by and between: (hereinafter called Client ) and Coface Finanz GmbH (hereinafter called Factor )

Transcription

1 COFACE FINANZ GMBH ISAAC-FULDA-ALLEE MAINZ POSTFACH MAINZ T. +49 (0) / F. +49 (0) / Factoring contract No. by and between: (hereinafter called Client ) and Coface Finanz GmbH (hereinafter called Factor )

2 1. Basis of Agreement According to the requirements of this contract, the Factor purchases the receivables held by the Client against its customers and thus undertakes the risk of the customers inability to pay. Furthermore, it relieves the Client from the credit management including dunning and debt collection irrespective of whether or not such receivables have been purchased. Assignment of the purchased Client s receivables against the customers does not occur for the purpose of securing the granting of a credit. The receivables shall finally remain with the Factor as consideration for the purchase price paid for them to the Client by the Factor. The Client s claims against the Factor and the payments flowing there from do not serve as security for credits granted by third parties to the Client but shall be freely available to the Client so that it can preferentially use them to fulfil its commitments to the suppliers, by making use of the advantages associated with immediate payment. The Factor s decision to purchase the receivables is fundamentally dependent on the information made available by the Client about the receivables and the customers. The accuracy and reliability of these details is therefore of crucial importance. The Factoring contract establishes a special long-term mutual fiduciary relationship. 2. offer of receivables for purchase, obligation to tender, keeping of invoice copies 2.1. The Client must offer to the Factor for purchase all existing and future trade receivables against all of its customers (obligation to tender) The obligation to tender shall apply only to receivables which meet the following conditions (together with the requirements pursuant to Clause 3.3. hereinafter referred to as the "purchasing requirements ): a) the customer has obtained the original invoice and the supplies and services the invoice is based upon have been fully and duly (i.e. in compliance with the contract) performed by the Client. b) the receivable is not due from an affiliated company. On presentation of its offer, the Client warrants that all purchasing requirements pursuant to paragraphs a) and b) above as well as pursuant to Clause 3.3. have been fulfilled Tender by the Client requires the transmission of all essential invoice details. Those include, in particular, the customer s full name and address (recipient of the invoice), basis of the claim, invoice amount and due date of the receivable The Client is obliged to transmit to the Factor all receivables subject to the obligation to tender irrespective of the purchase of the latter The data pursuant to Clause 2.3. will be transmitted by means of electronic data transmission. The Client is obliged to provide the data pursuant to Clause 2.3. to the Factor or a third party nominated by the Factor. The data must correspond to the interface descriptions communicated to the Client separately. The Client is exclusively liable for the accuracy and completeness of the data. It exempts the Factor from all claims by third parties The Client keeps the original invoices of all and any receivables assigned, acting as trustee for the Factor, for the duration of the statutory period of record keeping, however, for no less than ten years from completion of the calendar year in which the invoice was issued. It undertakes to provide the Factor with the above invoices or copies of the invoices, without delay and free of charge at any time upon request of the Factor. 3. acceptance 3.1. The purchase contract concerning the individual receivable comes into existence upon the Factor s acceptance of the offer. Acceptance is declared by booking the receivables amount into the factoring account of the Client (internal settlement account of the Factor, into which all purchased receivables are booked). In accordance with Section 151 BGB the Client waives its right to receive statements of acceptance The Factor undertakes to inform the Client on an ongoing basis of the bookings of the receivables The Factor is obliged to purchase every receivable as soon as it fulfils the following conditions (together with the conditions pursuant to 2.2., referred to as the purchasing requirements ), in the order of their invoice dates, the longest standing receivables are to be purchased before more recent ones. (If several receivables have equal rank, the Factor selects according to its due discretion). a) The receivable is within the limit defined for the individual customer taking into account the receivables already purchased. Where receivables are only partially covered by the limit, acceptance applies to the part of the receivable covered by the limit. b) The receivable exists as described in the invoice data transmitted, is not tainted with pleas or defences, not encumbered with third party rights, assignable and in particular has not been assigned as part of a global security assignment to a third party, such as a bank, and is not excluded from assignment under a current account agreement between the Client and its customer. c) The receivable is subject to a credit period of a maximum of 90 days from the date of the invoice. d) The receivable was not invoiced later than 5 days after delivery/performance. e) The invoice data do not reach the Factor later than within 14 days from the date of the invoice. f) At the time of purchase the receivable is not more than 90 days older than the invoice date and has not been overdue for more than 10 days. g) The receivable has arisen from the Client s usual course of business. h) The receivable is not owed by a private individual who does not carry on a trade or business. i) the receivable is governed by German law. j) The receivable is owed by a customer having its registered office in a country stated in the country list. k) The receivable complies with the requirements laid down in Clause 2.2. of this present contract. The contracting parties may stipulate further purchasing requirements in the Cooperation letter The Factor is also entitled to purchase receivables which do not comply with the purchase requirements. The Factor becomes obliged to purchase if a receivable which initially did not comply with the purchasing requirements subsequently does (move-up procedure). Where several receivables are offered for purchase, the purchase occurs in the order of their invoice dates; the longest standing receivables are to be purchased before more recent ones. If several receivables have equal rank, the Factor selects according to its due discretion. If a limit is reduced, the obligation to purchase does not accrue until the reduced limit is no longer fully utilised after the payment of longer standing receivables.

3 3.5. Receivables owed by customers, whose receivables are subject to debt collection are excluded from purchase until further notice by the Factor. Upon conclusion of the debt collection procedure the Factor is once again obliged to purchase provided that all due receivables owed by the customer are paid and the other purchasing requirements are fulfilled The Factor s obligation to purchase is void if the Factor has reason to believe that the Client has failed to fulfil its obligations towards its upstream suppliers, or if it comes to the Factor s knowledge that an upstream supplier has either revoked or restricted the Client s direct debiting authorisation Receivables which are offered to the Factor and which it declines to purchase are booked into a special account of the Client (internal settlement account of the Factor, which any receivables not purchased or tainted with defences are booked into). These receivables remain on offer for purchase to the Factor at any time. However, the Client may request in writing that the Factor shall accept an offer regarding particular receivables within ten days of receiving the request. In this case the Factor is not obliged to purchase. If it decides to purchase, acceptance must be declared by giving notice of entry in the factoring account. If the time limit expires and if no acceptance is declared, the tender lapses. This has no effect on the assignment as security pursuant to purchase price 4.1. The Factor is obliged to pay the agreed purchase price. The purchase price is equivalent to the amount of the purchased receivable, to the extent the receivable actually exists (i.e. less bonuses, prompt payment discounts, justified deductions by the customer). The Factor is entitled to deduct from the payable purchase price the agreed fees, in particular the factoring fee, as well as the interest charged for the part of the purchase price paid to the Client The purchase price shall be reduced by the amounts the customer is obliged to retain or pay by law and, in particular, under taxation law. The Factor may pay the sales tax contained in the purchased receivables either to the Client or to the revenue office, even prior to the establishment of the statutory liability. In so far as the Factor makes payments for the Client to the revenue office responsible for the Client in order to avoid liability under Section 13 c UstG (German Turnover Tax Act), the Client s claim for payment of the purchase price against the Factor lapses, or as far as the purchase price has already been paid by the Factor to the Client at the date of the revenue office s demand the Factor is entitled to be adequately reimbursed by the Client. Such payments may also affect the sales tax on other receivables if these have been assigned to the Factor under this contract Receivables stated in foreign currencies are converted into Euro using the applicable bank selling rate, unless a transfer in the foreign currency has been agreed The purchase price less the purchase price retention (Clause 8) is due for payment after settlement. The settlement procedure is governed by the Cooperation letter. The purchase price retention is due for payment once the customer has paid the purchased receivable to the Factor or the del credere event has occurred If the Factor has purchased receivables the amount of which exceeds the aggregate maximum amount, with the effect that, in particular, the aggregate amount of the payable purchase portions would exceed the aggregate maximum amount (Clause 7.5.) the following shall apply: Purchase prices for receivables the payment of which exceeds the aggregate maximum amount shall become due for payment as soon as the saturation of the aggregate maximum amount (Clause 7.5.) falls below 100 %. The amount of the purchase prices due for payment corresponds to the respective difference between the aggregate maximum amount and its saturation. Payment of the purchase prices for receivables purchased initially exceeding the aggregate maximum amount is made in the order of their invoice dates; the longest standing receivables are to be purchased before the more recent ones. If several receivables have the same invoice dates, the Factor selects at its own discretion which receivables it pays. 5. Client s verity guarantee 5.1. Irrespective of intent or negligence, the Client guarantees, a) that the receivables sold to the Factor including all ancillary rights exist, in accordance with the invoice data transmitted, b) that the receivables which have been sold to the Factor are free from defects, pleas and defences and not encumbered with third party rights, c) that the receivables sold to the Factor, until satisfaction, will not retrospectively be altered or affected in their legal nature, and in particular not affected by pleas, defences or rights of retention of the customer, e.g. compensation, set-off, contestation, reduction or rescission by the customer, damages, subsequent performance or remedy, d) that the purchased receivables can be assigned, that the Client is entitled to assignment and, in particular, that assignability in respect thereof is not excluded due to global assignments or a transfer by way of security with followup assignment to a bank or a third party, or due to a current account agreement between the Client and the customer, e) that the Client is entitled to assign the purchased receivables to the Factor. This relates particularly to those situations where the purchased receivables have been assigned to the upstream supplier as part of a retention of title, and f) that the purchased receivables are not subject to third party liability claims, in particular, according to Section 13 c UstG. If the Client has concluded its own insurance contract, the guarantee also includes the Client s fulfilment of all its contractual duties and obligations vis-à-vis the Insurer that arise from the domestic credit insurance contract covering the receivables (here, in particular, the notification of overdue accounts and the timely premium payment) and that are necessary for the maintenance of the insurance cover. In addition, the guarantee includes and ensures that the credit insurance cover or the claim to indemnification payment is not altered by subsequent agreements between the Client and the credit insurer If a guarantee case occurs (Clause 5.1.) the Client shall, by payment of an appropriate amount, put the Factor in the position that it would be in if the guarantee had applied. Instead, the Factor may arrange to have the objection or defence to the claim itself eliminated if without success it has given due prior notice to the Client, set a time limit and warned of the exercise of this right - in particular it may have appropriate rectification work performed and require reimbursement of costs by the Client. Furthermore, the Client shall bear the cost arising to the Factor due to the customer rightfully challenging its obligation to pay. Furthermore, the Factor s statutory warranty rights remain unaffected. 6. risk of a customer s insolvency ( the del credere case ) 6.1. The Factor assumes the risk of the customer s inability to pay for the receivables purchased subject to the conditions of this contract.

4 6.2. The customer s insolvency may be presumed if the customer fails to pay the invoice within 120 days after it becomes due. The presumption does not apply if the customer contests its payment obligation either within or outside the stipulated time period. In this case the actual value of the receivable must be determined first. 7. limit, aggregate maximum amount 7.1. The Client is obliged to apply for a credit limit for all of its customers. If in the course of the cooperation the existing limit is exceeded due to the submission of further invoices, the Client shall be obliged to apply for an increase of the limit. The Factor sets the limits for the individual customer at its own discretion, taking particular account of credit standing and reliability. Subject to the same conditions it is entitled to subsequent alterations or cancellations of limits at any time. The Factor communicates limit decisions and their amendments to the Client without delay. The limit is the maximum amount up to which the Factor will purchase from the Client receivables relating to one and the same customer In addition, the Factor is entitled to retrospectively cancel, at its discretion, limits for receivables due from its customers in a country, in particular in case of negative changes in the Coface country rating. The Client will be notified in writing of a cancellation of limits relating to individual countries. Upon receipt of such notification all limits for customers domiciled in this country shall be deemed cancelled, without any individual customer-related credit limit notice being required. This also applies to the limits granted by the Client itself under the discretionary limit facility Alterations or cancellations of limits do not apply to receivables already purchased and to receivables for which the Client rendered the consideration prior to receipt of notification of the amendment in good faith, relying on the granted limit When calculating the extent to which a limit has been saturated, all the unpaid receivables due from a customer and purchased by the Factor are summed up (Credit items, e.g. credit entries or payments on account are included in the saturation until their clarification). Receivables, the payment of which is made by bills of exchange which have been sent for discounting, will be included in the calculation until and to the extent that the bills of exchange have been redeemed Using its due judgement, and on the basis of the Client s financial figures, the Factor determines the aggregate maximum amount agreed in the Cooperation letter. Using its due judgement and, in particular taking into account the Client s financial figures, the Factor is entitled at any time to subsequently alter and cancel the aggregate maximum amount applicable in the future. The aggregate maximum amount is the maximum amount up to which the Factor pays the purchase price to the Client less the purchase price retention with respect to all customers When calculating the saturation of the aggregate maximum amount the entire purchase price portions (relating to all customers), which are paid out to the Client, are summed up. Saturation is increased by adding to the paid out purchase price portions the interests and fees payable by the Client as well as purchase prices to be reimbursed by the Client due to guarantee cases. Saturation is reduced by customers payments on receivables, and the Factor gaining sole power of disposal of receivables amounts paid by the customers, or by the del credere event occurring for purchased receivables. 8. purchase price retention, adjustment of the purchase price retention 8.1. The Factor retains a portion of the purchase price as a blocked amount ( purchase price retention ). The amount of the purchase price retention is stipulated in the Cooperation letter The purchase price retention shall serve the purpose of providing the Factor with a guarantee for any existing or future claims that may arise against the Client from the business relationship, and in particular, under the Client s verity guarantee (Clause 5) The Factor shall be entitled to adjust the purchase price retention agreed in the Cooperation letter, in particular, a) if it is to be expected that the retention in force up to that time is insufficient to cover the average claims of the Factor against the Client arising from the business relationship; b) if circumstances affecting the value of the receivables come to the Factor s knowledge; c) if doubts arise as to whether the retention currently in force will in future be sufficient to cover the legitimate reductions in the receivables by the customer or by means of credit notes granted by the Client or as to whether it still is sufficient at the present date; d) if the Factor incurs new or extended statutory liability; e) in case of negative changes in the Client s credit standing or of the securities provided by the latter. The Factor is entitled to make adjustments to the purchase price retention of both the receivables to be purchased by the Factor in the future and retrospectively for the receivables already purchased but not yet fully paid. Suitable adjustments to the purchase price retention are made to the extent that the Factor wants to create a security For the sales tax contained in the purchased receivables, the Factor is entitled to a separate retention in the amount of the sales tax or to increase the existing retention accordingly The Factor shall notify the Client on any adjustments in writing. 9. Collection of nonpurchased receivables 9.1. For the term of the contract the Client authorises the Factor to collect the nonpurchased receivables in its own name The Factor will forward the collected payments to the Client. For justified reasons, the Factor may retain part of the payment; the provisions of Clause 8 shall apply mutatis mutandis. 10. Receivables accounting The Factor carries out the entire receivables accounting in accordance with the relevant commercial law and tax law regulations and based on the invoice data received. The accounting records are made available by the Factor to the Client in writing or via the Client s option to connect to the Factor s data processing system. Henceforth, the Client shall keep documents or data received from the Factor on its own responsibility. 11. assignment of purchased receivables including ancillary rights, assignment for security of non-purchased receivables The Client hereby assigns to the Factor all existing and future claims against its customers arising from supplies and services subject to the condition precedent of purchase of the respective receivable by

5 the Factor. The Factor hereby accepts this assignment. Hence, upon acceptance of the tender, the Factor also becomes the owner of the purchased receivable. If only part of a receivable is purchased, then only this part will be assigned. The assignment of the receivable includes all claims for payment on account of performance (erfüllungshalber) against companies which make payments on behalf of, in addition to or instead of the customer, in particular, central clearing institutions or other clearing institutions. The Factor hereby accepts this assignment The client hereby assigns all receivables as security for all existing, future and conditional claims which the Factor and all its domestic and foreign offices holds against the Client arising from the business relationship between the Factor and the Client. This assignment applies to all receivables, whether or not they are tendered to or purchased by the Factor. The Factor hereby accepts this assignment All and any receivables which the Client has assigned or will assign to its suppliers in the context of the extended reservation of title (in rem partial waiver Clause) are excepted from the assignment under Clause To the extent that the Client has authority to do so, it authorises the Factor to collect these unassigned receivables in its own name for a third party account If the extended retention of title of a receivable falling under Clause subsequently lapses, the receivable shall be deemed assigned according to Clause at this point in time, provided that it is booked in the special account of the Client (assignment of receivables pursuant to Clause subject to the condition precedent of the lapse of the extended reservation of title) If the Factor subsequently purchases a receivable under Clause 3.4. the assignment pursuant to Clause shall apply from the date of the purchase If, under the law applicable to the receivable to be assigned, an assignment in advance is ineffective, the Client undertakes to assign such receivable to the Factor immediately after such receivable comes into existence. Transmission of the principal invoice data relating to the receivable (Clause 2.3.) shall, at the same time, be deemed an offer of assignment. The credit entry of the purchase price in the factoring account by the Factor shall be deemed acceptance of the assignment. 12. interests and fees, changes of conditions, interest deduction ceiling The Client is obliged to pay interests and fees. The interest amount is stipulated in the Cooperation letter The interests to be paid by the Client are calculated with respect to the part of the purchase price paid out to the Client for the period from the payment of the portion until its settlement or the exercise of the rights set out in Clause 5 in conjunction with Clause 3 of the General Terms and Conditions of Business for Factoring, at the very longest, however, until the date of the occurrence of the del credere event ( saturation ). The Factor is entitled to suitable adjustments of the agreed interest rate, applicable for future transactions, in case of changes in the contractual basis or of the economic situation. This particularly applies to changes in the Client s financial figures, e.g. the key figures of the financial statements and liquidity basis. In addition, the Factor may, at its discretion, adjust the agreed interest rate in order to respond to changes in the capital market. Payments received by the Factor are valued according to standard banking practice The factoring fee is charged for all receivables tendered to the Factor. It is agreed in the respective Cooperation letter. The basis of the calculation of the fee is the respective gross turnover of the submitted invoice amounts, reductions of proceeds (in particular, invoice cancellations, credit notes) shall not be considered. The Factor is entitled to suitable adjustments of the agreed fees, applicable to future transactions, in case of changes in the contractual basis. This shall particularly apply in the case of a change, e.g. of the average invoice amount and the number, average payment periods, reminder and credit rates, customer concentration, and also in the case of a change in the procedure originally selected for the cooperation For the term of the cooperation, the Client undertakes to treat the charged interest as interest expenditure for the purpose of Section 4 h EstG in the determination of the taxable income. Accordingly, the Client undertakes to execute the necessary declaration to the appropriate revenue office at the beginning of the cooperation and then annually and to provide the Factor with the confirmation given by the revenue office. If the Client fails to make the appropriate declaration, the Factor is entitled to recalculate and to increase the factoring fees as well as the interest to be paid on the basis of the fiscal disadvantages resulting for the Factor In so far as a debit balance in the Client s settlement account occurs, e.g. as a result of credit notes or the receivable being disputed by the customer after the purchase price has been paid, overdraft interest will be charged to the Client by way of a surcharge of 3.5 % on the interest rate agreed. 13. Commencement and end of contract, termination The contract shall take effect on the date agreed in the Cooperation letter; it shall be concluded for an initial period of one year The contract shall be subject to tacit renewal for further periods of one year, unless terminated on three months notice prior to the expiration date of the contract. Termination must be made in writing In case of changes in the Client's company structure, the Factor is entitled to terminate the contract with 1 months' notice from the date when the change came to the Factor's knowledge The agreement on discretionary limits may be terminated separately by both contractual parties within a notice period of 10 calendar days prior to the end of each month. The legal consequence of an extraordinary termination is the cessation of the right to define discretionary limits and the unchanged application of the remaining contractual provisions. The right to extraordinary termination for cause with immediate effect remains unaffected. 14. Further parts of the contract, changes to the contract In addition to this contract, the General Terms and Conditions of Business for Factoring the Cooperation letter including the related country list and the "Letter of acceptance" are an integral part of the contract. The provisions of the individual contractual parts shall apply in the following descending order: Letter of acceptance, Cooperation letter, Factoring Contract, General Terms and Conditions of Business for Factoring.

6 14.2. Amendments and supplements to the Factoring contract must be made in writing in order to be valid. This also applies to an amendment or cancellation of this writtenform Clause Notwithstanding Clause 14.2., the Factor is entitled to give the Client written notice of any changes made to this factoring contract. These are only deemed approved of if within a month after the respective receipts of the notices of the alteration, the Client has not objected in writing. For the observation of this period timely mailing of the objection is sufficient. When giving notice the Factor shall draw particular attention to the consequences resulting from a failure to object. 15. Severability Clause Should any provisions in this contract or its appendices be or become either wholly or in part ineffective, the validity of the remaining agreement remains unaffected. This shall in particular apply where the invalidity affects only individual receivables or parts thereof. The ineffective provision shall be replaced by the legally effective provision that comes closest to the intended economic purpose. Should any in rem transactions (assignment of receivables, expectant rights and transfers of ownership) be ineffective, the contracting parties, to the extent legally permissible, shall be obliged to treat such transactions internally as if they were effective. Further, they are obliged to perform the transaction in rem without delay, taking into account any requirements that may have been disregarded before. Last update: 1 December 2012 Place/Date Mainz, Company stamp Coface Finanz GmbH Signatures signatures CF /07-14 COFACE FINANZ GMBH ISAAC-FULDA-ALLEE MAINZ POSTFACH MAINZ T. +49 (0) / F. +49 (0) / AMTSGERICHT MAINZ HRB 5693 GESCHÄFTSFÜHRUNG: TÉVA PERREAU DR. THOMAS GÖTTING NORBERT LANGENBACH SITZ: MAINZ UNICREDIT BANK AG, MÜNCHEN BLZ NR IBAN: DE BIC: HYVE DE MM SPARKASSE MAINZ BLZ NR IBAN: DE BIC: MALA DE 51 MNZ COMMERZBANK AG, MAINZ BLZ NR IBAN: DE BIC: COBA DE FF