the Autorita di
Vigilanza and the Centrale Rischi di categoria the data concerning the factoring
agreement.
ARTICLE 6 - DEBTORS
The Supplier shall cause all supply agreements, in respect of the
assigned debtors, to be governed by the laws of Italy, unless otherwise agreed
upon by the Parties, and to be performed in accordance with applicable tax,
currency and customs laws and not to contain clauses which can be detrimental to
the interests of the Factor.
The Supplier shall cause the payments of the assigned receivables to be
made by the debtors exclusively to the Factor, refraining from any initiative
directed to or in any case finalized to collect the abovementioned receivables.
In case debtors improperly make payments to the Supplier, the latter shall be
obliged to promptly transfer to the Factor any sums, securities duly endorsed,
if any, and the values received; in case of non transferable securities, the
Supplier shall not negotiate the same and shall be however obliged to use its
best efforts, together with the Factor, vis - a - vis the debtors in order to
allow the collection of the receivables by the same Factor.
The Supplier may not agree with the debtors to modify the conditions of
sale and/or performance of services, nor grant abatements, price reductions, nor
accept payment deferment, return of goods, nor reach settlements with the
debtors, without the prior written consent of the Factor.
The Supplier shall promptly notify the Factor of the issuance of credit
notes, if any, in favor of debtors, and shall send them to the Factor so that
these may be recorded.
ARTICLE 7 - CO-OPERATION
The Supplier shall co-operate in any manner, giving any relevant
information which it has been made aware of in respect of the solvency of the
assigned debtors, any of their objections, claims, complaints,
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judicial and extrajudicial claim even if not connected with their commercial
relationship. The Supplier shall also give notice of the existence of past
agreements entered into with the debtors being assigned and any current dispute,
if any.
Upon simple request of the Factor, the Supplier shall supply, at its own
expenses, copies and abstracts, even genuine ones, of accounting books and
records in any manner relating to the factoring agreement, as well as execute
any document certifying the assignment of receivables and any guarantee, if any,
to secure said receivables, which are useful to collect the same receivables and
any ancillary sum, even on a judicial or extrajudicial basis, as well as to
assign a certain date to the payments of the consideration.
SECTION III - PERFORMANCES AND OBLIGATIONS OF THE FACTOR
ARTICLE 8 - RECORDING AND COLLECTION OF THE ASSIGNED RECEIVABLES
The Factor shall collect the assigned receivables by sending a reminder
to any debtors which are in arrears with their payments or whose payments are
irregular under the procedures that the Supplier declares to know and accept.
The Factor shall record the assigned receivables on special records,
periodically notifying the Supplier of its subsequent activities.
ARTICLE 9 - ADVANCED PAYMENT OF CONSIDERATION
Upon request of the Supplier, the Factor shall pay in advance all or
part of the considerations due in respect of the collection of assigned
receivables or as of the different date agreed upon by the parties. In such a
case, conventional interest shall accrue to the sums paid in advance in the
amount determined in the "Special Conditions" executed elsewhere, until the
receivables are collected by the Factor or as of a different date agreed upon by
the parties.
Without prejudice to art. 10 below, the Supplier shall guarantee the
solvency of the Debtor. As a consequence, in the case of failure to collect the
assigned receivables at expiry date, the Supplier shall pay back to the Factor
any sums it has received for the same receivables as advanced payment of the
consideration, besides the conventional interest accrued until the date of
payback and expenses. The Supplier shall also be obliged to make such payback,
upon the Factor's request, even if the guarantees given by the Supplier in
relation with the assigned receivables are without effect or it can be
reasonably assumed that the Debtor cannot or is not willing to fulfill its
obligation. Departing from the second paragraph of article 1267 of the Italian
Civil Code the guarantee of the Supplier remains effective even though the
Factor has not started or persisted in the legal actions which can be brought
against the assigned debtor.
Upon payback of the considerations paid in advance and of any other
sums due, the receivable shall be re-transferred to the Supplier. The Factor
shall however retain the right to determine from case to case and upon explicit
request of the Supplier whether to accept to carry out the recovery of payables
or not, in the interest and at expenses of the latter.
In the case of omitted payback of the consideration paid in advance,
the Factor shall be entitled to proceed against both the Supplier and Debtor and
their co-obligors and/or guarantors in order to recover any sums due and take
any other action useful and appropriate thereto, including the stipulation of
transactions with the debtor, and the Supplier shall waive the possibility to
raise any objection thereto.
ARTICLE 10 - WAIVER OF THE GUARANTEE OF SOLVENCY BY THE FACTOR
The Factor, only upon prior explicit request of the Supplier, may waive
the guarantee given by the latter in respect of the Debtor's solvency, assuming
the risk of the Debtor' omitted payment, after setting a limit as to quantity
(ceiling) upon its assumption of risk and within the framework of the applicable
provisions and procedures contained in section "Assumption on the part of the
Factor of the risk of Debtor's omitted payment.
SECTION IV - ASSUMPTION ON THE PART OF THE FACTOR OF THE RISK OF DEBTOR'S
OMITTED PAYMENT
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ARTICLE 11 - GRANT, LIMITS AND EFFECTS OF THE FACTOR'S ASSUMPTION OF RISK
Any Supplier willing to request the Factor to assume the risk of the
omitted payment for a certain Debtor shall submit said application containing
the terms and conditions set by the Factor. The Factor shall notify the Supplier
in writing of its decisions, specifying, in case of acceptance, the maximum
amount for each debtor (lending ceiling) within whose limits the granted
guarantee shall be effective and the relevant additional conditions.
Within the limits of the granted ceiling the Factor shall undertake the risk of
the omitted payment of the capital amount of same receivables, without prejudice
to the provisions of art. 14 below, the following being therefore expressly
excluded:
- any other amount due by the Debtor by way of compensation, penalty, backward
payment interest, etc.;
- any rounding-off, discount, reduction, abatement, etc. which the Debtor makes
upon payment, even though unauthorized, as reduction of the amount appearing in
the invoice;
- any difference, if any, depending on exchange fluctuations or change in the
parity ratio between currencies;
- any receivables not meeting the requirements under art. 12 below.
The following cases in which the omitted payment is due to the occurrence
of causes of force majeure are also expressly excluded from the assumption of
risk by the Factor: state of war, whether declared or not declared, hostilities
and their consequences, revolutions, riots, total or partial rebellions,
particular and general moratoria, natural catastrophes as well as explosions or
radioactive contaminations.
Unless otherwise agreed upon, the assumption of risk in respect of each
Debtor shall entail the Supplier's unbreakable obligation to assign without
distinction all receivables it shall have towards same starting from the date of
validity of the granted ceiling.
The receivables which upon assignment wholly or partly exceed the amount of
the granted ceiling shall be deemed as accepted upon assignment without any
assumption of risk by the Factor, save for the provisions under art. 12 below in
respect of the revolving of the ceiling.
ARTICLE 12 - LENDING CEILING CHARACTERISTICS
The assumption on the part of the Factor of the risk of omitted payment of
the assigned receivables shall be effective from the date of the notification
containing the Factor's reply or from the different date expressly indicated
therein and shall be valid and binding, within the limits of the ceiling, for
the receivables meeting the following requirements:
- the supplies and/or the performance of services and relevant invoices shall be
respectively carried out and issued on a date corresponding to or following the
starting date of the ceiling;
- the terms of payment as appearing in the invoices shall be equal to or lower
than those indicated by the Factor in the notification of assumption of risk;
- the conditions of payment shall be at a risk equal to or lower than those
indicated by the Factor, considering the following decreasing order of risk:
direct remittance, cash order, simple or authorized draft, assignment of
portfolio, accepted draft or promissory note.
The lending ceiling related to the Debtor shall have a revolving character,
so that each payment of receivables owed by the same and guaranteed by the
Factor shall determine a corresponding availability, within the limits of which
the receivables which wholly or partly exceed the ceiling, if all of the
requirements
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set forth are met, shall automatically be included in it according to the date
of issue and invoice number starting from the oldest one.
ARTICLE 13 - LENDING CEILING REVOCATION AND REDUCTION
The Factor shall at any time have the right to modify or revoke, with no
obligation of giving reasons, the granted lending ceilings by notifying the
Supplier thereof in writing by means of any eligible means, including telex or
telefax, having effect upon the latter's receipt of notification.
The revocation of the guarantee undertaken by the Factor shall entail the
automatic suspension of the revolving character of the ceiling. However, the
revocation of a ceiling partly or wholly unused shall not bar that receivables
are secured up to a total amount equal to the sum unused at the date of effect
of the measure, provided that such receivables meet the requirements specified
under art. 12 above and that the relevant invoices bear an issue date which is
earlier than the date of effect of same measure and refer to goods delivered or
performances rendered as of the same date. Therefore, the receivables towards
the debtor which upon revocation exceed the ceiling or for which the conditions
to be included in it are not met shall be deemed as definitely unsecured by the
Factor.
In case of revocation of a lending ceiling, the Supplier shall be obliged to
assign to the Factor the receivables deriving from the supplies performed in
favor of the Debtor after the revocation and shall not amend to the Factor's
detriment the terms and conditions of payment in respect of those provided for
with respect to secured receivables, until the Debtor has paid in full the
resulting receivables secured on the date of revocation. Failing that, the
lending ceiling shall be deemed to have never been granted and receivables shall
be deemed as unsecured.
All payments made by the Debtor and/or by third parties after the revocation
of a lending ceiling, as well as credit notes, if any, issued by the Supplier
shall be ascribed, for the purposes of the interrelations between Supplier and
Factor only, with priority to existing secured receivables.
In case of lending ceiling reduction, the revolving receivable shall have
effect to the extent of the lesser amount only after the secured receivables
exceeding the new limit have been entirely paid.
ARTICLE 14 - RE-ASSUMPTION OF RISK OF THE SUPPLIER
The risk assumed by the Factor by waiving the guarantee of the solvency
granted by the Supplier may be reassumed by the same upon the occurrence of the
following events and regardless of when these events occur:
a) the ceiling of the receivable given in respect of a certain Debtor shall be
deemed to have never been granted if the Supplier does not fulfil its obligation
to assign all the receivables towards the same Debtor or is in breach of the
obligations indicated in the section "Obligations of the Supplier" and the
effects of the waiver of the guarantee of the solvency under art. 10 above
relating to all the outstanding receivables shall be deemed with no effect
accordingly;
b) the assumption of the risk of the failure to pay each single receivable shall
be deemed as without effect if the guarantees of the Supplier indicated under
art. 3 (section "Regulation of assignment") are not abided by, as well as in the
case of breach of the Supplier's obligations hereunder or upon occurrence of any
other event to which said consequence is explicitly related hereunder.
If the Debtor accounts for the omitted payment giving one of the following
reasons:
- contractual breaches of the Supplier;
- complaints about supplies;
- off-setting of receivables claimed against the Supplier;
the security relating to the objected receivables shall be suspended and the
Supplier shall reach an amicable settlement of the dispute with the Debtor
within 60 days from the date it became aware of the claims of the Debtor; if
such amicable settlement is not reached, the Supplier shall repurchase the
abovesaid receivables
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for the purposes of the legal protection of its claims upon repayment to the
Factor of the amounts received in advance increased by the interest accrued
until payback day.
In all the aforesaid cases of ineffectiveness and stay of the guarantee
undertaken by the Factor, the provisions of art. 9 above in respect of the
repayment by the Supplier of the amounts received in advance shall apply.
ARTICLE 15 - CONSIDERATION OF THE ASSIGNMENT OF RECEIVABLES
The consideration for the assigned receivables, as defined under art. 4 above,
shall be due by the Factor to the Supplier upon the actual collection of each
receivable or - with limitation to the amount of the receivables for which the
Factor has waived the guarantee to the solvency issued by the Supplier, namely
the receivables meeting the requirements under art. 12 above, within the limits
of the ceiling allowed on the Debtor - after 120 days of the expiry thereof;
this shall not bear prejudice to the right of the Factor to make the payment
thereof in advance, as set forth in the section "Performances and obligations of
the Factor" above.
SECTION V - GENERAL PROVISIONS
ARTICLE 16 - RECORDING
All credit and debit entries arising out of the factoring agreement
shall be entered by the Factor in one or more accounts, divided into detail
accounts, if required.
With reference to the provisions of art. 4, the amount of the
consideration shall be credited to the Supplier upon acceptance of the
assignment by Factor, but shall be obtainable only after the collection of same
receivables or, in case of assignment of receivables with waiver of guarantee by
the Factor, within the term provided for by art. 15.
Payments in advance, if any, of parts of the consideration, requested
by the Supplier and granted by the Factor, shall be debited to the Supplier upon
the issuance thereof and shall accrue interest, to the extent and in accordance
with the terms and conditions agreed upon and executed elsewhere.
The Factor shall periodically send to the Supplier the statements of
account, and shall also record and enter the interest accrued on the
considerations paid in advance. Such statements of account shall be deemed to
have been approved by the Supplier which does not raise specific objections
notifying the Factor thereof by means of registered letter within 60 days from
the receipt of the above documents. Any other accounting documents, if any, sent
by the Factor to the Supplier shall be automatically deemed to have been
approved by the latter unless specific objections thereto are raised within the
abovementioned term. The accounting books and records of the Factor to which no
objections were raised within the abovementioned term shall constitute full
evidence to the Supplier.
ARTICLE 17 - VOLUNTARY SET-OFF
The Factor shall be entitled to retain sums and off-set its debts on
whatever basis towards the Supplier against its receivables claimed from the
same on whatever basis, even though not ready and collectable yet. Said
receivables shall comprise the consideration under art. 1 last paragraph, as
well as the receivables still not overdue which were assigned to the Factor by
third parties or the receivables however secured by the Factor in favor of third
parties.
ARTICLE 18 -TRANSPARENCY
The Factor shall retain the right to amend the amount of the
considerations under art. 1, the interest rates and any other economical
condition applied to the factoring agreement, complying, in the case of
amendments having an adverse effect on the client, with the statutory provisions
on the matter.
ARTICLE 19 - DURATION - WITHDRAWAL
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This agreement shall have an unlimited duration; the parties hereto
shall be entitled to withdraw from the agreement notifying thereof the other
party in writing by means of registered letter, without any obligation to give
reasons nor prior notice.
ARTICLE 20 - TERMINATION
This agreement may be terminated both by the Factor and the Supplier
pursuant to art. 1453 of the Italian Civil Code.
The Factor may also terminate the agreement pursuant to art. 1456 of
the Italian Civil Code, notifying thereof the other party in writing by means of
registered letter in case of breach any of the obligations provided for by
articles 5, 6, 7, 9 hereof.
ARTICLE 21 - EFFECTS OF TERMINATION
The termination of the agreement shall not affect the validity and
effectiveness of the assignment of receivables already performed, which shall
continue to be governed by this agreement and for which all obligations
undertaken and the additional guarantees granted by the Supplier shall be valid.
In the case of termination, and unless otherwise agreed upon, the
parties shall terminate the agreement within 15 days of receipt of the notice of
termination by the other party or of the occurrence of the termination effect.
Within the same term and without need for it to be put in arrears, the Supplier
shall be obliged to pay back to the Factor the considerations possibly received
in advance against the assigned receivables not collected yet, besides the
conventional interest accrued until the date of payback and expenses. In the
case of delay in complying with the payback obligation, interest on arrears
shall accrue in the amount specified in the "Special Conditions" executed
elsewhere shall accrue and in any event the Factor may start legal actions
against both the Supplier and the Debtors to recover any sums due, with the
right to enter into settlements with the Debtor, and the Supplier shall waive to
raise objections thereto and to undertake any other action useful and
appropriate to that end. After the payback, the Supplier shall be entitled to
obtain from the Factor the transfer of the receivables not collected yet, save
for the receivables from debtors for which the Factor has assumed the risk for
omitted payment.
ARTICLE 22 - REGISTRATION FEES
The expenses for the registration, if any, of this agreement and of the
subsequent assignments of receivables shall be exclusively borne by the
Supplier.
ARTICLE 23 - JURISDICTION
The Court of Milan shall have exclusive jurisdiction upon any dispute
on the validity, construction and performance of this agreement and the
subsequent assignments of receivables.
Nevertheless the Factor shall be expressly given the power, as
plaintiff either in legal action or injunction, to submit the dispute to the
Court of the place where the registered office of either the assignor or its
assigned debtor is located.
THE ASSIGNOR THE FACTOR
(Stamp and Signature) (Stamp and Signature)
--------------------------------------------------------------------------------
Pursuant to arts. 1341 and 1342 of the Italian Civil Code, the Supplier declares
it shall specifically approve the following clauses:
- art. 3 subp. f): granting of the guarantee of the solvency of the
Debtor;
- art. 5: Notice;
- art. 6: Debtors;
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- art. 7: Co-operation;
- art. 9: Advance payment of the consideration and departure from art.
1267 paragraph 2 of the Italian Civil Code;
- art. 17: Voluntary set-off;
- art. 18: Alteration of the economical conditions of the assignment;
- art. 19: Withdrawal:
- art. 20: Termination;
- art. 21: Effects of dissolution;
- art. 22: Registration;
- art. 23: Jurisdiction.
- art. 14: Re-assumption of the risk of the Supplier.
THE ASSIGNOR
(Stamp and Signature)
Date: June 28, 1999
[XXXXXXX XXXXXXXXXX]
COMIT FACTORING S.P.A
Vai X. Xxxxxx 50/5
20151 MILANO
Bastia Umbra, June 28, 1999
PROVISIONS CONCERNING NON RECOURSE FACTORING TRANSACTION (PRO SOLUTO)
We refer to the "General Conditions for future Factoring transactions " executed
with you on June 28, 1999 and in order to specify the following:
1. We hereby explicitly request that the assigned debtors are not notified of
the occurrence of the assignment of receivables we will perform in
pursuance of our agreements without prejudice of the validity and
effectiveness of same assignment; therefore it is our firm and determined
undertaking to pay back indiscriminately all the sums which we will
however given by the debtors as payment of receivables assigned to You.
You shall however be entitled to notify the debtors of occurrence of the
assignment and of whatever is necessary to better protect Your
receivables.
2. The notice concerning the assigned receivables shall be given by means of
a letter from us and relevant enclosures. Any probative documents of the
receivable, if any, shall be sent to You by Your simple request.
3. We shall be fully and completely in charge of the managing and collecting
of such receivables and we will be fully responsible in connection
thereof. For this purpose You shall grant us the power to collect the
receivables assigned in Your favor, so that we will be lawfully authorized
to receipt in our name and on Your behalf. We shall undertake to collect
same credits in the interest and on behalf of Your Company and to pay back
to You the amount with the currency applicable as of the above collection.
4. You shall not pay to us any consideration for the performance of the
above-mentioned mandate. Any expenses and burdens, if any, shall be
exclusively borne by us.
5. In case of omitted payment of any receivable assigned to You, we shall
notify you of such event within 60 days after the maturity of such
receivable, contemporaneously sending to you all relevant probative
documentation (invoice, notes, etc.) in order to allow you to start the
actions provided for by the following paragraph. In the event that within
the above mentioned term we have not sent to You the above mentioned
documentation we shall recover the receivable and pay back possible
advance upon your simple written request and withdrawing from now any
objection.
6. After the date indicated under 5) and the shipment of the relevant
documentation, you will be free to notify the occurrence of the assignment
and to start towards the debtors in default all the action which You will
deem appropriate for the recover of the assigned receivables.
7. You will calculated a commission on the amount of assigned receivables to
the extent and in accordance with the term provided for by Enclosure A)
which shall constitute integral and material part of this agreement.
8. The payment of the consideration of the assignment shall be made by You
within 150 days from the maturity date of the invoice. However, with
respect to the article 9 of the "General Conditions for future Factoring
transactions" you shall pay in advance, upon our request, the amount of
100% of assigned receivables issuing the relevant debit notes for interest
calculated on postponement basis at the rate provided for by Enclosure A).
9. Xxxxxxx S.p.A. (assignor) shall guarantee:
o that the assigned receivables are ascertained, cash and collectable
at expiry date;
o that the amount of the assigned receivables is unquestionably due by
the Debtor as consideration for the goods which were actually
supplied or the services actually performed on the basis of
agreement strictly and accurately complied;
o that it is the only legal and exclusive holder of the assigned
receivables, which are lawfully transferable, not subjected to
attachment, garnishment, nor any other liens in favor of third
parties;
o that at the assignment, the debtors shall have no receivables which
may be ascribed as off-setting, even though partially, and that the
goods or services under the agreements entered into by Xxxxxxx
S.p.A. and the debtor shall not be pledged or subject to liens or
other charges in favor of third parties.
10. This assignment shall be deemed lawfully terminated and without any effect
and therefore, upon Your simple request, we undertake to recover the
credits and to pay back possible advance, if one of the events hereinbleow
indicated shall occur:
o in the event that the assigned receivables will be objected by the
debtors and/or by third parties with respect to their existence,
liquidity, expiration and assignability;
o in the event that any creditor has started or will start a legal
actions on the assigned receivables in order to satisfy its claims
to such receivables.
Best regards.
XXXXXXX S.p.A.
The Chairman
[stamp and signature]
Enclosure A)
ECONOMIC CONDITIONS:
Interest rate: daily average of EURIBOR rate 1 month
plus 0,50% Determination for days date -
with postponed quarterly capitalization
Charges of registration of agreement: ITL. 250,000 =
Account expenses: ITL. 35,000 (quarterly)
Factoring Commissions: 0,40% except for amendments to be collected "una tantum",
in advance on the amount of assigned receivables. At the end of transaction and
in any case not later than December 31, 1999 the commissions charged with
respect to the amount of the payments "in guarantee" made by Your Company shall
be reviewed (payments "in guarantee" shall be deemed the payments made by same
Factor in relation with the receivables not paid by the debtors for which the
Factor assumed the risk connected to the omitted payment).
In particular the percentage incidence of the payment "in guarantee" made by
Your Company with respect to the amount of assigned receivables shall be
determined, consequently computing an additional commission - equal to such
incidence - to be calculated on the amount of assigned receivables. It is
understood that the additional commissions charged by You at the moment of the
adjustment may not in any case exceed the 10.4% of the turnover achieved by our
Company in the year preceding the transaction (ITL. 266,9 billion). The payment
of the above mentioned commissions shall be made with currency applicable as of
the end of transaction and therefore on December 31, 1999.
- Currency days:
on credit transfer 1 working day
on receipts 1 working day
- Recover of mail expenses and stamps
XXXXXXX S.p.A.
The Chairman
[stamp and signature]
[COMIT LETTERHEAD]
XXXXXXX S.P.A.
The Chairman
XXXXXXX X.X.X.
Via IV Novembre 2/4
06083 Bastia Umbra (PG)
Xxxxx, September 17, 1999
In copying the text of Your letter dated September 3, 1999 by way of
acceptance, we point out that the percentage of additional commissions may not
exceed the 15% - and not the 10% as You indicated - of the amount of assigned
receivables.
COMIT FACTORING S.P.A.
Via X. Xxxxxx, 50/5
20151 Milano
Bastia Umbra, September 3, 1999
We refer to the "Provisions concerning non recourse factoring transaction" (pro
soluto) dated June 28, 1999 by and between yourself and ourself in order to
propose You the following amendments:
art. 5 - In case of omitted payment of any receivable assigned to You, we shall
notify You of such event within the 90 days after the maturity of such
receivable, contemporaneously sending to You all relevant probative
documentation (invoice, notes, etc.) in order to allow you to start the actions
provided for by the following paragraph. In the event that within the above
mentioned term we have not sent to You the above mentioned documentation we
shall recover the receivable and pay back the paid price upon your simple
written request and removing from now any objection related thereto.
art. 8 - The price of assignment shall be equal to the nominal value of the
assigned credits net of interest which shall be calculated on postponement
basis, at the rate provided for by enclosure A, from the amount due at the date
of payment of price until the date of collection and in any way not later than
150 days from the expiry date of invoices.
Enclosure A)
Economic Conditions:
Factoring Commissions: 0,40% "except for amendments" to be collected "una
tantum" , in advanced on the amount of assigned receivables. At the end of
transaction and in any case not later than February 28, 2000 the commissions
charged with respect to the amount of payments "in guarantee" made by Your
Company shall be reviewed (payments "in guaranteed" shall be deemed the payments
made by same factor in relation to the receivables not paid by the debtors for
which same factor assumed the risk connected to the omitted payment) carried out
by Your Company. In particular the percentage incidence of the payment "in
guarantee" made by Your Company with respect to the amount of assigned
receivables shall be determined, consequently computing an additional commission
- equal to such incidence - to be calculated on the amount of assigned
receivables. It is understood that the additional commissions charged by You at
the moment of adjustment could not in any case exceed the 15% of the amount of
assigned receivables. The payment of the above mentioned commissions shall be
made with currency applicable as of the end of transaction and in any case not
later than February 28, 2000.
Please copy the text of this letter as acceptance.
XXXXXXX S.p.A.
The Chairman
[stamp and signature]
Best regards.
COMIT FACTORING S.p.A.
[stamp and signature]
