EXHIBIT 10.3
ASSET FINANCING AGREEMENT
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General Conditions
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Between the Corporation designated in the attached "customer specific
conditions" and hereafter referred as "the Customer"
and
IFN Finance SA, whose principal place of business is located at Levallois-Perret
(922300), 39 rue Anatole France, hereafter referred as "IFN "
It has been agreed the following:
Based on the information provided by the Customer and its management, IFN agrees
to enter into an Asset Backed Financing Agreement with the Customer, this
agreement being made of the "General conditions" hereafter defined and the
attached "Customer Specific Conditions".
Article 1: Object of the Agreement
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Subject to the conditions stipulated in this agreement, and consideration of its
remuneration, IFN agrees to provide financing to the Customer based on the
balance of its account receivables as it appears at the end of each week.
Article 2: Scope of the Agreement
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This agreement is applicable to receivables generated by the sale of goods and
services provided the corresponding transactions are firm. During the duration
of this agreement, the Customer agrees to transfer to IFN Finance all
receivables falling within the scope of this agreement and to not enter into any
other agreement with a third party which would be in competition with IFN.
Are excluded from the scope of this agreement receivables corresponding to:
o Advance payments, conditional sales, consignments, partial or
pro-forma invoicing, temporary invoicing
o Invoicing of penalties, late payment interest and other charges
Are also excluded receivables from businesses over which the customer has an
effective controls or which conversely controls the customer by participating
to:
o its management
o its financial structure
The respect of the above defined scope of the agreement will be the customer's
responsibility, IFN having no control to perform.
Article 3: Current Account
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All transactions related to this agreement will be posted to a current account
open in Customer's name in IFN books . All transaction posted to this account
will be in Euros. At the initiative of IFN and at any time, transactions made in
other currencies could be converted in Euros at the rate then prevailing. IFN
will be entitled ,if necessary, to withdraw money from the currency current
account.
In case of plurality of accounts, due to sales made in different foreign
currencies, the currency current accounts will be considered only as
sub-accounts of main current account with all consequences attached whatever the
currency used for the transactions.
At the end of the termination notice period, a closing period will begin during
which all outstanding transactions will be completed and the final balance
established.
The Customer authorizes IFN to post to the debit of the Customer current account
amounts corresponding to debts it owns due to a contract concluded with a
supplier of the Customer.
Article 4: Debtors approval and Miscellaneous Arrangements
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Debtors for which the outstanding debt is expected to be greater than 100.000
Euros (One hundred thousand Euros) will be subject to IFN 's prior approval by
providing all necessary information related to their identification, the agreed
commercial and payment terms as well as the payment history. In the event the
information provided is either incomplete or erroneous, the approval will be
considered as having not been granted. All other debtors will be considered as
automatically approved.
All decisions concerning debtors approvals are strictly confidential and are for
Customer's use only. The Customer should not make any mention of these decisions
to any third party or to the debtor himself. Approvals are given in writing, the
approved amounts being inclusive of all applicable taxes.
Approvals determine only the applicable credit limit for the debtors concerned
and do not imply any kind of warranty on IFN part.
Approvals can be reduced or cancelled at any time by IFN; decisions are
communicated to the Customer by any available means and are immediately
applicable. In the event an approval is cancelled, the outstanding debt should
not exceed 100.000 Euros (one hundred thousand Euros).
(TRANSLATION NOTE: FOLLOWS SOME TECHNICALITIES CONCERNING THE WAY ACCOUNTS ARE
HANDLED. NOT TRANSLATED)
Article 5: Transfer of Debts
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The transfer of debts to the benefit of IFN are made in accordance with articles
L 313-23 through 313-34 of the monetary and financial code and the article of
law n(degree) 81 dated January 2,1981 known as the "loi Dailly".
The periodicity of transfers will be the last working day of each week. As a
consequence, the amount of debts transferred to IFN should be strictly
representative of the customer's own balance at the date of transfer, to the
exception of transaction for which the reconciliation is in process.
Transfers of debts to IFN should be made using the special transfer form defined
by IFN , copy of which has been given to the Customer who acknowledges its
receipt. The following information are required for the transfer:
o Date, number, total amount inclusive of taxes and payment terms for
each invoice or credit note, together with the grand total of all
invoices and credit notes transferred.
o Client number for each invoice or credit note
In the event the Customer receives a draft in payment for one or several
invoice(s) for which the debt has not yet been transferred to IFN due to the
fact the draft was received after the last weekly transfer, the Customer agrees
to postpone the posting of the said draft until the next weekly transfer.
The Customer is bound to deliver all documents necessary for the transfer of the
debts. Invoicing will be made in Euros.
The Customer guarantees that all invoices are issued in accordance with the
existing legislation. The Customer also guarantees that all invoices issued will
include a disclaimer specifying the payment should be made to the benefit of
IFN, a sample of the said disclaimer being attached in appendix to this
contract.
For each debt transferred to IFN, the Customer guarantees the corresponding
invoice was sent to the customer and that the said invoice included the
disclaimer related to the payment in favor of IFN.
(TRANSLATION NOTE: FOLLOWS TECHNICALITIES CONCERNING THE HANDLING OF THE
ACCOUNTS. NOT TRANSLATED).
Article 6: Proof of Debts
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Together with the weekly transfer form, the Customer will supply a copy of its
account receivables as of the date of transfer, the said copy being signed and
certified to be conform to the original. At any time IFN will have the right to
request:
o The original of invoices
o Copy of invoices together with a document, duly signed by the debtor,
stating he accepts the debt to be transferred to IFN
o All documents IFN will deem necessary to establish the proof of
reality of the debt
Furthermore, IFN will have the right, by any means including a direct contact
with the debtor, to conduct investigations in order to verify the validity of
credit notes issued as well as to reality of the debts being transferred.
Article 7: Collection of Receivables
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In its capacity of the owner of a debt once it has been transferred, IFN is
entitled to proceed to the collection of receivables as well as to grant
additional delay for their payment or to negotiate with the debtor any other
arrangement related to the said payment.
However, in consideration of the Customer's performance in collecting its
receivables, IFN gives the Customer a mandate to proceed, on its behalf, to the
collection of the receivables for which the debt has been transferred to IFN. As
a counterpart, the Customer agrees to maintain its current performance in
collecting the receivables and to strictly adhere to the defined procedures,
copy of which is included in this agreement. Any modification to the said
procedure should be approved by IFN before being put in use.
The mandate given to the Customer for the collection of receivables as defined
in the above paragraph, could be cancelled at any time and by any means by IFN.
In such event, the Customer agrees to:
o cease immediately to collect receivables
o provide the necessary assistance to IFN particularly in case the
reserve concerning the transfer of ownership is invoked, and inform
IFN of any circumstances or event which could result in a late payment
or compromise the payment.
In any case, IFN reserves its rights to intervene directly with the debtors, by
any means and without any formality toward the Customer.
The Customer agrees to deposit immediately to a dedicated collection bank
account open in the name of IFN, any instrument of payment received and related
to the debts transferred and to mention the said bank account number on any
invoice for which the debt will be transferred to IFN.
In the event a payment related to a debt assigned to IFN is received on a bank
account open in the Customer's name, the said payment is reputed to have been
made to the Customer in his capacity of proxy of IFN and the corresponding
amount should be transferred immediately to the IFN dedicated collection
account. Failure to do so, will entitle IFN to deduct the corresponding amount
from the Customer's current account, without prejudice for the sanctions
provided in article 14 of this agreement.
The Customer agrees to mention IFN as the beneficiary for all commercial drafts.
As a mandate of common interest, he also gives IFN the power to endorse any
instrument of payment he receives and for which the Customer is mentioned as the
beneficiary. The Customer also agrees not to revoke this mandate until the final
balance of the current account is established.
In case a debtor contests a debt which has been assigned to IFN, the Customer
will have thirty days from the date the contestation was brought to its
knowledge, to resolve the issue and to obtain from the debtor the commitment to
pay its debt in full. In the event the issue is not resolved within the thirty
period, IFN will have the right to deduct the corresponding amount from the
Customer's current account.
Article 8: Financing
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The amount of financing made available to the customer will be based on the
balance of the Customer's current account after deduction of following:
o The warranty reserve as defined in the Customer specific conditions
o The receivables which have been not approved by IFN
o The receivables overdue by more than 30 days
Furthermore this amount will be reduced according to the percentage of financing
and up to the financing limit defined in the Customer specific conditions.
The outstanding financing will be increased by the each withdrawal made by the
Customer on its current account and decrease by the receivables collected. The
balance of the current account will be used to calculate the amount of
commissions paid to IFN as defined in the Customer specific conditions.
The Customer is entitled to make withdrawals from its current account at any
time by sending written requests to IFN.
This right of withdrawal is limited to the available account balance. In the
event this balance becomes negative, the customer will do its best to correct
the situation as soon as possible. In such event interests will be charged by
IFN at the commission rate plus two points.
Legitimate deductions on the amount due such as discounts made by the debtor,
will be supported by the Customer as well as non-resolved dispute; they will be
deducted from the available balance.
In addition to the provisions defined in the article 14 of this agreement and in
case the Customer is unable to fulfill its contractual obligations, IFN will
have the right to put in hold, in all or in part, the requests for withdrawal
issued by the Customer.
Article 9: Warranty Reserve
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The customer requests IFN, in the conditions hereafter defined and according to
the Customer specific conditions, to build a warranty reserve to the benefit of
IFN to cover the principal, commissions, charges and any other obligation of the
Customer resulting from the execution of this agreement.
This reserve will not be available to the Customer and will not bear any
interest.
IFN is entitled to use this reserve at any time, to cover any debt he owns on
the Customer. In such case the warranty reserve should be rebuilt according to
the provisions of the Customer specific conditions and without any possibility
for the Customer to lower the level of such reserve.
At any time, this warranty reserve should cover the aggregate of the litigations
in process, credit notes to be issued, discounts of any sort including end of
year discounts and customer's agreed participation to its client's advertising
campaigns.
During the termination notice period, the warranty reserve will be increased by
fifty (50) percent.
Except in the case of formal and prior approval by IFN, the warranty reserve
will not be transferable to any third party and could not use as collateral
security to the benefit of a third party.
Article 10: Credit Insurance
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The customer agrees to transfer to IFN its indemnification rights resulting from
the credit insurance policy he subscribed to and agrees to make the necessary
arrangements to obtain from the insurance company an amendment to the existing
contract to assign its indemnification rights to IFN.
This amendment should be signed by the Customer, IFN, and the insurance company
within one month following the signature of this agreement.
The existence of such insurance policy was a determinant factor in IFN decision
to enter into this financing agreement with the Customer. As a consequence, IFN
reserves its rights to terminate the agreement in case the insure policy is not
renewed, terminated before its term or is not applicable due to the occurrence
of certain events.
The Customer will supply to IFN, as soon they are made available to him, the
following documents:
o Copy of the credit insurance policy and any amendment of it
o Copy of client's approvals or cancellation of such approvals
o Copy of any document establishing the insurance policy contractual
obligations are fulfilled, such as proof of payment of insurance
premiums, insurance claims etc.
The customer hereby authorizes IPN to communicate directly with the insurance
company in order to gather information.
Article 11: Remuneration of IFN
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The customer and IFN agree on the remuneration of IFN, the said remuneration
being defined in the Customer specific conditions.
All taxes, duties and other fiscal charges related to the transactions object of
this agreement , bank charges and expenses related to the management of the
receivables and their collection will be supported by the customer in case the
mandate assigned to the Customer and defined in the article 7 is cancelled by
IFN. Exchange rate fluctuations and the resulting risks will also be supported
by the Customer and no case by IFN.
Article 12: Information
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IFN will keep the Customer informed of the status of the receivables transferred
to IFN by sending a monthly statement detailing the transactions which took
place during the previous month. Any entry posted to the Customer current
account and shown on the monthly statement will be reputed to have been accepted
by the Customer if not contested within the 30 days following the date at which
the statement has been issued and forwarded to the Customer.
The Customer will inform IFN of all major events concerning its operations, its
management or the ownership of the company.
The Customer will forward to IFN, as soon as they are available and no later
than the mandatory date defined by the current legislation, the following
documents:
o Certificate of registration (Kbis) and company by-laws
o General sales conditions
o Balance sheet and income statement including the different schedules,
duly signed and certified to be conform to the original
o Auditors reports
o Quarterly financial reports no later than the end of the month
following the end of the quarter
o On a case by case basis and on IFN request, the IFN Customer audit
form with all required information
The Customer will have three months, starting from the first transfer of debt,
to forward to IFN in the electronic format duly accepted by IFN and with the
agreed periodicity, the following documents:
o Weekly: the receivable transfer form
o Monthly: the receivable file or on request any information which will
be deemed by IFN to be necessary to monitor the status of the
receivables transferred and this during the duration of this agreement
Article 13: Customer's Obligation
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o The Customer accepts the fact IFN has the right to audit its books at
any time and whenever this audit will be deemed necessary by IFN.
o The Customer warrants that the debt transferred to IFN are liquid,
certain and collectable and confirm the delivery of products and
services will not be challenged by its clients from a technical or
commercial standpoint
o When the Customer's activity implies the delivery of products, the
transfer of ownership to the clients should be made only at the time
of payment except if otherwise agreed by IFN
o The Customer will take appropriate steps to free IFN from any
liability resulting from the loss or the destruction of the goods
delivered to the client and more generally any liability resulting
from damages caused to a third party.
Article 14: Start of Contract, Duration and Termination
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This agreement will be effect for an unlimited period of time starting at the
date of signature by both parties.
Each party can terminate the contract at any time provided a three month notice
be given to the other party. Termination should be made in writing by registered
mail.
Except if otherwise accepted by IFN, the level of financing during the notice
period should not exceed the amount existing at the date of notification of the
termination.
IFN will be entitled to cancel the agreement without notice in the following
cases:
o Case of "force majeur" (fire, strike, destruction or impossibility for
IFN to continue its activities etc.)
o Substantial deterioration of the Customer's financial situation or
withdrawal of the warranties given to IFN
o Highly reprehensible Customer's behavior characterized by the
following facts:
o Lack of information to IFN, within five (5) working days,
concerning the modification of the company legal status, its
management or its commercial situation
o Irregularities in Customer's accounting or its handling of the
business
o Transfer to IFN of an unjustified receivable or a credit note
o Non transmission of the funds received directly by the Customer
and related to a debt transferred to IFN
o Overdraft on the Customer current account not resorbed as
stipulated in the article 8 of this agreement
o Lack of information as defined in chapter 12 of this agreement
o Impossibility for the Customer to fulfill its contractual
obligations
The termination of this agreement will not alienate IFN rights to collect the
outstanding receivables or the Customer to receive any amount due at the date of
termination.
Article 15: Transfer of the Agreement
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The benefit of the provisions of this agreement cannot be transferred, in all or
in part and whatever the form, to a third party without the prior consent of
IFN.
Article 16: Dispute
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Any dispute arising from the execution of this agreement, its interpretation or
its termination will be brought before the commercial court of Paris, the French
law being the only applicable law.
Signatures
ASSET FINANCING AGREEMENT
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CUSTOMER SPECIFIC CONDITIONS
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Name of the corporation: CXR SAS
Principal place of business: Rue de l'Ornette, 28410 Abondant
Identification : SIREN 785 754 706
Article 1: Scope of the contract
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Nature of the products: Manufacturing and sale of transmission equipment
Type of debtors: Corporate and state organizations
Territory: France, UK Belgium and Spain
Usual term of payment: 30 to 130 days
Maximum duration of the initial the ramp up period: 130 days
Article 2: Transfer of debts
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Periodicity: weekly
Justification to be supplied on first demand:
Invoices, purchase order, delivery slip
Article 3: Percentage and maximum financing
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- 80 % of approved receivables
- Maximum financing: 1.200.000 Euros
Financing for a given debtor should not exceed 10% of the total financing
Article 4: IFN Remuneration
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4-1 Fix Commission
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The following fix commission is agreed: 32.004 Euros per annum (before VAT)
This commission will be due whatever the duration of the agreement. It will be
renewed automatically from year to year at the anniversary date of the
agreement.
Payment will be made in twelve equal installments of 2.227 Euros each starting
at the signature of the agreement.
4-1 Financing Commission
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Financing will be charged using the T4M rate plus 1,6 point.
Financing in other currencies will be indexed to the IFN export rate.
Article 5: Other Charges
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Search and duplication of a document: no charge. IFN will reject all requests
for statements related to a period older than one year
Opening of dedicated bank account: 1.000 Euros
Request sent to Customer for a contractual document: 180 Euros per request
Article 6: Date of Effect
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For the invoicing, this agreement will be in effect starting at the date of
signature
Article 7: Security
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This agreement will be in effect on receipt of the joint and several guarantee
from:
- -Microtel Int'l Inc.
Article 8: Warranty Reserve
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- -Amount: 120;000 Euros
- -Build-up: 10 % of the transferred debts
Article 9: Miscellaneous
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- The customer agrees to produce its consolidated accounts for
fiscal year 2002 including the tax return and the auditors report
respectively before May 31,2003 and June 30,2003.
- The customer certifies he has not subscribed to a credit
insurance policy. As the consequence the provisions of the
article 10 are not applicable. However in the event the customer
decides to subscribe to such insurance policy at a later date, he
agrees to comply with the provisions of Article 10.
All prices quoted concerning commissions and other charges are exclusive of VAT.
They will be increased by the VAT 1rate when applicable.
Signatures