DATED June 30th 2009 DEBT PURCHASE AGREEMENT
Exhibit 10.4
DATED June
30th 2009
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(2)
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FAUNUS
GROUP INTERNATIONAL, INC.
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THIS DEBT PURCHASE AGREEMENT is made
the 30th day
of June 2009
BETWEEN:
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(1)
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AMERICAN BILTRITE INC. a
Delaware corporation whose registered
office is at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇,
acting through its Belgian branch located at Industriezone “▇▇▇▇▇
Frankrijk” 23, 9600 Ronse ("you", “your”, “yours” and “yourself”);
and
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(2)
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FAUNUS GROUP INTERNATIONAL,
INC. (D.B.A FGI FINANCE) a Delaware corporation, whose office is at
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ ("we", “us”, “our”, or “ours”);
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The
Clause headings used in this Agreement are for guidance only and are not
intended to affect its interpretation. A list of general definitions can be
found in Clause 24 of this Agreeement.
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1.
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Sale
and Purchase of Debts
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(a)
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This
Agreement will commence on Commencement and will continue until terminated
in accordance with its terms.
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(b)
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By
this Agreement, you will offer to sell to us and assign to us all
Debts:
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(i)
existing on Commencement; and
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(ii)
arising after the Commencement and during the term of this Agreement,
regardless of whether a Termination Event has
occurred.
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(c)
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Such
offer will be unconditional and made in writing in the form set out in
Schedule 1 (Schedule of
Accounts). If we accept such offer, we shall credit the notified
value of the Debts to the account specified in Clause 3 whereupon such
Debts become Approved Debts. As of such moment, the related Debts shall
have been sold and assigned to us, even if such Debts are not yet entered
in your books or records as due to
you.
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(d)
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You
will further deliver to us all Records or such other information and
original or copy documents proving the existence of such Debt, the
delivery of goods or the performance of your services in respect of the
Debts as we may request.
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(e)
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Should
any Debts (or any of the comprised ancillary or accessory rights) not come
into our ownership (whatever the reason may be) although purchased by us
you must account to us for such Debts (or related comprised ancillary or
accessory rights) when received and you will hold such Debts (or related
comprised ancillary or accessory rights) and the proceeds of the same on
our behalf absolutely, separately and exclusively for our
account. You will co-operate with us in the execution of any
necessary documents, deeds, instruments, policies, security, and any other
action necessary to perfect the assignment and transfer to
us or hold in our favour in relation to, any Debts (and/or any
related comprised ancillary or accessory rights), the proceeds of the same
or to put this Agreement into
effect.
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(f)
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You
will assign to us the benefit of any insurance policies relating to Debts
or any goods sold which give rise to any
Debts.
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(g)
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You
shall promptly upon the execution of this Agreement (and promptly after
you become entitled to a new Debt) notify the relevant Customer (with a
copy to us) of the sale, transfer and assignment of such Debt by serving
notice substantially in the form attached as Schedule 2 (Form of Customer Notification
Letter).
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(h)
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Should
we request, you will sign, pay stamp duty on and deliver to us a document
in a form that we approve legally assigning to us any Debt or Debts
together with the benefit of all guarantees given to you by your Customer
and other related securities and, if we ask, you will immediately give
written or other notice in a form and manner that we approve to any
Customer whose Debt has been assigned in this
way.
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(i)
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You
will print, stamp or otherwise ▇▇▇▇ each invoice with a notice of
assignment or sale of Debts shown on any invoice in a form which we shall
specify such notice to be printed on your invoices within three months
from the date of this Agreement and until such time we shall provide you
with an adequate supply of self adhesive labels bearing appropriate
notification language.
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(j)
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Should
we decide that we do not wish you to deliver credit notes to a specific
Customer, we will inform you of this in writing. After receipt
of such notification, you will not deliver any credit note direct to such
Customer.
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(k)
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If
your Customer becomes entitled to a credit or Customer discount in respect
of any Debt you will notify us promptly and send to us a copy of the
credit note in respect of the credited or discounted Debt with any other
documents and information which we may request. In addition you will repay
to us the amount of each credit note so that we are not out of
pocket.
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(l)
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You
may demand performance by us of our obligations hereunder and enforce
these obligations, but you waive the right to demand rescission of the
purchase of any Debt. You also waives any unpaid seller’s lien
that you may have under article 20, 5° of the Belgian Mortgage Act or
otherwise.
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(m)
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We
shall have full title and interest in and to the purchased Debt, shall be
free to further dispose of such purchased Debt, and shall upon receipt the
outstanding balance, be fully entitled to receive and retain for our own
account any collections in respect of such purchased Debt, without
prejudice subject to our obligations to pay you any balance still owed to
you in connection with the Purchase Price of such Debt in accordance with
Clause .
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(n)
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The purchase price for the Debts
purchased (‘Purchase
Price’) by us shall be calculated
as follows:
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(1) Gross
Invoice Value of
the offered Debts, as listed in the Schedule of Accounts, which we have accepted
to purchase;
(2) minus
the Discount applicable to such Debts.
We
shall only make an advance payment of the Purchase Price of the Debts purchased
by us in accordance with Clause 2 and 3. For the avoidance of doubt, any balance
shall only be payable upon collection of the related Debts and after deduction
of all Fees, disbursements, commissions, costs or other expenses, as provided in
this Agreement.
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(o)
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For
the avoidance of doubt, the parties confirm their intention that this
Agreement shall constitute:
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(1) a
sale and assignment of contractual rights in accordance with Article 1689 and
following of the Belgian Civil Code, and not by way of endorsement and delivery
of invoices under the Belgian Act of 5 October 1919; and
(2) a
true sale of the Debt, and not a security arrangement for any
obligations.
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2.
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Disapproval
and Re-Approval
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(a)
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We
may at any time deduct from amounts which we would otherwise be required
to send you, a sum equivalent to any Disapproved Debts previously
purchased by us.
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(b)
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We
shall (at our discretion) be allowed to sell any Disapproved Debts back to
you (in accordance with Clause 11 (Recourse)) or
re-approve them for the purposes of calculating amounts which you are
entitled to draw.
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(c)
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All
Disapproved Debts will continue to be owned by us until termination
hereunder or earlier re-assignment (in accordance with Clause 11 (Recourse)) and you will
forward to us forthwith any sums received by you in respect of any
Disapproved Debts.
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3.
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Advances of the Purchase Price to
you
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(a)
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For
the duration of this Agreement, you will have a rolling account (‘Rolling
Account’) with us the balance of which will be calculated, at any time as
follows:
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(i)
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add
the Purchase Price of the Debts purchased by
us; then
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(ii)
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multiply
that amount by the Payment Percentage;
then
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(iii)
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deduct
from that amount the value of any Advances already made by us to
you; then
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(iv)
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deduct
from that amount any Fees, Disbursements or other fees then due to us and
the value of any current Disapproved Debts (including any Debts aged 90
days or more); then
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(v)
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add
the value of any re-approved Debts;
then
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(vi)
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add
any collections of any Debts received from your Customers and the sum so
calculated, if positive is your "Purchase Price
Entitlement", for which you may make a payment
demand.
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(b)
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You
may request payment of the Purchase Price Entitlement, in the manner
mutually agreed between us and you from time to time. Any balance of the
Purchase Price owed by us to you will constitute a deferred payment and be
conditional upon our irrevocable collection of the related Debts and be
paid after deduction of all Fees, disbursements, costs or other expenses
incurred by us, in accordance with this
Agreement.
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(c)
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You
will not be entitled to request or receive any payment from us under
paragraph (b) above:
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(i)
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if
and to the extent that the relevant payment would result in the aggregate
amount of all payments from us at any time exceeding the Purchase Price
Entitlement Limit;
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(ii)
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if
you are Insolvent; or
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(iii)
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at
any time at which we are entitled to terminate this Agreement under Clause
13.2, whether or not we actually exercise any such
right.
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(d)
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Each
payment made by us to you will be denominated in the same currency as the
Purchase Price of the Debt to which it relates. It is your
responsibility to ensure that the account to which such payment is to be
transmitted under paragraph (c) above is suitable for the receipt of funds
in the relevant currency. We will not be liable for any loss or
damage suffered by you in the event that the bank or other institution at
which such account is maintained declines to accept a payment transmitted
to it in that currency.
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(e)
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We
will debit your Rolling Account with each amount paid to you under Clause
3(b) on the Business Day on which we give instructions to our bankers to
transmit that payment to your account under paragraph (d)
above.
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(f)
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Upon
the occurrence of a Termination Event, any further Advances to you will
cease automatically and you will only be entitled to receive the Purchase
Price of any Debts, or any remaining balance thereof, if
payment for such Debt is received from your Customers, after deduction of
any Fees, disbursements, commissions, costs or other expenses as provided
in this Agreement or otherwise incurred by
us.
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4.
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Charges
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4.1
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Discount
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(a)
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Discount
will be charged on the daily net total balance outstanding and due from
Customers to us in respect of the Gross Invoice Value of all Debts
purchased applied on a daily basis.
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(b)
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Any
receipt by us from your Customers will be credited to your Rolling Account
with us four (4) Business Days after the day of banking, but not including
the day of banking.
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(c)
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Payments
made to you will be debited from your Rolling Account with us on the day
on which they are made whether the payment is made to you by cheque or
bank transfer.
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4.2
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Fees
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(a)
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We
shall charge an Administration Fee to you on a monthly basis on the first
day of each month.
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(b)
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A
Commencement Fee will be due and payable by you upon
Commencement.
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4.3
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Minimum
Fee
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We
will charge a monthly Minimum Fee in the event that your net funds
employed each month following Commencement falls below USD$600,000,
payable on a monthly basis. The Minimum Fee will continue to be
payable notwithstanding the occurrence of any Termination
Event.
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4.4
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Bank
Fee
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(a)
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We
shall charge a transfer fee each time funds are transferred by us or
received by us in connection with this
Agreement.
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(b)
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You
shall pay us all bank commission and other charges and expenses incurred
or payable by us in relation to this Agreement and the arrangements
contemplated in it on demand.
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4.5
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Over-payment
Fees
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We
shall charge over-payment fees when you require funds in excess of the
applicable Purchase Price Entitlement from time to time and we elect, in
our discretion, to Advance you such funds in excess of the Purchase Price
Entitlement at such time. The over-payment fee will be
calculated by increasing by 50% the Administration Fee payable during the
period that you have drawn in excess of your Purchase Price Entitlement
for such time, but such over-payment fee rate shall only apply for such
period as you are overdrawn in excess of your Purchase Price Entitlement
at such time.
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4.6
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Disbursements
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(a)
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In
calculating your Purchase Price Entitlement, we shall deduct (and as such
withhold from), in accordance with clause 3(a)(iv) (Payments to you) all
disbursements which are identifiable as being attributable to you
including, reasonable and documented attorney’s fees, court costs and
other expenses incurred by us in the set-up, preparation, negotiation and
enforcement of this Agreement and protecting or enforcing our interest in
any Debt, in collecting the Debts or any security for this Agreement,
including reimbursement for premiums incurred by us to insure against
non-payment of any Debt or other insurable losses to the security for
this Agreement, and credit reference fees, (such disbursements, “Disbursements”).
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(b)
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Notwithstanding anything in
paragraph (a) above, you have, prior to Commencement, paid to us, and we
have received and hold, an Expense Deposit to reimburse us for our actual
costs and expenses incurred in connection with our review and approval
process in relation to this Agreement, as well as field auditor fees, and
reasonable and documented attorneys' fees and expenses incurred in the
negotiation, execution, amendment or enforcement of this Agreement or the
Ancillary Documents ("Approval Process Expenses"). We will
provide you with a written accounting of all Approval Process Expenses,
which shall be conclusive, absent manifest error. That portion
of the Expense Deposit equal to the Approval Process Expenses is
non-refundable, irrespective of whether Commencement under this Agreement
ever occurs.
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The
excess of the Expense Deposit over the Approval Process Expenses will be paid to
you upon demand and any Approval Process Expenses in excess of the Expense
Deposit shall be paid by you on demand, unless this transaction does not close
as the direct result of our gross negligence or wilful misconduct.
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5.
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Collection
from Customers
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(a)
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From
Commencement we shall have the sole and exclusive right to collect and
enforce payment of every Debt other than Debts Reassigned to you and you
have no right to collect any Debt (including any Disapproved Debt ) unless
we authorise you to do so in advance in
writing.
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(b)
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You
will assist our collection efforts if we so request by promptly providing
all information required and you agree that for collection purposes we may
institute and conduct legal proceedings in your name under our full
control. You also agree to co-operate in any such proceedings
(including the giving of evidence) and agree to be bound by anything done
by us under this Clause.
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(c)
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You
will immediately pass to us or to any bank we direct any payment a
Customer makes to you directly in respect of a Debt and you agree not to
▇▇▇▇ or endorse any negotiable instrument relating to such payment
otherwise than in our favour. You will hold any payment you
receive for a Debt on our behalf for us until we receive it, separately
and exclusively for our account. Should you receive any check
or other payment instrument with respect to a Debt or after default any
Debt and fail to surrender and deliver to us said check or payment
instrument on the next business day following the date of receipt by
Customer, we shall be entitled to charge you a Misdirected Payment Fee to
compensate us for the additional administrative expenses that the parties
acknowledge is likely to be incurred as a result of such
breach. This is without prejudice to any other remedies that
may be available to us at law.
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(d)
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If
a Customer makes a payment either to us or to you without specifying which
Debts are covered by it then we shall apply it first against any Debts
outstanding, second against the discharge of your liability to us, if any,
whether arising under this Agreement or otherwise, and any remaining
balance shall be paid to you for your
disposition.
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(e)
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If
there is shown in our books a credit balance with any Customer which
remains outstanding we shall be entitled at our discretion to make
repayments of such credit balance to the Customer out of monies available
to you.
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(f)
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If
any Debt received from any Customer is received by us in a currency other
than U.S. Dollars and the amount produced by converting the other currency
to U.S. Dollars is less than the amount of any sum advanced by us in
relation to the Debt in question, then we shall be entitled to recoup any
such shortfall from any Purchase Price Entitlement and you will in any
event as an independent obligation indemnify us for the deficiency and any
loss sustained as a result.
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(g)
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Unless
agreed by us in writing in advance any payments due hereunder shall be
made in U.S. Dollars, Sterling, or Euros. Any conversion
described in paragraph (f) above shall be made at the prevailing rate of
exchange on the date of clearance of any amount banked by us in such
market as is reasonably determined by us as being most appropriate for
such conversion, and you will in addition pay to us, or we shall be
entitled to deduct from your Purchase Price Entitlement all costs, charges
and expenses relating to the collection of and Debt; and/or in the case of
a Debt not denominated in US dollars, Sterling or Euros conversion of
amounts collected into such currencies (or into such other currency as we
determine from time to time) of such
conversion.
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6.
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Disputed
Goods
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If any
goods relating to any Debt are returned by a Customer or delivery is refused or
the goods are rejected or repossessed by you, you will issue a credit note to
such Customer within 7 days of the goods being returned, rejected or repossessed
and provide a copy of such credit note to us. In addition, you will
repay to us the amount of such credit note so that we are not out of
pocket.
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7.
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Accounts
and Set-Off
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(a)
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We
shall keep a permanent record to show all sums payable or paid to you, all
payments received in relation to Debts and all fees, expenses and other
sums payable or paid by you under this Agreement or
otherwise. Beginning on Commencement, we will send to you a
copy of such account which shall be taken as prima facie evidence of the
matters stated in it at the date of its preparation unless within fourteen
(14) days from despatch you notify us in writing of any
discrepancy. We shall further provide you with online access
via a secured website to information on the Debts and reconciliation of
the relationship relating to billing, collection and account maintenance
such as aging, posting, error resolution and mailing of statements in the
ordinary course of our business. All of the foregoing shall be
in a format and in such detail, as we, in our sole and absolute
discretion, deem appropriate.
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(b)
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We
may at any time set off any monies due to us from you whether pursuant to
this Agreement or otherwise against any sums due from us to
you. We shall only be obliged to pay you sums which are net of
any Discount fees and Disbursements due to
us.
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8.
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Accounting
and Access to Information
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You
agree that you will:
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(a)
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maintain
accounting records and allow us or our properly authorised agents to enter
your premises upon reasonable advance notice during business hours to
inspect them and such other papers as we may wish relating to your
business debts generally and allow us to make copies and extracts
therefrom and to discuss such affairs, finances and accounts with your
officers, employees and independent certified public accountants all at
your expense at the standard rates charged by us for such activities, plus
our reasonable out-of-pocket
expenses.
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(b)
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permit
us or our agents to verify with your Customers by sampling or such other
means as we may deem appropriate the existence and collectability of Debts
prior to Commencement and at any time
thereafter;
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(c)
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cause
a proper audit to be completed of the books of account for yourself and
your subsidiaries, if any, for each fiscal year and send an audited report
and accounts to us as soon as they are available and in any event within
three months from the end of each fiscal
year;
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(d)
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deliver
to us:
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(i)
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no
later than thirty (30) days after the end of each calendar month your
unaudited financial statements for that calendar
month;
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(ii)
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no
later than one hundred twenty (120) days after the end of each fiscal year
your draft, unaudited annual financial statements;
and
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(iii)
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no
later than thirty (30) days after the end of each calendar month a
certificate from you stating whether any Termination Events have occurred
and stating in detail the nature of the Termination
Event;
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(e)
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keep
us informed at all times of the creditworthiness of your Customers and the
validity of each Debt and in particular of any counterclaims, right of set
off or other contra items raised by your Customers in relation to any Debt
and provide reasonable assistance to us in every way to safeguard our
interests and your own interest with respect to such
Debts;
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(f)
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as
and when produced, send us management accounts for your business and at
our request for any Related Company in a format and at intervals
acceptable to us;
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(g)
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if
we require, send to us within five (5) Business Days from the end of each
month an aged list of your creditors or a copy of your bought
ledger;
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(h)
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report
to us immediately about reclaimed, repossessed or returned merchandise,
Customers' claims and disputes, and any other matters affecting any
Debts;
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(i)
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on
completion provide us with specimen signatures (electronic or otherwise)
of persons authorised to sign any documents relating to this Agreement
together with a board resolution or local-law equivalent document,
authorising for this purpose such persons and inform us promptly of any
change in the signatory authority of any of such
signatories;
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(j)
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on
completion provide us with a signed letter in the form set out in Schedule
3 (Notice to Existing
and New Bank Accounts) for all existing bank accounts (and whenever
you open a new bank account);
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(k)
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notify
us in writing
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(i)
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as
soon as you become aware of any event which affects or may affect your
warranties or our rights of termination as provided
hereunder;
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(ii)
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of
any mortgages charges liens or other security over your assets as of the
Commencement;
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(iii)
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immediately
when there are any material adverse changes in your business, changes in
your directors or a material change in Control of your ownership (a
person, firm or company acquiring fifty percent (50%) or more of your
voting equity after Commencement is for this purpose deemed to be
material);
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(iv)
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of
any company which becomes or ceases to be a Related
Company;
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(v)
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as
soon as you become aware of any Customer which is your Associate or an
Associate of any of your directors or might otherwise fairly be regarded
as connected to you or any of your directors;
and
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(vi)
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of
the terms upon which any goods are supplied to you and obtain such waivers
or variation to such terms as we may
require.
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9.
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Warranties
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9.1
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You
warrant that:-
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(a)
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This
Agreement is valid, binding and enforceable on you in accordance with its
terms except to the extent that effect may be given to the law of another
jurisdiction, insofar as, under the law of that jurisdiction, the law is
mandatory irrespective of the governing law of this Agreement and except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or limiting creditors’ rights generally or by
equitable principles.
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(b)
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Neither
you, nor any of your subsidiaries has taken any corporate action or any
other step nor have any legal proceedings been threatened or served for
the bankruptcy, judicial re-organisation, winding-up administration,
receivership, administrative receivership or other insolvency or recovery
process.
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(c)
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You
are not in breach or default under any agreement to which you are a party
or which may affect you or any of your assets to an extent or in a manner
which woud reasonable be expected to have a material adverse effect on the
business or financial condition of you and your subsidiaries, taken as a
whole.
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(d)
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All
financial statements delivered to us unless otherwise expressly stated
otherwise have been prepared in accordance with generally accepted
accounting principles in Belgium consistently applied and such financial
statements fairly present in all material respects your financial
condition at the date as of which they were prepared and the result of
your operations for the period to which they
relate.
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(e)
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All
information provided by you is true complete, accurate and up to date in
all material respects and you are not aware of any material facts or
circumstances that have not been disclosed to us which if disclosed might
adversely affect our willingness to enter into this Agreement or accept
any person to be a guarantor or indemnifier of your obligations and
liabilities.
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(f)
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Your
business is not subject to a floating charge (pand op de handelszaak/gage
sur fonds de commerce) or mortgage (hypotheek/hypothèque),
similar foreign law security or any mandate to create the
same.
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9.2
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You
warrant in respect of each Debt
that:-
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(a)
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you
will not waive or modify your normal trading terms with such Customer
without obtaining our prior written consent and in particular you will not
extend the time for payment;
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(b)
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the
sale of each Debt constitutes a true sale following which we will become
the unencumbered owner of the purchased Debt for the full amount owing to
you under such Debt sold to us and of all assigned ancillary and accessory
rights and remedies included in the sale of such Debt to
us,
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(c)
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no
supplier to you will retain title to any goods sold by you which are the
subject matter of such Debt;
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(d)
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you
have already performed all the obligations required for enforcement of
such Debt including delivery of goods or performance of services and are
not aware of any actual or threatened dispute arising from or relating to
such obligations;
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(e)
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you
have not acquired any Debt as part of an acquisition of a business or of
another set of assets falling under the scope of Article 442bis of the
Belgian Income Tax Code, Article 93undeciesB of the Belgian VAT Code or
Article 41quinquies of the Social Security Act of 27 June
1969;
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(f)
|
to
your knowledge, such Customer will pay the full amount of such Debt no
later than 90 days from the invoice
date;
|
|
(g)
|
the
Customer has an established place of business, is not connected or
associated with you and has no right which would reduce or extinguish the
Gross Invoice Value of the Debt.
|
|
(h)
|
the
supply contract giving rise to that
Debt:
|
|
|
(i)
|
is
valid, binding and enforceable against the
Customer;
|
|
|
(ii)
|
has
been made in the ordinary course of your
business;
|
|
|
(iii)
|
is
governed by Belgian law or other law approved by us in writing, and
provides for the Customer's submission to the jurisdiction of the courts
of Belgium;
|
|
|
(iv)
|
contains
no prohibition against assignment of the Debt or any related right by
us;
|
|
|
(v)
|
is
not subject to the consumer credit Act of 12 June 1991 or any other
consumer protection regulations or subordinate
legislation;
|
|
|
(vi)
|
provides
for payment in Euros, Sterling, or US dollars, unless otherwise agreed by
us in writing;
|
|
|
(vii)
|
meets
all criteria specified under insurance
policies;
|
|
|
(viii)
|
is
not subject to, and does not arise in connection with a contract which is
subject to public procurement laws and regulations;
and
|
|
(i)
|
you
have taken all reasonable steps to ascertain the creditworthiness of the
Customer prior to the delivery of goods or the rendering of
services;
|
|
(j)
|
you
have no reason to believe that the Customer will in the ordinary course of
business be unable to, or will not for any reason, pay the Debt in full
when it falls due;
|
|
(k)
|
such
Debt:
|
|
|
(ix)
|
constitutes
valid, binding bona fide Debt owed by the Customer to you in the amount
notified to us by you, and is enforceable against the Customer
in accordance with the terms of the contract giving rise to the
Debt;
|
|
|
(x)
|
is
freely assignable, has not been sold, assigned (whether absolutely or by
way of security), mortgaged, charged, pledged, hypothecated or otherwise
disposed of or transferred to, or encumbered in favour of, to any other
person, nor has any agreement been made to do so;
and
|
|
|
(xi)
|
is
not subject to withholding tax; and
|
|
|
(xii)
|
arises
from the sale of goods or the provision of services by you;
and
|
-10-
|
|
(xiii)
|
is
an obligation in respect of which no ▇▇▇▇ of exchange, promissory note or
other negotiable instrument has been issued;
and
|
|
(l)
|
the Customer has no right of
set-off, deduction, abatement , suspension, rescission counterclaim, or other
defence in respect of the
Debt (other than those provided for under mandatory rules of
applicable law), and you have not entered into any netting agreement with
the Customer.
|
|
10.
|
Undertakings
|
|
|
You
will:
|
|
(a)
|
keep
us informed at all times of the creditworthiness of all Customers and
(without prejudice to any of your other obligations under this Agreement)
of any counterclaim, right of set-off, deduction, abatement or contra-item
raised by a Customer at any time;
|
|
(b)
|
if
we so require:
|
|
|
(i)
|
instruct
your auditors to report directly to us at the your expense;
and/or
|
|
|
(ii)
|
use
your best efforts to procure that each bank or similar financial
institution with which you maintain accounts provides us with copies of
statements of those accounts; and
|
|
(c)
|
promptly
notify us upon your becoming aware of any matter or circumstance that
constitutes (or would, with the passing of time or the giving of notice,
constitute) a Termination Event.
|
|
10.1
|
Negative
Undertakings
|
You
will not:
|
(a)
|
sell,
assign, transfer, mortgage, charge, pledge or otherwise dispose of or
encumber any Debt and/or its related rights and/or the proceeds of a Debt
or its related rights or your rights under this Agreement, or agree or
purport to do so, other than in favour of
us;
|
|
(b)
|
without
our prior written consent, materially waive or modify (or purport to waive
or modify) any of the terms on which you supply goods or provide services
and, in particular you will not extend the time for payment of any Debt or
purport to do so;
|
|
(c)
|
without
our prior written consent, permit any supplier to retain title to goods
supplied to you (unless such is mandated by applicable law);
or
|
|
(d)
|
sell
or assign to us any Debt which is subject to any rights of retention of
title, lien, recovery of possession and other remedies given by law to an
unpaid vendor of goods or services.
|
-11-
|
10.2
|
Positive
Undertakings
|
You
will:
|
(a)
|
execute
and deliver or (as the case may be) procure that the relevant person or
persons execute and deliver the Ancillary
Documents;
|
|
(b)
|
comply
in all material respects with all legislation and regulatory requirements
applicable to your business or assets where failure to do so would
reasonably be expected to materially adversely affect your business,
assets or financial condition;
|
|
(c)
|
promptly
perform your continuing obligations under every supply contract giving
rise to a Debt, including without limitation the repair and/or maintenance
of goods supplied, to ensure that the Customer will accept the invoice
relating to it (or, if the Customer is Insolvent, the Customer’s trustee
in bankruptcy or liquidator will accept a proof of the unpaid balance of
the Debt) without any dispute or claim whatsoever (whether or not
justifiable);
|
|
(d)
|
if
so required by us, deliver to us a letter, signed by you in such form as
we may specify, addressed to each bank or financial institution at which
you maintain an account, instructing such bank or financial institution as
to the disposition of remittances received or to be received by it in
purported settlement of any Debt;
|
|
(e)
|
promptly
notify us in writing of any dispute of any kind between you and the
Customer and to use all reasonable endeavours promptly to resolve every
such dispute;
|
|
(f)
|
provide,
and procure that any relevant Associate provides, to the extent required,
safety briefings and equipment to our staff as necessary to comply with
their responsibility under Belgian Act of 4 August 1996 on the Well-Being
of Employees and ensure a safe system of work for such staff whilst on
your or any such Associate’s
premises.
|
|
11.
|
Recourse
|
|
(a)
|
We
may require you, at any time after we have served a written notice (a
“Repurchase
Notice”) upon you, to repurchase immediately any Disapproved
Debt.
|
|
(b)
|
Each
Repurchase Notice will set out in reasonable
detail:
|
|
|
(i)
|
the
description of each Disapproved Debt to be repurchased;
and
|
|
|
(ii)
|
the
repurchase price applicable to each such Disapproved
Debt.
|
|
(c)
|
Until
all the moneys payable by you under the relevant Repurchase Notice have
been paid to us, the Disapproved Debts included in such notice
and their respective related rights (together with any goods relating to
them) will remain vested in us, without prejudice to our right to deduct
any such amounts by you to us from the Purchase Price
Entitlement owed to you or any other amounts payable by us. We will, upon
receiving payment of all such moneys and having our expenses paid by you,
reassign the relevant Disapproved Debts and their related rights (and the
relevant goods, if any) to you, and may give or require you to give an
accompanying notice to each relevant Customer to that
effect.
|
-12-
|
(d)
|
After
the ownership of any Disapproved Debt has re-vested in you in accordance
with paragraph (c) above, we will pay to you all sums subsequently
received or recovered by us in relation to that Disapproved Debt, after
deduction of any amounts then due and owing by you to
us.
|
|
(e)
|
We
have an additional right to require you to repurchase any Disapproved Debt
at any time in our absolute discretion, whether or not you are in breach
of your obligations under this
Agreement.
|
|
12.
|
Power
of Attorney
|
You
grant to us an irrevocable power of attorney authorizing and permitting us, at
our option, with or without notice to you to do any or all of the
following: (a) upon providing prior written notice to you, endorse
your name on any checks or other evidences of payment whatsoever that may come
into our possession regarding such Debts we purchase; (b) upon the occurrence
and during the continuance of a Termination Event, receive and open of any mail
addressed to you and put our address on any statements mailed to Customers;
provided that we shall turn over to you all such mail not related to the Debts
we purchase; (c) upon providing prior written notice to you, pay, settle,
compromise, prosecute or defend any action, claim, conditional waiver and
release, or proceeding relating to Debts we purchase; (d) upon the occurrence
and during the continuance of a Termination Event, notify in your name, the
relevant postal authorities to change the address for delivery of mail addressed
to you to such address as we may designate, however, we shall turn over to you
all such mail not relating to the Debts we purchase; (e) upon the occurrence and
during the continuance of a Termination Event we may effect debits to any Demand
Deposit or other account that you maintain at any bank for any sums due to or
from you under this Agreement; and (g) upon the occurrence and during the
continuance of a Termination Event, to do all other things necessary in order to
give effect to this Agreement. This means that we can act on your
behalf without reference to you in connection with the collection of book
debt. The authority granted to us herein is irrevocable until this
Agreement is terminated and all of your obligations hereunder are fully
satisfied in accordance with the terms of this Agreement.
|
13.
|
Duration
of Agreement
|
|
13.1
|
This
Agreement will remain in operation for a period of thirty six (36) months
from and including Commencement, after which, this Agreement shall be
extended automatically for an additional period of twelve (12) months for
each anniversary of the date of this Agreement (a “Successor Term”) unless
written notice of termination is given by either you or us at least sixty
(60) days, but not more than ninety (90) days, prior to the end of the
Original Term, or any Successor Term thereto (as
applicable).
|
|
13.2
|
Our
rights of immediate termination are set out
below.
|
|
|
We
may by giving you written notice terminate this Agreement forthwith
if:
|
|
(a)
|
you
commit a breach of any term of this Agreement and such breach is not cured
or waived within ten (10) days of the occurrence
thereof;
|
|
(b)
|
you
fail to perform any of your obligations under the Belgian Security
Documents;
|
|
(c)
|
there
is any change in the person or persons who Controls you;
or
|
-13-
|
(d)
|
any
of our payments to you are not used in the ordinary course of your
business;
|
|
(e)
|
any
monies owing from you to us are not paid within seven (7) days after they
become due hereunder;
|
|
(f)
|
any
distress, execution, seizure or (conservatory or executory) attachment
(not including any preliminary attachment, unless such preliminary
attachment is not lifted within ten (10) days after it has been made) is
levied upon any of your goods or premises or any garnishee order is made
on any person indebted to you;
|
|
(g)
|
you
or any person who has given to us a guarantee or indemnity (including but
not limited to any guarantee) in respect of your obligations under this
Agreement, becomes unable to pay their debts or becomes Insolvent, or the
effectiveness or ranking any security given to us in connection with this
Agreement is flawed or impaired; or
|
|
(h)
|
you
convene a meeting for the purpose of passing a resolution for creditors
voluntary winding up, or are the subject of a compulsory winding up order
or a petition for an administration order is presented and you cease to
carry on business or call a meeting of creditors to make an arrangement or
composition with creditors or permit a judgment to remain unsatisfied for
seven days; or
|
|
(i)
|
you
are or have become Insolvent;
|
|
(j)
|
if
any person who has provided to us a waiver or who has executed a deed of
priorities or given any other consent withdraws or purports to withdraw
the same in circumstances where we may be materially adversely affected;
or
|
|
(k)
|
there
is a material adverse change in your financial condition, business or
operations as a whole.
|
|
13.3
|
Any
reference in this clause to you shall be taken to include any of your
subsidiaries.
|
|
14.
|
Consequence
of Termination
|
|
(a)
|
Termination
of this Agreement will not affect the rights or obligations of either you
or us in relation to any Debt nor affect the continued accrual of
Discount, Administration Fees or any other fees or expense payable under
this Agreement and this Agreement will continue to bind us both as long as
it is necessary to satisfy these rights and
obligations.
|
|
(b)
|
In
the event of termination of this Agreement by you prior to maturity or
upon the occurrence of a Termination Event, other than as a result of our
breach of this Agreement, our gross negligence or our wilful misconduct,
then without prejudice to our accrued rights and remedies under this
Agreement you agree to pay us forthwith upon written demand Termination
Fee.
|
|
(c)
|
In
the event of termination of this Agreement by you prior to maturity or
upon the occurrence of a Termination Event, other than as a result of our
breach of this Agreement, our gross negligence or our wilful misconduct,
then without prejudice to our accrued rights and remedies under this
Agreement you agree to pay us forthwith upon written demand a sum equal to
the amount of all payments we have made to you under this Agreement plus
all fees and charges which have accrued during the Agreement less the
amounts which we have received from your Customers and which have been
allocated to your account with us.
|
-14-
|
(d)
|
In
the event of termination of this agreement by your prior to maturity or
upon the occurrence of a Termination Event we may retain any amount
received by us in respect of any Debt pending the drawing up of a final
account and the payment of any amount that may remain thereunder due to
us.
|
|
(e)
|
Following
the drawing up of a final account and any consequent payment to us, we
shall reassign to you without payment any Debts still
outstanding.
|
|
15.
|
Security
|
|
(a)
|
You
will grant us such security rights as we may from time to time require as
security for the payment of all sums due or becoming due to us under this
Agreement and you will not give any new charge or other security to any
third party without first obtaining our written
consent.
|
|
(b)
|
We
may from time to time require as a precondition to the continuation of the
facilities provided to you under the terms of this Agreement the execution
of other security documents or agreements providing for the subordination
of certain of your Debt, to the extent such debt may be collateralized by
all or any portion of the Debts.
|
|
16.
|
Indemnity
|
|
(a)
|
You
agree to indemnify us against any claim by a Customer and any loss
incurred by us as a result of our entering into this Agreement, except to
the extent that such claims or losses arise from our gross misconduct,
fraud, or deceit. No waiver forbearance or indulgence granted
by us to you or to any Customer will in any way discharge you from your
liabilities to us.
|
|
(b)
|
You
irrevocably agree to indemnify us against any cost, loss or expense that
we may suffer or incur in respect of, except to the extent that such
claims or losses arise from our gross misconduct, fraud, or
deceit;
|
|
|
(i)
|
any
breach of the warranties or obligations by you or any other person (other
than us) under this Agreement or any Ancillary
Document;
|
|
|
(ii)
|
any
stamp, documentary, registration or similar duty or tax (including any
penalty for late payment) imposed on or paid in respect of this Agreement
or any Ancillary Document;
|
|
|
(iii)
|
acting
on instructions appearing to come from you and given by telephone,
facsimile or other electronic means, regardless of the authority or
capacity of the person actually giving those
instructions;
|
|
|
(iv)
|
collecting
any cheque or negotiable instrument payable to you or endorsed in your
favour; or
|
|
|
(v)
|
any
claim made on us by any Customer in relation to a Debt or its related
rights.
|
|
17.
|
Transfer
of Rights
|
We
shall be entitled to assign this Agreement or any of our rights and obligations
hereunder. You may not assign or otherwise deal with this Agreement or your
rights and obligations hereunder without our prior written consent.
-15-
|
18.
|
Variation
|
This
Agreement may only be varied by a document signed by us and by you.
|
19.
|
Severability
|
Any
provision of this Agreement which is illegal, invalid, prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such illegality, invalidity, prohibition or
unenforceability in any other jurisdiction will not invalidate or render
unenforceable such provision in any further jurisdiction and the parties will
negotiate in good faith to replace the relevant provision by another provision
reflecting as closely as possible the original intention and purposes of the
parties.
|
20.
|
Notices
|
Any
notices to be given by either of us to the other may be either delivered by hand
to the other party or its authorised agent or sent by pre-paid first class
letter, registered post, recorded delivery fax transmission or telex to such
party as its principal place of business or at its registered
office. Notice of Termination from you to us is only effective seven
(7) days after receipt by us.
|
21.
|
Third
Parties
|
No
person who is not a party to this Agreement shall have any rights under this
Agreement.
|
22.
|
Electronic
Communications
|
We
shall take all reasonable steps to ensure that electronic communications are
properly stored, not accessible to unauthorised persons, not altered lost or
destroyed and are capable of being retrieved during such period as you remain a
customer.
In
return you undertake and agree that we may accept rely and act upon any
information received in an electronic communication even though it may not
originate from you or any authorised officer of yours. Moreover if
you use any intermediary to transmit log or process messages then you do so at
your own risk and shall be responsible for your intermediary's acts and
omissions. You will indemnify us from and against all losses arising
from any incomplete or inaccurate information contained in or failure to receive
any Electronic Communication.
|
23.
|
Applicable
Law and Jurisdiction
|
This
Agreement is to be interpreted in accordance with and governed by [Belgian]
Law. Each party submits to the non-exclusive jurisdiction of the
courts of [Brussels] to settle any disputes (including claims for set-off and
counterclaims) which may arise in connection with the legal relationships
established by this Agreement or otherwise arising in connection with this
Agreement.
-16-
|
24.
|
Counterparts
|
This
Agreement may be executed in any number of counterparts, and on separate
counterparts, but shall not be effective until at least one counterpart has been
executed on behalf of each party.
Each
counterpart shall constitute an original of this Agreement, but all the
counterparts shall together constitute but one and the same
instrument.
|
25.
|
Interpretation
|
|
·
|
“Advances” has the
meaning given to such term in Clause 3 (b) of this
Agreement;
|
|
·
|
“Administration Fee”
means, in relation to a debt, sixty-six hundredths of one percent (0.66%)
of its Gross Invoice Value;
|
|
·
|
“Ancillary Documents’
means the Pledge of Receivables executed in connection with
Agreement on or about the date hereof and any such other document that we
may require to be executed, signed or delivered in connection with his
Agreement;
|
|
·
|
“Approved Debt” means
any Debt in respect of which the Payment Percentage has been advanced or
is payable and which has not been Disapproved by us or which is previously
Disapproved and has since been re-approved; and 'Approve' in relation to
any Debt will be construed
accordingly;
|
|
·
|
“Associate” means any
relative, or any partner, director, shareholder, or management employee of
you or of any Related Company;
|
|
·
|
“Belgian Security
Documents” means the Pledge of Receivables executed in connection
with Agreement on or about the date
hereof;
|
|
·
|
“Business Day” means any
day other than a Saturday, Sunday or other day on which banks are required
or permitted to close in the city of Brussels, The Kingdom of
Belgium;
|
|
·
|
“Commencement” means the
effective date of this Agreement;
|
|
·
|
“Commencement Fee” means
thirty thousand and 00/100 U.S. Dollars
(US$30,000);
|
|
·
|
“Control” means the
power to secure that the affairs of a company or a group of people are
conducted in accordance with the wishes of those holding such
power;
|
|
·
|
“Customer” means any
person to whom you supply goods or for whom you perform services, and who
is obliged in accordance with your records to make a payment for the
provision of goods or services under a contract for which an invoice has
been issued (or, if different, the person so
obliged);
|
|
·
|
“Debt” means the right
to claim any indebtedness owed or purported to be owed to you by any
Customer for goods supplied or services performed, calculated at Gross
Invoice Value, including, to the fullest extent permitted by law, the
benefit of any accessory and ancillary rights, and remedies arising in
connection with such contract (including, for the avoidance of doubt, the
benefit of any security interest, any seller’s lien and retention of title
and the proceeds under any credit insurances or other insurances in
relation to the supply of such services or goods, and the benefit of
repossession of goods);
|
-17-
|
·
|
“Disapproved Debt” means
any Debt:
|
|
|
(i)
|
that
remains wholly or partly unpaid after its due date for
payment;
|
|
|
(ii)
|
in
respect of which the representations and warranties contained in Clause 9
(Warranties) are untrue or misleading in any material
respect;
|
|
|
(iii)
|
that
is the subject of any dispute by the Customer, or in respect of which the
Customer asserts any right of retention, lien, set-off or
counterclaim;
|
|
|
(iv)
|
that
is aged ninety (90) days or more;
|
|
|
(v)
|
where
a particular Customer has exceeded either your credit limits or those
which we have notified to you; or
|
|
|
(vi)
|
that
we disapprove of;
|
|
·
|
“Disbursements” has the meaning given
to it in clause 4.6(a) (Disbursements);
|
|
·
|
“Discount” means a rate
equal to the greater of 7.00% per annum or 2.50% above the US ”Prime Rate”
as published by the Wall Street Journal Money Rates Section. In
the event that the Wall Street Journal ceases to publish a Prime Rate,
then the Prime Rate shall be the Prime Rate as announced by ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ Bank on a daily basis (all such Discount shall be computed for the
actual number of days elapsed on the basis of a year consisting of three
hundred sixty (360) days;
|
|
·
|
“Euro” or “Euros” means lawful
currency of the European Union;
|
|
·
|
“Expense Deposit” means
twenty thousand and 00/100 U.S. Dollars
(US$20,000);
|
|
·
|
“Fees” means
Administration Fee, Commencement Fee, Deficiency Assessment Fee, Misdirect
Payment Fee and Termination Fee;
|
|
·
|
“Gross Invoice Value” of
a Debt is the total amount thereof including VAT and before taking into
consideration any allowances in respect of discounts for prompt payment or
any other allowable deduction;
|
|
·
|
“Guarantee” means the
cross-company guarantee to be entered into on or about the date of this
Agreement by you and American Biltrite Far East, Inc. in favour of
us;
|
|
·
|
“Insolvent” means in
relation to a natural or legal person (which includes a partnership,
association, company or other incorporated entity), means any of the
following:
|
|
|
(i)
|
the
relevant person is unable to pay his or its debts within the meaning of
section 123 of the Insolvency ▇▇▇ ▇▇▇▇ or Article 2 of the Belgian
Bankruptcy Act of 8 August 1997;
|
|
|
(ii)
|
a
statutory demand is served on the relevant person and the statutory demand
is not set aside within 21 days;
|
|
|
(iii)
|
the
relevant person applies for an interim order under section 253 of the
Insolvency ▇▇▇ ▇▇▇▇ or an arrangement or a composition is made for the
benefit of creditors (or a class of creditors) whether or not pursuant to
the Insolvency ▇▇▇ ▇▇▇▇;
|
-18-
|
|
(iv)
|
a
bankruptcy order is made in relation to a partner in the relevant person,
or a partner applies for an interim order under section 253 of the
Insolvency ▇▇▇ ▇▇▇▇ or an arrangement or a composition is made for the
benefit of creditors (or a class of creditors) whether or not pursuant to
the Insolvency ▇▇▇ ▇▇▇▇;
|
|
|
(v)
|
a
petition is presented, or other proceedings are commenced, or a meeting is
called to pass a resolution, for the relevant person's bankruptcy, winding
up or administration or for a corporate voluntary arrangement or similar
procedure;
|
|
|
(vi)
|
a
receiver, administrative receiver, administrator or similar official is
appointed in respect of the relevant person or his or its
assets;
|
|
|
(vii)
|
the
relevant person’s assets are seized, distrained or executed
against;
|
|
|
(viii)
|
the
relevant person ceases or threatens to cease to carry on business or
suspends payment of his or its
debts;
|
|
|
(ix)
|
a
judgment or other money order is obtained against the relevant person, or
his or its assets, which is not satisfied within 7
days;
|
|
|
(x)
|
the
occurrence, in relation to that person, or his or its assets, of anything
analogous to the matters set out in paragraphs (i) to (x) (inclusive)
above under the laws of any other jurisdiction to which that person or his
or its assets may at any time be
subject;
|
|
|
(xi)
|
any
other amount due, owing or incurred by the person in respect of any
indebtedness is not paid when it becomes due, or becomes capable of being
declared due and payable prior to its stated maturity for any
reason;
|
|
·
|
“Minimum Fee” means the
difference between net funds employed for each month and USD$600,000
multiplied by the Administration Fee and the Discount calculated on a
daily basis;
|
|
·
|
“Misdirected Payment
Fee” means
fifteen percent (15%) of the amount of any payment on Debts which has been
received by you and not delivered to us on the next business day following
the date of receipt by you;
|
|
·
|
“Original Term” means
thirty six (36) months from the date of this
Agreement;
|
|
·
|
“Payment Percentage”
means eighty percent (80%) of the Approved
Debt;
|
|
·
|
“Purchase Price Entitlement
Limit” means two million and 00/100 U.S. Dollars
(US$2,000,000);
|
|
·
|
“Records” means, in
respect of any Debt, all contracts, correspondence, notes of dealings and
other documents, books, books of account, registers, records and other
information (including, without limitation, computer programmes, tapes,
discs, data processing software and related property and rights)
maintained (and recreated in the event of destruction of the originals
thereof) with respect to
such Debt and the related Customer owing such
Debt.
|
|
·
|
“Reassignment” means in
relation to any Approved Debt or Disapproved Debt our crediting the same
to your sales ledger control account and debiting the same to your client
account with us to reflect the fact that you have repurchased such Debt in
accordance with the provisions of clause 11 (Recourse);
|
-19-
|
·
|
“Related Company” means
a company which either you Control or which Controls you or which is
Controlled by the same person, firm or company which Controls you;
and
|
|
·
|
“Rolling Account” has
the meaning given to such term in Clause 3(a) of the
Agreement;
|
|
·
|
“Termination Event”
means any of the events described in Clause 13.2 (Duration of
Agreement);
|
|
·
|
“Termination Fee” means
the fee payable by you on the expiry of a notice of termination given in
accordance with Clause 13 (Duration of Agreement),
in the amount of sixty thousand and 00/100 U.S. Dollars
(US$60,000)
|
|
·
|
“Sterling” means lawful
currency of the United Kingdom;
|
|
·
|
“U.S. Dollars” or “$” means lawful
currency of the United States of
America.
|
-20-
Schedule
1
Schedule
of Accounts
Client’s
Name: Schedule
Number ________________
Page
____ of
_____ Date
________ 200_
|
Invoice
Date
|
Invoice
Number
|
Name
of Account Debtor
|
Location
|
Invoice
Amount
|
Currency
|
|
ASSIGNMENT:
KNOW ALL
MEN BY THESE PRESENTS that the undersigned for value received has
sold transferred and assigned and does hereby sell transfer and assign to Faunus
Group International, Inc. (hereinafter called the “Buyer”), its successors and
assigns, in accordance with the provision of that certain Debt Purchase
Agreement heretofore duly executed and delivered by the undersigned and duly
accepted by the Buyer and any amendments thereto (hereinafter called the
“Agreement”) each Account listed hereon and all right, title and interest of the
undersigned in and to such Account(s) and in and to all merchandise, the sale of
which shall have given rise to such Account(s), including all of the
undersigned’s right of stoppage in transit replevin and reclamation as an unpaid
vendor and the benefit of any repossession and security. Each Account
is made a part hereof as if attached or incorporated herein for specific terms,
conditions, provisions and description of said Account(s).
For the
purpose of inducing the Buyer to purchase such Account(s), the undersigned
hereby reaffirms all warranties under the Agreement applicable to such
Account(s) and account debtors. In the event of any breach of any
such warranty, the Buyer, its successors and assigns, shall have such rights,
inter alia, as are provided in the Agreement.
The
undersigned in his/her business capacity and warrants and represents
that, with respect to each Account, since the last sale of Accounts by the
undersigned to the Buyer, no merchandise has been returned or rejected, no
defense, dispute, claim, offset or counterclaim has developed or has been
asserted with respect to any Account heretofore sold, transferred and assigned
by the undersigned to the Buyer, which has not been or is not contemporaneously
being reported in writing by the undersigned to the Buyer.
IN
WITNESS WHEREOF, the undersigned has hereunto set its hand and seal this ____
day of _____________, 200___.
By:____________________________ Print
Name______________________ Title:___________________
(Signature)
-21-
[on the letterhead paper of American
Biltrite, Inc.]
Schedule
2
Notice
to Customers
_____________________________________________________________________________
Form of
notice to be served on completion by American Biltrite, Inc. on its customers
pursuant to clause 1(f) of the Debt Purchase Agreement.
_____________________________________________________________________________
FGI
Finance ("FGI")
We
hereby notify you that we have assigned our present and future receivables to
FGI.
To the
extent that you are now indebted or may in the future become indebted to us on
an account (i.e., invoices) or a general intangible, payment thereof is to be
delivered and made payable only to FGI and not to us or any other
entity. Payment in any other way will not constitute payment and will
not discharge your obligation.
The
payments should be wired in Euro only to FGI Finance with the following
instructions
Euro
Only:
Bank: The Royal Bank of
Scotland
Swift:
▇▇▇▇▇▇▇▇
IBAN Code:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Beneficiary: Citizens Bank-FCA
6334
Please
reference invoice numbers on all wire transmissions, advice forms, and
payments
This
letter may only be revoked by a writing signed by one of FGI’s officers whose
signature may only be relied on if acknowledged before a notary
public.
Please
fax a copy of this letter to FGI at ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ and to us at + [●] to
verify your receipt and acceptance.
Thank
you.
Very
truly yours,
American
Biltrite, Inc.
ASSIGNMENT
CONFIRMED:
By: ________________
Title:
_______________
By:____[Receivables
Debtor]________
Company:
_______________________
Title: ___________________________
Date: ___________________________
By: ________________
Title:
_______________
-22-
Schedule
3
Notice
to Existing and New Account Banks
_______________________________________________________________________________
Form of
notice to be served on completion by American Biltrite, Inc. on its account
banks pursuant to clause 8(j) of the Debt Purchase Agreement.
_____________________________________________________________________________
To: [●]
From: American
Biltrite Inc, Ideal Tape Division Belgium
Faunus Group
International Inc
Dear
Sirs,
Pursuant
to a pledge of receivables agreement dated [●] (the "Agreement"), American Biltrite Inc,
Ideal Tape Division Belgium, as pledgor (“ABI”) created a right of pledge with
first rank in favour of Faunus Group International Inc, as
pledgee (“FGI”) and any of its successors and assigns over any and
all of its claims, present and future, actual or contingent, against your
institution in connection with the balance from time to time, and as the case
may be the final closing balance, of the bank accounts opened in the name of
ABI with your institution, bearing the account numbers [●],[●] and
[●] (the ”Pledged
Accounts”).
ABI
shall remain free to operate the Pledged Accounts, and in particular to withdraw
or transfer any funds from such account, for as long as you have not been
notified to the contrary by FGI or its duly authorised agent.
Should
you ever receive notice from FGI or its duly authorised agent that no funds may
be withdrawn or transferred from the Pledged Accounts by ABI, you are hereby
irrevocably authorised to comply with this request and to act only in accordance
with any further instructions from FGI or its duly authorised
agent.
It is a
requirement of the Agreement that ABI obtains your agreement in writing, for the
benefit of FGI, that you waive any right of set-off or pledge and the benefit of
any "unicity of account" or similar provision in respect of the Pledged
Accounts.
-23-
Please
acknowledge receipt of this notice and confirm your agreement thereto by signing
and returning the duplicate of this letter attached hereto to the
undersigned.
Yours
faithfully,
[date]
AMERICAN
BILTRITE INC, IDEAL TAPE DIVISION BELGIUM
|
__________________________
Name:
Title:
|
__________________________
Name:
Title:
|
FAUNUS
GROUP INTERNATIONAL INC
|
__________________________
Name:
Title:
|
_________________________
Name:
Title:
|
We
acknowledge receipt of the above notice. We hereby agree, for the benefit of
Faunus Group International Inc and its successors and assigns to waive any right
of set-off or pledge and the benefit of any "unicity of account" or similar
provision in respect of the above mentioned Pledged Accounts. Should we ever
receive notice from Faunus Group International Inc or its duly authorised agent
that no funds may be withdrawn or transferred from the Pledged Accounts by ABI,
we will comply with this request and act only in accordance with any further
instructions from Faunus Group International Inc or its duly
authorised agent
Brussels,
___ [●]
[BANK]
|
__________________________
Name:
Title:
|
_________________________
Name:
Title:
|
-24-
EXECUTION
PAGE
DATED
June 30th 2009
IN
WITNESS WHEREOF, the parties have
executed this Agreement on
the date first written by their duly authorized representatives in two original
copies of the same tenor (each page initialled), of which one original copy
shall be delivered to
each of the Parties hereto
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Printed
name of
signer: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
By FAUNUS GROUP
INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Printed
name of
signer: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
-25-