Back to Contents THIS AGREEMENT is made as of September 28, 2001 (as amended and restated on July 18, 2002 and on November 30, 2005) BETWEEN
Exhibit 4.14
THIS AGREEMENT is made as of September 28, 2001 (as amended and restated on July 18, 2002 and on
November 30, 2005)
BETWEEN
| (1) | XXXXXXXX SILVER US LLC, a limited liability company formed under the law of the State of Delaware whose registered office is at Corporate Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx and whose principal place of business is at 0 Xxxxxxxxxxxxx Xxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000 (the US Master Purchaser); |
| (2) | XXXXXXXX SILVER FINANCING, LLC, a limited liability company formed under the law of the State of Delaware whose registered office is at Corporate Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx and whose principal place of business is c/o Global Securitisation Services LLC, 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, New York, 10036 (the Silver Note Issuer); |
| (3) | SILVER FUNDING LIMITED, a public company incorporated with limited liability in Jersey (registered number 78721) whose registered office is at Whiteley Xxxxxxxx, Xxx Street, St Helier, Jersey, Channel Islands (the MTN Issuer and, together with the Silver Note Issuer and any other person that accedes to the terms of this Agreement from time to time pursuant to Clause 15, the Xxxxxxxx US Note Purchasers and each a Xxxxxxxx US Note Purchaser); |
| (4) | DEUTSCHE TRUSTEE COMPANY LIMITED (formerly known as Bankers Trustee Company Limited), a limited liability company incorporated in England and Wales (registered number 338230) whose registered office is at Xxxxxxxxxx Xxxxx, 0 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX acting as security agent under the US Master Purchaser Security Agreement (the Security Agent, which expression shall include such person and all other person or persons for the time being acting as the security agent or agents pursuant to the US Master Purchaser Security Agreement); |
| (5) | XXXXXXXX STAFDIENSTEN B.V., a limited liability company incorporated in The Netherlands whose registered office is at Xxxxxxxxxxxxx 00, 0000 XX Xxxxxxxxx Zuidoost, the Netherlands (the Master Servicer); and |
| (6) | XXXXXXXX N.V., a company incorporated in the Netherlands whose registered office is at Xxxxxxxxxxxxx 00, 0000 XX Xxxxxxxxx Zuidoost, the Netherlands (the Parent). |
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WHEREAS:
| (A) | The US Master Purchaser proposes from time to time to acquire Receivables, together with the benefit of the Ancillary Rights relating thereto, from the US Originators on the terms and subject to the conditions set out in the US Contribution Agreement. |
| (B) | The US Master Purchaser proposes to apply the proceeds from the issue of discounted Xxxxxxxx US Notes to the Xxxxxxxx US Note Purchasers from time to time in accordance with the terms of this Agreement to make distributions to the US Originators in respect of the Initial Purchase Price of the Securitised US Receivables in accordance with the terms of the LLC Agreement and the US Contribution Agreement. |
| (C) | In order to secure its obligations under, among other things, the Xxxxxxxx US Notes and this Agreement, the US Master Purchaser has granted security over certain of its assets and undertaking to the Security Agent for the benefit of the US Master Purchaser Secured Parties pursuant to the US Master Purchaser Security Agreement and the other US Master Purchaser Security Documents. |
IT IS AGREED as follows:
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| 4.2 Save as the MTN Issuer may otherwise agree, the US Master Purchaser may not issue the first Xxxxxxxx US Note Issue Notice to it hereunder until the MTN Issuer has notified the US Master Purchaser and the Security Agent that the conditions precedent set out in Clause 3(1) of the MTN Programme Agreement have been satisfied. |
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| (iii) | the Redemption Date of such Xxxxxxxx US Note. | |
| 5.3 Delivery of a Xxxxxxxx US Note Issue Notice pursuant to Clause 5.1 shall constitute an irrevocable offer by the US Master Purchaser binding upon it to issue the Xxxxxxxx US Notes described therein to the relevant Xxxxxxxx US Note Purchaser and a representation by the US Master Purchaser that (i) each of the statements set out in Schedule 4 to this Agreement is true as of the date of the Xxxxxxxx US Note Issue Notice, (ii) no US Stop Funding Event (or, for the avoidance of doubt, Early US Amortisation Event) has occurred and is continuing with respect to US dollars and (iii) no US Master Purchaser Event of Default or Potential US Master Purchaser Event of Default has occurred and is continuing. | ||
5.4 Upon delivery of a Xxxxxxxx US Note Issue Notice, if: |
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| (a) | the Xxxxxxxx US Note Issue Notice meets the requirements of Clause 5.2; | |
| (b) | in the case of any Xxxxxxxx US Note to be purchased by the Silver Note Issuer: | |
| (i) | the Face Value of the Xxxxxxxx US Notes then outstanding less the Silver Capital Contribution Amounts and the Estimated Funding Costs as calculated on the proposed Xxxxxxxx US Note Issue Date in respect of the relevant Xxxxxxxx US Note to be issued and assuming that such Xxxxxxxx US Note and any other Xxxxxxxx US Note proposed to be issued prior to such proposed Xxxxxxxx US Issue Date have in fact been so issued does not exceed the US Dollar Securitisation CP Limit as at such proposed Xxxxxxxx US Note Issue Date; and | |
| (ii) | the Silver Note Issuer will have available to it in cleared funds on the proposed Xxxxxxxx US Note Issue Date in respect of the relevant Xxxxxxxx US Note to be issued, the Silver Capital Contribution Amounts in US dollars from the Silver Parent in an aggregate amount sufficient to support the purchase by the Silver Note Issuer of the relevant Xxxxxxxx US Notes proposed to be issued to it and to maintain the Erasmus CP Notes issued by the CP Issuer at their then current rating, in each case subject to and in accordance with the terms of the Silver Note Purchase Agreement; | |
| (c) | in the case of any Xxxxxxxx US Note to be purchased by the MTN Issuer: | |
| (i) | after giving effect to the issue of the MTNs the proceeds of which are to be used to purchase the Xxxxxxxx US Notes, which are the subject of such Xxxxxxxx US Note Issue Notice, the MTN Programme Limit is not exceeded; | |
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| (ii) | the conditions precedent (other than the issue of such Xxxxxxxx US Notes) set out in the MTN Programme Agreement have been satisfied; and |
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| (iii) | the Xxxxxxxx US Note Issue Date and the maturity date of the Xxxxxxxx US Note to be issued are Interest Payment Dates; |
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| (d) | the Xxxxxxxx US Note Discount Rate in respect of the Xxxxxxxx US Note which is the subject of such Xxxxxxxx US Note Issue Notice is not less than the rate notified from time to time by such Xxxxxxxx US Note Purchaser to the US Master Purchaser having regard to that Xxxxxxxx US Note Purchaser’s Estimated Funding Costs; | |
| (e) | the Redemption Date of the Xxxxxxxx US Note proposed to be issued shall be no more than 183 days after the proposed Xxxxxxxx US Note Issue Date; |
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| (f) | no US Stop Funding Event (or, for the avoidance of doubt, Early US Amortisation Event) has occurred and is continuing, provided that this condition shall not apply in the case of the Silver Note Issuer if the Xxxxxxxx US Note proposed to be issued has the same or lesser Discounted Value as the Xxxxxxxx US Note held by the Silver Note Issuer being redeemed on the proposed Xxxxxxxx US Note Issue Date; | |
| (g) | no US Master Purchaser Event of Default or Potential US Master Purchaser Event of Default has occurred in respect of any Xxxxxxxx US Note on or prior to the proposed Xxxxxxxx US Note Issue Date in respect of which the relevant Xxxxxxxx US Note is to be issued; and | |
| (h) | the sum of the Subscription Prices of all Xxxxxxxx US Notes issued on the proposed Xxxxxxxx US Note Issue Date in respect of such Xxxxxxxx US Note is at least US$500,000, |
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| then the Xxxxxxxx US Note specified in the Xxxxxxxx US Note Issue Notice shall be issued to the relevant Xxxxxxxx US Note Purchaser in accordance with Clause 5.5, and the relevant Xxxxxxxx US Note Purchaser shall be required to purchase such Xxxxxxxx US Note. | ||
Registration of Xxxxxxxx US Notes
| 5.5(a) | The US Master Purchaser undertakes to, and covenants with each Xxxxxxxx US Note Purchaser and the Security Agent that, on the Xxxxxxxx US Note Issue Date, the US Master Purchaser will register or will cause to be registered such Xxxxxxxx US Note Purchaser as the Xxxxxxxx US Noteholder in the Register in respect of Xxxxxxxx US Notes issued to such Xxxxxxxx US Note Purchaser on such Xxxxxxxx US Note Issue Date, and as the sole person with a right to payments of principal of, and any stated interest on, such Xxxxxxxx US Notes. |
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| 7.3 Each Xxxxxxxx US Noteholder shall provide, at the time it becomes a Xxxxxxxx US Noteholder and, to the extent it is eligible to do so, from time to time upon written request of the US Master Purchaser, a US Internal Revenue Service Form W-9 or W-8BEN, as applicable, or such other documentation as is necessary to claim exemption from US withholding tax on payments of interest on the Xxxxxxxx US Notes. | |
| 7.4 If at any time the US Master Purchaser or any US Originator is required by law to pay to any governmental authority any Tax because of any Xxxxxxxx US Noteholder's failure to comply with the requirements described in Clause 7.3 or Clause 11.2(b) hereof, the Xxxxxxxx US Noteholder will pay to the US Master Purchaser, or the US Originator, upon demand, an amount which, after being reduced by any withholding Tax imposed on the receipt or accrual of such amounts, will put the US Master Purchaser or the US Originator in the same position had such Tax not been imposed. | |
| 7.5 Subject to Clause 7.6, if the US Master Purchaser is satisfied that, on the next date on which it is to make any payment in respect of a Xxxxxxxx US Note, it would be required by law to make any withholding or deduction on account of any Tax from any amounts payable to a Xxxxxxxx US Noteholder in respect of the Xxxxxxxx US Notes, the US Master Purchaser may, by giving not less than ten Business Days notice to such Xxxxxxxx US Noteholder and subject to satisfying the Security Agent that it will have the funds available to do so: | |
| (a) | prepay in full only all of the outstanding Xxxxxxxx US Notes; and |
| (b) | cancel the US Securitisation Facility. |
Any notice given by the US Master Purchaser pursuant to this Clause 7.5 shall be irrevocable. |
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| 7.6 On a prepayment of Xxxxxxxx US Notes pursuant to Clause 7.5(a) or on a cancellation of all or part of the US Dollar Securitisation CP Limit pursuant to Clause 2.3, the costs (if any) incurred by a Xxxxxxxx US Noteholder as a consequence of the early breakage, termination or reversing of any agreement entered into by such Xxxxxxxx US Noteholder for the purpose of fixing or otherwise hedging discount payable in respect of the Xxxxxxxx US Notes including any cost incurred in liquidating or re-employing funds from third parties acquired or contracted for in order to fund the subscription of Xxxxxxxx US Notes (breakage costs) shall be payable by the US Master Purchaser to such Xxxxxxxx US Noteholder for the period up to, but excluding, the Redemption Date of the Xxxxxxxx US Notes (or, in the case of a cancellation, for the US Securitisation CP Availability Period). To the extent that there are no such breakage costs, and the relevant Xxxxxxxx US Noteholder receives any additional amounts as a result of such prepayment (including, for the avoidance of doubt, any amount received by it under any agreement entered into by a Xxxxxxxx US Noteholder for the purpose of fixing or otherwise hedging discount payable in respect of the Xxxxxxxx US Notes), the relevant Xxxxxxxx US Noteholder shall pay such amounts to the US Master Purchaser so as to leave that Xxxxxxxx US Noteholder after that payment, in no better or worse position that it would have been if such prepayment had not taken place. | |
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CURRENCY OF ACCOUNT AND CURRENCY INDEMNITY
| (a) | Information: it will, as soon as practicable after receipt, deliver to the Security Agent, each Xxxxxxxx US Note Purchaser and the Rating Agencies all notices or other documents received by it under the Servicing Agreement or the US Contribution Agreement; |
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| (b) | Consents: it will promptly obtain, comply with the terms of and do all that is necessary and within its control to maintain in full force and effect all authorizations, approvals, licenses and consents required in or by the laws and regulations of any governmental or regulatory authority of any nation or any political subdivision thereof (whether state or local) applicable to it to enable it lawfully to enter into and perform its obligations under the Transaction Documents to which it is expressed to be a party; |
| (c) | Default: it will, promptly upon becoming aware of the same, inform each Xxxxxxxx US Note Purchaser and the Security Agent of the occurrence of any Stop Funding Event, US Master Purchaser Event of Default or Potential US Master Purchaser Event of Default or any Xxxxxxxx Termination Event or Potential Xxxxxxxx Termination Event and, upon receipt of a written request to that effect from a Xxxxxxxx US Note Purchaser or the Security Agent, confirm to that Xxxxxxxx US Note Purchaser and the Security Agent that, save as previously notified to that Xxxxxxxx US Note Purchaser and the Security Agent or as notified in such confirmation, no Stop Funding Event, US Master Purchaser Event of Default or Xxxxxxxx Termination Event or, to the best of its knowledge and belief, Potential US Master Purchaser Event of Default or Potential Xxxxxxxx Termination Event has occurred and is continuing; |
| (d) | No Employees or Premises: it will not have any employees or premises; |
| (e) | No Amendment to Transaction Documents: it will not make any amendment, variation or supplement to, or waive any material provision of, the Transaction Documents to which it is a party without the prior consent of the Security Agent and the Xxxxxxxx US Note Purchasers and unless such amendment, variation, supplement or waiver satisfies the Rating Condition; |
| (f) | Rights and Obligations under Transaction Documents: it will preserve its rights and perform each of its obligations under the Transaction Documents to which it is a party; |
| (g) | No Other Business: it will not carry out any business or activities or incur any liabilities other than those envisaged by the Transaction Documents; |
| (h) | Records: it will keep or procure the keeping of books of account and records and permit the Security Agent, and any person appointed by the Security Agent to whom (if when that person is appointed there is no continuing and unremedied US Master Purchaser Event of Default or Potential US Master Purchaser Event of Default) the US Master Purchaser has no reasonable objection, free access to them at any time upon reasonable notice during normal business hours; |
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| (i) | Accounts: it will prepare or cause to be prepared in respect of each financial year financial statements with respect to itself in accordance with generally accepted accounting principles, in the case of the US Master Purchaser, in the United States and, in the case of the Parent, in The Netherlands, have them audited by an internationally recognized firm of accountants and send a copy of the audited financial statements to each Xxxxxxxx US Note Purchaser and the Security Agent not later than 120 days after the end of that fiscal year; |
| (j) | Further Assurance: it will execute any further documents and do any acts and things which are within its power or control and execute and do anything further which is at any time necessary or desirable in the reasonable opinion of the Security Agent to give effect to this Agreement, the Xxxxxxxx US Note Conditions and the other Transaction Documents to which it is a party; |
| (k) | Notices: unless the Security Agent otherwise agrees in writing, it shall not publish or permit publication of any notice in relation to the Xxxxxxxx US Notes other than in accordance with this Agreement; |
| (l) | Meetings of Xxxxxxxx US Noteholders: it shall from time to time as required or contemplated by this Agreement or as reasonably requested by the Security Agent, make available such documents as may be required by the Xxxxxxxx US Noteholders in connection with meetings of Xxxxxxxx US Noteholders; |
| (m) | Conduct of business: it will carry on and conduct its affairs in accordance with this Agreement and the Xxxxxxxx US Note Conditions and the other Transaction Documents to which it is a party; |
| (n) | Cash Manager: it shall procure that at all times there shall be a Cash Manager in accordance with the Cash Management Agreement and a Master Servicer in accordance with the Servicing Agreement; |
| (o) | Performance of duties: it will give the Security Agent within a reasonable time after a written request any information and evidence reasonably required by the Security Agent to discharge its duties, trusts, powers, authorities and discretions under or pursuant to this Agreement, the Xxxxxxxx US Note Conditions or any of the Transaction Documents to which the Security Agent is a party or by operation of law; |
| (p) | US Master Purchaser Security Documents: it shall do such actions (including without limitation, filing appropriately completed and duly executed copies of Uniform Commercial Code financing statements) in order to perfect the security interests created pursuant to the US Master Purchaser Security Agreement. |
| (q) | Restrictions on disposals: it will not dispose of, or otherwise deal with, the US Master Purchaser Collateral or any part thereof without the consent of the Security Agent, except in accordance with the provisions of this Agreement, the Xxxxxxxx US Note Conditions or any other Transaction Document to which it is a party and, so far as it is within its power and control to do so, shall at all times comply with any direction given by the Security Agent (consistently with the Transaction Documents) in relation to the US Master Purchaser Collateral; |
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| (r) | Transactions on Arms’ Length: it will enter into transactions relating to Securitised US Receivables and other transactions contemplated by the Transaction Documents with other members of the Xxxxxxxx Group only on an arms’ length commercial basis; |
| (s) | Changes to the Xxxxxxxx Operating Procedures: it will not, without the prior consent of each Xxxxxxxx US Note Purchaser and the Security Agent (such consent not to be unreasonably withheld or delayed), agree to any changes to any of the Xxxxxxxx Operating Procedures which could reasonably be expected to have a Material Adverse Effect; |
| (t) | No Petition: it shall not take any steps for the purpose of procuring the appointment of a Receiver, Manager, bankruptcy trustee or similar insolvency official, or the making of an order for or instituting any insolvency, winding up, composition or any analogous proceedings under the laws of the United States or any other jurisdiction in respect of the US Master Purchaser or in respect of any of its liabilities whatsoever; |
| (u) | Restriction on Acceptance: it will not accept any Offer to Contribute in respect of any US Receivable if it has no discretion to accept such Offer to Contribute pursuant to Clause 3.2 of the US Contribution Agreement; |
| (v) | Receivables denominated in US dollars: it will only acquire or purchase US Receivables denominated in US dollars from the US Originators; |
| (w) | No Self-Funding: neither the Parent nor any other person related to the US Master Purchaser (within the meaning of Code Section 881(c)(3)(B) or (C)) will acquire notes or financing instruments from or otherwise lend to any Xxxxxxxx US Note Purchaser; |
| (x) | Indemnity Against Breach: it will indemnify and hold harmless each Xxxxxxxx US Noteholder and the Security Agent on an after Tax basis in an amount equal to any cost, claim, loss, expense, liability or damages (including legal costs and out-of-pocket expenses) properly incurred or otherwise suffered by it in connection with any breach by it of this Agreement or any of the other Transaction Documents and the US Master Purchaser shall on demand, but in accordance with Clauses 7.3 and 8.3 of the US Master Purchaser Security Agreement, pay to the Xxxxxxxx US Noteholders or the Security Agent, as the case may be, without any set-off, deduction or withholding whatsoever the amount of any such cost, claim, loss, expense, liability or damages so suffered or incurred; |
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| (y) | Rule 144A Information: At any time when the US Master Purchaser is neither subject to Section 13 or 15(d) of the United States Securities Exchange Act of 1934, as amended (the Exchange Act), nor exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, upon the request of any Xxxxxxxx US Note Purchaser, the US Master Purchaser shall promptly furnish or cause to be furnished such information as is specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) to such Xxxxxxxx US Note Purchaser or to a prospective purchaser of a Xxxxxxxx US Note from such Xxxxxxxx US Note Purchaser (as designated by such Xxxxxxxx US Note Purchaser), in order to permit compliance by such Xxxxxxxx US Note Purchaser with Rule 144A under the Securities Act in connection with the resale of such Xxxxxxxx US Note by such Xxxxxxxx US Note Purchaser; and |
| (z) | Maturity of the Xxxxxxxx US Notes: it will not issue any Xxxxxxxx US Notes under any circumstances unless each such Xxxxxxxx US Note issued matures within 183 days of its original issuance. |
Covenant of each Xxxxxxxx US Note Purchaser
11.2 Each Xxxxxxxx US Note Purchaser hereby covenants with the US Master Purchaser and the Security Agent that from the date of this Agreement or the date of its accession to this Agreement and until the Final US Securitisation Discharge Date:
| (a) | Sole Business: it will not carry on any business other than that of raising finance, lending the proceeds thereof to the US Master Purchaser and entering into certain ancillary transactions; and |
| (b) | Notes Offered: it has not issued and, for so long as it is a Xxxxxxxx US Noteholder, will not issue notes or financing instruments and otherwise has not borrowed and, for so long as it is a Xxxxxxxx US Noteholder, will not borrow money from any party under any and all circumstances unless each such issue of notes, instruments or borrowings (A) in the case of the MTN Issuer, are MTNs (x)(i) issued in bearer form solely in accordance with the MTN Programme Agreement, (ii) not issued (in whole or in part) pursuant to a separate loan agreement with or for the benefit of a bank and (iii) offered, sold, delivered and paid in compliance with the requirements of US Treasury Regulations Section 1.163-5(c)(1) and (c)(2)(i)(D) (the TEFRA D Rules) or (y) issued in registered form, or (B) in the case of any Xxxxxxxx US Note Purchaser other than the MTN Issuer and the Silver Note Issuer, are issued on terms mutually acceptable to the parties hereto and the US Originators. |
ROLL-OVER OF XXXXXXXX US NOTES
12. Notwithstanding any provision in the Xxxxxxxx US Note Conditions, if on any Redemption Date:
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| (a) | the US Master Purchaser owes any sum to a Xxxxxxxx US Note Purchaser in its capacity as a Xxxxxxxx US Noteholder in respect of the redemption of a Xxxxxxxx US Note (the Maturing Xxxxxxxx US Note); and |
| (b) | such Xxxxxxxx US Note Purchaser is obliged to subscribe for a further Xxxxxxxx US Note (the New Xxxxxxxx US Note) pursuant to the terms of this Agreement, |
then
| (i) | where the Face Value of the Maturing Xxxxxxxx US Note is equal to the Subscription Price for the New Xxxxxxxx US Note, the US Master Purchaser’s obligation to pay the sum referred to in Paragraph (a) above shall be discharged by way of set-off against the relevant Xxxxxxxx US Note Purchaser’s obligation to make any payment as referred to in Paragraph (b) above; or | |||
| (ii) | where the Face Value of the Maturing Xxxxxxxx US Note is greater than the Subscription Price for the New Xxxxxxxx US Note, sub-paragraph (i) above shall apply except in respect of the excess and (for the avoidance of doubt) the US Master Purchaser shall be obliged to pay to the relevant Xxxxxxxx US Note Purchaser an amount equal to the difference between such Face Value and such Subscription Price; or | |||
| (iii) | where the Face Value of the Maturing Xxxxxxxx US Note is less than the Subscription Price for the New Xxxxxxxx US Note, sub-paragraph (i) above shall apply and (for the avoidance of doubt) the relevant Xxxxxxxx US Note Purchaser shall be obliged to pay to the US Master Purchaser an amount equal to the difference between such Face Value and such Subscription Price, | |||
| and accordingly, upon due registration in the register of Xxxxxxxx US Notes in respect of the New Xxxxxxxx US Note and (in any case falling within sub-paragraph (ii) and (iii) above) upon payment of the amount therein referred to: | ||||
| (A) | the US Master Purchaser’s obligation (pursuant to the Xxxxxxxx US Note Conditions) to pay the Face Value of the Maturing Xxxxxxxx US Note, upon redemption thereof, to the relevant Xxxxxxxx US Note Purchaser (as Xxxxxxxx US Noteholder); and | |||
| (B) | the relevant Xxxxxxxx US Note Purchaser’s obligation (pursuant to Clause 5.6) to pay the Subscription Price for the New Xxxxxxxx US Note to the US Master Purchaser | |||
shall be satisfied in full.
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13. If after the US Closing Date, the Silver Note Issuer is charged any fee, expense or increased cost on account of any other party to any of the Silver Transaction Documents having determined that a Relevant Change has or would have the effect of reducing the rate of return on such party’s (or such party’s holding company’s) capital as a consequence of such party’s obligations under any of the Transaction Documents to a level below that which such party would have achieved but for such Relevant Change, then, the US Master Purchaser shall, within 5 Business Days of demand by the Silver Note Issuer indemnify the Silver Note Issuer on an after tax basis in full for each such amount.
14. The Security Agent is a party to this Agreement for the purposes only of taking the benefit of the rights but not the obligations of the US Master Purchaser in respect of this Agreement, for receiving notices in accordance with Clause 7 of the Framework Deed and for regulating the agreement of amendments to this Agreement. The Security Agent assumes no obligations under this Agreement.
APPOINTMENT OF ADDITIONAL XXXXXXXX US NOTE PURCHASERS
| 15. | (a) | The US Master Purchaser may at any time appoint one or more additional Xxxxxxxx US Note Purchasers upon the terms of this Agreement. Any appointment shall be made by: | |
| (i) | the delivery by the additional Xxxxxxxx US Note Purchaser to the US Master Purchaser of a Xxxxxxxx US Note Purchaser Accession Letter substantially in the form set out in Part I of Schedule 5; and | ||
| (ii) | the delivery by the US Master Purchaser to the additional Xxxxxxxx US Note Purchaser of a Confirmation Letter substantially in the form set out in Part II of Schedule 5, | ||
| provided that no additional Xxxxxxxx US Note Purchaser may be appointed hereunder unless (A) the Rating Condition is satisfied and (B) the existing Xxxxxxxx US Note Purchasers consent to such appointment. | |||
| (b) | Upon receipt of the Xxxxxxxx US Note Purchaser Accession Letter and upon satisfaction of the Rating Condition and the consent of the existing Xxxxxxxx US Noteholders, each Xxxxxxxx US Note Purchaser shall, subject to the terms of the Xxxxxxxx US Note Purchaser Accession Letter, become a party to this Agreement, vested with all authority, rights, powers, duties and obligations of a Xxxxxxxx US Note Purchaser as if originally named as a Xxxxxxxx US Note Purchaser under this Agreement. | ||
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| (c) | The US Master Purchaser shall promptly notify the other Xxxxxxxx US Note Purchasers, the Security Agent, the Master Servicer, the Rating Agencies and the Parent of any appointment of an additional Xxxxxxxx US Note Purchaser by supplying to them a copy of any Xxxxxxxx US Note Purchaser Accession Letter and a related Confirmation Letter substantially in the form set out in Part II of Schedule 5. |
16. Each communication to be made under this Agreement shall (except where expressly permitted otherwise) be made in accordance with Clause 7 of the Framework Deed.
17.1 No recourse under any obligation, covenant, or agreement of the US Master Purchaser contained in this Agreement or any Xxxxxxxx US Note shall be held against any shareholder, officer or director of the US Master Purchaser as such, by the enforcement of any assessment or by any proceeding, by virtue of any statute or otherwise, it being expressly agreed and understood that each of this Agreement and each Xxxxxxxx US Note is a corporate obligation of the US Master Purchaser, and no personal liability shall attach to or be incurred by the shareholders, officers, agents, employees or directors of the US Master Purchaser as such, or any of them, under or by reason of any of the obligations, covenants or agreements of the US Master Purchaser contained in this Agreement, or any Xxxxxxxx US Note, or implied therefore, and that any and all personal liability for breaches by such party of any such obligations, covenants or agreements, either at law or by statute or constitution, of every such shareholder, officer, agent, employee or director is hereby expressly waived by the other parties as a condition of and consideration for the execution of this Agreement.
17.2 Each Xxxxxxxx US Note Purchaser hereby agrees with the US Master Purchaser (acting in any capacity whatsoever) that they shall not:
| (i) | take any corporate action or other steps or legal proceedings for the winding-up, dissolution or reorganization or for the appointment of a receiver, administrator, administrative receiver, trustee, liquidator, sequestrator or similar officer of the US Master Purchaser or of its revenues and assets (other than as permitted by the US Master Purchaser Security Documents); or | |
| (ii) | take any steps for the purpose of obtaining payment of any amounts payable to it under this Agreement or any Xxxxxxxx US Note by the US Master Purchaser and shall not take any steps to recover any debts whatsoever owing to it by the US Master Purchaser (other than in accordance with the US Master Purchaser Security Documents). |
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18. Nothing in this Agreement shall be construed to create in any person not a party to this Agreement any rights, duties or obligations.
GOVERNING LAW; JURISDICTION; ETC
| 19. | (a) | Governing Law. This Agreement shall be construed in accordance with, and all matters arising out of or relating in any way to this Agreement shall be governed by, the law of the State of New York. | |
| (b) | Submission to Jurisdiction. The parties hereto hereby irrevocably and unconditionally submit, for themselves and their property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in the Borough of Manhattan and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. | ||
20. This Agreement shall terminate upon the later to occur of (i) the date that is the last day of the US Securitisation Availability Period, (ii) the last day of any period specified in any Xxxxxxxx US Note Purchaser Accession Letter and (iii) indefeasible payment or discharge in full of all Xxxxxxxx US Notes outstanding, all other US Master Purchaser Secured Obligations and any and all amounts due and payable in connection therewith or hereunder.
21. No amendment, modification or waiver in respect of this Agreement will be effective unless in writing (including a writing evidenced by a facsimile transmission) and executed by each of the parties or confirmed by an exchange of electronic messages on an electronic messaging system.
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In Witness whereof the parties hereto have executed and delivered this amended and restated Agreement as of November 30, 2005.
XXXXXXXX SILVER US LLC
| By | |
| Name: | |
| Title: |
XXXXXXXX SILVER FINANCING, LLC
| By | |
| Name: | |
| Title: |
SILVER FUNDING LIMITED
| By | |
| Name: | |
| Title: |
DEUTSCHE TRUSTEE COMPANY LIMITED
| By | |
| Name: | |
| Title: |
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XXXXXXXX STAFDIENSTEN B.V.
| By | |
| Name: | |
| Title: |
XXXXXXXX N.V.
| By | |
| Name: | |
| Title: |
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SCHEDULE 1
Form of Xxxxxxxx US Note Issue Notice
| From: | Xxxxxxxx Silver US LLC |
| To: | Name of relevant Xxxxxxxx US Note Purchaser |
Dear Sirs,
| 1. | We refer to the note purchase agreement (the US Master Purchaser Funding Agreement) dated September 28, 2001 as amended and restated on July 18, 2002 and on November 30, 2005 and made between the US Master Purchaser, the Silver Note Issuer, the MTN Issuer, the Security Agent, Xxxxxxxx Stafdiensten B.V. and Xxxxxxxx N.V. Terms defined in, or incorporated by reference into, the US Master Purchaser Funding Agreement shall have the same meanings herein as therein. |
| 2. | We hereby give you notice, pursuant to Clause 5.1 of the US Master Purchaser Funding Agreement, that we intend to issue a Xxxxxxxx US Note under the US Master Purchaser Funding Agreement as follows: |
information to be specified for each Xxxxxxxx US Note requested
| (a) | Xxxxxxxx US Note Issue Date: / / |
| (b) | Face Value: US$ / / |
| (c) | Subscription Price: / / |
| (d) | Maturity Date: / / |
| 3. | We confirm that: |
| (i) | no Stop Funding Event, US Master Purchaser Event of Default or Potential US Master Purchaser Event of Default has occurred which remains in effect; |
| (ii) | each of the representations and warranties set out in Schedule 4 to the US Master Purchaser Funding Agreement is true and accurate; and |
| (iii) | the proceeds of the issuance of each Xxxxxxxx US Note requested hereby will be applied to fund distributions in accordance with the LLC Agreement. |
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Yours faithfully
XXXXXXXX SILVER US LLC
| By | |
| Name: | |
| Title: |
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SCHEDULE 2
Form of Xxxxxxxx US Note Certificate
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION, AND MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (A QUALIFIED INSTITUTIONAL BUYER) WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (RULE 144A) PURCHASING FOR ITS OWN ACCOUNT, TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144A OR (2) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (REGULATION S) AND (B) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY RELEVANT JURISDICTION.
SERIAL NO.
XXXXXXXX SILVER US LLC
a Delaware limited liability company
(the US Master Purchaser)
US$
Secured Zero Coupon Note due / / (the Redemption Date)
This secured zero coupon note (the Xxxxxxxx US Note) is issued by the US Master Purchaser subject to, and with the benefit of, the attached terms and conditions (the Xxxxxxxx US Note Conditions). Terms used herein have the respective meanings specified in the Xxxxxxxx US Note Conditions.
THIS IS TO CERTIFY that [ ___________ ] is the registered holder (the Xxxxxxxx US Noteholder) of this Xxxxxxxx US Note, the face value of which is US$FIGURES (WORDS US dollars) (the Face Value).
For value received, the US Master Purchaser, subject to and in accordance with the Xxxxxxxx US Note Conditions, promises to pay to the registered holder of this Xxxxxxxx US Note on the Redemption Date the Face Value in the manner specified in the Xxxxxxxx US Note Conditions.
The Xxxxxxxx US Note is in registered form and is not transferable in part.
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AS WITNESS the signature of a duly authorized officer on behalf of the US Master Purchaser.
XXXXXXXX SILVER US LLC
Name:
Title:
ISSUED as of Xxxxxxxx US Note Issue Date
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FORM OF XXXXXXXX US NOTE TRANSFER
For value received .............................................................................................................. (the Transferor) hereby transfer(s) to
.....................................................................................................................................................................................................
....................................................................................................................................................................................(the Transferee)
(Please print or type name and address of Transferee)
this Xxxxxxxx US Note (being US$ ...................................... in Face Value) and all rights hereunder, hereby irrevocably constituting and appointing ....................................... as attorney to transfer such Xxxxxxxx US Note in the Register maintained by or on behalf of the US Master Purchaser with full power of substitution.
By its transfer hereof, the Transferor represents that it is transferring this Xxxxxxxx US Note, and has offered this Xxxxxxxx US Note for transfer only (i) to a person whom the Transferor reasonably believes is a Qualified Institutional Buyer purchasing this Xxxxxxxx US Note for its own account, to whom notice is given that such transfer is being made in reliance on the exemption from registration under the Securities Act provided by Rule 144A, or (ii) to a non-U.S. person acquiring this Xxxxxxxx US Note for its own account or for the account or benefit exclusively of non U.S. persons outside the United States in an offshore transaction in compliance with Regulation S.
Signature(s) of Transferor ....................................
....................................
We hereby accept this Xxxxxxxx US Note (being $ ......................................... in Face Value) and agree to be bound by the Xxxxxxxx US Note Conditions of this Xxxxxxxx US Note. By its acquisition hereof, the Transferee represents that it is either (i) a Qualified Institutional Buyer purchasing this Xxxxxxxx US Note for its own account, or (ii) it is a non-U.S. person acquiring this Xxxxxxxx US Note for its own account or for the account or benefit exclusively of non-U.S. persons outside the United States in an offshore transaction in compliance with Regulation S.
Signature(s) of Transferee ....................................
....................................
Xxxxxxxx Silver US LLC hereby approves the transfer.
Signature of Xxxxxxxx Silver US LLC ....................................
Date: ....................................
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The US Registrar hereby approves the transfer.
Signature of US Registrar ....................................
Date: ....................................
N.B.:
1. This form of transfer must be accompanied by such documents, evidence and information as may be required pursuant to the Xxxxxxxx US Note Conditions.
2. This form of transfer must be executed under the hand of the Transferor and the Transferee or, if the Transferee is a corporation, either under its common seal or under the hand of two of its officers duly authorized in writing and, in such latter case, the document so authorizing such officers must be delivered with the form of transfer.
3. This transfer will be subject to the payment by the Transferor of any stamp duty, tax or other governmental charge as is referred to in Condition 2.3.
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SCHEDULE 3
Terms and Conditions of the Xxxxxxxx US Notes
The following is the text of the terms and conditions of the Xxxxxxxx US Notes which (subject to completion and amendment) will be attached to each Xxxxxxxx US Note Certificate.
The Secured Zero Coupon Notes (the Xxxxxxxx US Notes) of Xxxxxxxx Silver US LLC (the US Master Purchaser) are issued pursuant to the US Master Purchaser Funding Agreement (the US Master Purchaser Funding Agreement) dated 28 September 2001 (the US Closing Date) as amended and restated on July 18, 2002 and November 30, 2005 (as the same may be further amended, restated or supplemented from time to time) and made between the US Master Purchaser, Xxxxxxxx Silver Financing, LLC (the Silver Note Issuer), Silver Funding Limited (the MTN Issuer), Xxxxxxxx Stafdiensten B.V. (the Master Servicer), Xxxxxxxx N.V. (the Parent) and
Deutsche Trustee Company Limited (the Security Agent). These terms and conditions (the Xxxxxxxx US Note Conditions) are, in certain provisions, summaries of the US Master Purchaser Funding Agreement and subject to its detailed terms and, in the event of any inconsistency between the Xxxxxxxx US Note Conditions and the US Master Purchaser Funding Agreement, the terms of the US Master Purchaser Funding Agreement shall prevail. The Xxxxxxxx US Noteholders (as defined below) are bound by, and are deemed to have notice of, all the provisions of the US Master Purchaser Funding Agreement applicable to them.
The obligations of the US Master Purchaser under the Xxxxxxxx US Notes are secured in favor of the Security Agent for itself and the registered holder of this Xxxxxxxx US Note pursuant to the terms of a guarantee and security agreement (the US Master Purchaser Security Agreement) dated as of September 28, 2001 as amended and restated on July 18, 2002 and November 30, 2005 (as the same may be further amended, restated or supplemented from time to time) and made between (among others) the US Master Purchaser and the Security Agent. A copy of the US Master Purchaser Funding Agreement, the US Master Purchaser Security Agreement and the Master Definitions and Framework Deed (as defined below) is available for inspection by the Xxxxxxxx US Noteholders at the specified office of the US Registrar (as defined below) during normal business hours Monday to Friday (excluding public holidays).
Unless otherwise defined herein, terms used herein have the meanings ascribed to them in the US Master Purchaser Funding Agreement or in the master definitions and framework deed (the Master Definitions and Framework Deed) dated September 27, 2000 as amended and restated on the US Closing Date and July 18, 2002 and November 30, 2005 (as the same may be further amended, restated or supplemented from time to time) between, among others, the Silver Note Issuer, the US Master Purchaser, the Security Agent and the US Originators.
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1. Form, Denomination and Title
1.1 The Xxxxxxxx US Notes are issued in registered form and are serially numbered.
1.2 The US Master Purchaser (in such capacity, the US Registrar) will keep, at its offices, a register (the Register) on which shall be entered the names and addresses of the holders of the Xxxxxxxx US Notes and the particulars of the Xxxxxxxx US Notes held by them.
1.3 Title to the Xxxxxxxx US Notes, including the right to the principal of, and stated interest on, the Xxxxxxxx US Notes, will pass by and upon registration of transfers in the Register. In these Xxxxxxxx US Note Conditions the holder of a Xxxxxxxx US Note means the person in whose name such Xxxxxxxx US Note is for the time being registered in the Register (or, in the case of a joint holding, the first named thereof) and Xxxxxxxx US Noteholder shall be construed accordingly. A certificate (each a Xxxxxxxx US Note Certificate) may be issued to a Xxxxxxxx US Noteholder in respect of its registered holding upon written request therefor from the relevant Xxxxxxxx US Noteholder (or the Security Agent on its behalf). Registration of ownership of a Xxxxxxxx US Note shall be conclusive evidence (in the absence of manifest error) of absolute ownership of a Xxxxxxxx US Note.
2. Transfers of Xxxxxxxx US Notes
2.1 Transfers
Subject to Xxxxxxxx US Note Condition 2.4 below, a Xxxxxxxx US Note may be transferred in whole (but not in part) upon delivery of an instrument of transfer and, if any Xxxxxxxx US Note Certificate was delivered to the Transferor in respect of such Xxxxxxxx US Note, surrender of such Xxxxxxxx US Note Certificate at the specified office of the US Registrar, with the form of transfer endorsed on the Xxxxxxxx US Note Certificate duly completed and signed by or on behalf of the Transferor, together with such evidence as the US Registrar may reasonably require to prove:
| (i) | the title of the Transferor; |
| (ii) | the authority of the individuals who have executed the form of transfer; and |
| (iii) | that either (A) the Transferee is a Qualified Institutional Buyer, acquiring such Xxxxxxxx US Note for its own account, or (B) the Transferee is not a U.S. person (as defined in Regulation S) and is acquiring such Xxxxxxxx US Notes for its own account or for the account or benefit exclusively of non-U.S. persons outside the United States in an offshore transaction (as defined in Regulation S) in compliance with Regulation S, provided that no Xxxxxxxx US Note may be transferred to any Person other than the MTN Security Trustee or the Silver Security Agent without the prior written consent of the US Master Purchaser (such consent not to be unreasonably withheld). |
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2.2 Registration and delivery of a Xxxxxxxx US Note Certificate
Within five Business Days of the delivery of an instrument of transfer and any other documentation required pursuant to Xxxxxxxx US Note Condition 2.1 above (or such longer period as may be required to comply with any applicable fiscal or other laws or regulations), the US Registrar will register the transfer in question and deliver, if requested, at the US Registrar’s specified office a new Xxxxxxxx US Note Certificate with the same Face Value as the Xxxxxxxx US Note being transferred to the Transferee or (at the request, cost and risk of the Transferee) send by uninsured first class mail to such address as the Transferee may specify for the purpose. Prior to the due presentment for registration of transfer of any Xxxxxxxx US Note, the Xxxxxxxx US Master Purchaser shall deem and treat the person in whose name any Xxxxxxxx US Note Certificate is registered as the absolute owner and holder of such Xxxxxxxx US Note for the purpose of receiving payment of all amounts payable with respect to such Xxxxxxxx US Note and for all other purposes, and neither the Xxxxxxxx US Master Purchaser nor any Xxxxxxxx US Note Purchaser will be affected by any notice to the contrary.
2.3 No Charge
Xxxxxxxx US Noteholders will not be required to bear the costs and expenses of effecting any registration of transfer or any exchange as provided above, except for any costs or expenses of delivery other than by regular mail and except that the US Master Purchaser will require the payment by a Xxxxxxxx US Noteholder of a sum sufficient to cover any tax, duty or other governmental charge that may be imposed in relation to the registration or exchange.
2.4 Closed Periods
No Xxxxxxxx US Noteholder may require transfers to be registered during the period of five Business Days ending on the due date for any payment of principal in respect of any Xxxxxxxx US Note.
2.5 Initial US Registrar
The name of the initial US Registrar and its initial specified office are set out at the end of these Xxxxxxxx US Note Conditions. The US Master Purchaser reserves the right at any time with the consent of the Security Agent to vary or terminate the appointment of the US Registrar and to appoint another US Registrar. Notice of any termination or appointment and of any changes in specified offices will be given to the Xxxxxxxx US Noteholders promptly by the US Master Purchaser in accordance with Xxxxxxxx US Note Condition 15.
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2.6 Legend
All Xxxxxxxx US Note Certificates will bear a legend substantially to the following effect:
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION, AND MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (A QUALIFIED INSTITUTIONAL BUYER) WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (RULE 144A) PURCHASING FOR ITS OWN ACCOUNT, TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144A OR (2) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (REGULATION S) AND (B) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY RELEVANT JURISDICTION.
3. Status
The Xxxxxxxx US Notes are direct, unconditional and secured obligations of the US Master Purchaser and shall at all times rank pari passu and without any preference or priority among themselves.
4. Security
The payment of amounts payable by the US Master Purchaser under or pursuant to the Xxxxxxxx US Notes is secured by a first priority security interest over certain assets of the US Master Purchaser in favor of the Security Agent for the benefit of the US Master Purchaser Secured Parties pursuant to the provisions of the US Master Purchaser Security Documents.
5. Restrictions
Save with the prior written consent of the Security Agent (which may be given only with the consent of the Xxxxxxxx US Noteholders), the US Master Purchaser shall not, prior to the Final US Securitisation Discharge Date, or unless otherwise provided in or envisaged by these Xxxxxxxx US Note Conditions or the Transaction Documents:
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| (a) | Restrictions on amendment of Limited Liability Company Agreement | |
| other than to the extent required by statute, amend, supplement or otherwise modify its LLC Agreement or other constitutional documents; | ||
| (b) | Negative pledge | |
| create or permit to subsist any encumbrance (unless arising by operation of law) or other security interest whatsoever over any of its assets or undertaking; | ||
| (c) | Restrictions on activities | |
| (i) | engage in any activity whatsoever which is not incidental to or necessary in connection with any of the activities in which the Transaction Documents provide or envisage that the US Master Purchaser will engage; or | |
| (ii) | have any subsidiaries or any employees or premises; | |
| (d) | Disposal of assets | |
| transfer, sell, lend, part with or otherwise dispose of, or deal with, or grant any option or present or future right to acquire any of its assets or undertakings or any interest, estate, right, title or benefit therein; | ||
| (e) | Dividends or distributions | |
| pay any dividend or make any other distribution to its shareholders or issue any further shares except in accordance with the LLC Agreement; | ||
| (f) | Borrowings | |
| incur any indebtedness in respect of borrowed money whatsoever or give any guarantee in respect of indebtedness or of any other obligation of any person; | ||
| (g) | Merger | |
| consolidate or merge with any other person or convey or transfer its properties or assets substantially as an entirety to any other person; | ||
| (h) | No variation or waiver | |
| permit any of the Transaction Documents to which it is a party to become invalid or ineffective, or the priority of the security interests created or evidenced thereby or pursuant hereto to be varied or consent to any variation of, or exercise any powers of consent or waiver pursuant to the terms of any of the Transaction Documents to which it is a party, or permit any party to any of the Transaction Documents to which it is a party to be released from its obligations; or | ||
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| (i) |
Bank accounts |
| have an interest in any bank account other than the US Master Purchaser Accounts, unless such account or interest therein is pledged to the Security Agent on terms acceptable to it; or | |
| (j) | Maturity of the Xxxxxxxx US Notes: |
issue any Xxxxxxxx US Notes under any circumstances unless each Xxxxxxxx US Note issued matures within 183 days of its original issuance. |
|
6. No Interest |
|
| The Xxxxxxxx US Notes do not bear interest, provided that if the US Master Purchaser does not pay in full all amounts due in respect of a Xxxxxxxx US Note, interest will accrue from the Redemption Date of such Xxxxxxxx US Note on the Face Value thereof (or unpaid part thereof) at the rate per annum which is equal to the Estimated Funding Costs of the relevant Xxxxxxxx US Noteholder, as recalculated on each subsequent Calculation Date (after as well as before judgment) until payment in full has been made. | |
7. Redemption and Purchase
7.1 Final redemption
Unless previously redeemed, each Xxxxxxxx US Note will be redeemed at its Face Value on its Redemption Date.
7.2 Optional redemption for taxation reasons
If the US Master Purchaser is satisfied immediately prior to the giving of the notice referred to below that on the next date on which the US Master Purchaser is to make any payment in respect of the Xxxxxxxx US Notes, the US Master Purchaser would be required to deduct or withhold from any such payment any amount for, or on account of, any Taxes, then the US Master Purchaser may, having given not less than 10 Business Days’ notice to the Security Agent and the Xxxxxxxx US Noteholders in accordance with Xxxxxxxx US Note Condition 15, and subject to satisfying the Security Agent that it will have the funds available to do so, redeem all (but not some only) of the Xxxxxxxx US Notes at their Face Value.
7.3 Purchase
The US Master Purchaser may not purchase Xxxxxxxx US Notes.
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7.4 Cancellation
All Xxxxxxxx US Notes redeemed in full by the US Master Purchaser pursuant to this Xxxxxxxx US Note Condition 7 shall be cancelled forthwith and may not be reissued or resold.
7.5 Other redemption
The US Master Purchaser may not redeem the Xxxxxxxx US Notes or any of them, except in accordance with the provisions of this Xxxxxxxx US Note Condition 7, but without prejudice to Xxxxxxxx US Note Condition 10.
8. Payments
Payments in respect of each Xxxxxxxx US Note will be made on the relevant Redemption Date to the holder (or to the first named of joint holders) of the Xxxxxxxx US Note appearing on the Register at the close of business on the date (Record Date) being the fifth Business Day before the relevant Redemption Date at its address shown on the Register on the Record Date. The payment shall be made by transfer on such Redemption Date to such account maintained by the payee with a bank as has previously been notified to the specified office of the US Registrar before the due date for payment. Payments in respect of the Xxxxxxxx US Notes are subject in all cases to any fiscal or other laws and regulations applicable thereto in the place of payment.
9. Taxation |
|
| (a) | Except as set forth in Section 7.1 of the US Master Purchaser Funding Agreement, all payments in respect of the Xxxxxxxx US Notes by the US Master Purchaser shall be made without withholding or deduction for, or on account of, Tax unless and to the extent required by law. Where any such withholding or deduction is required by law in relation to any such payment, such payment shall be increased to the extent necessary to ensure that, after such withholding or deduction, the Xxxxxxxx US Noteholder receives and retains (free from any liability in respect of any such deduction or withholding) an amount equal to the amount it would have received and retained had no such withholding or deduction been made or required to be made. |
| (b) | In accordance with Section 7.3 of the US Master Purchaser Funding Agreement, each Xxxxxxxx US Noteholder, to the extent it is eligible to do so, shall provide, at the time it becomes a Xxxxxxxx US Noteholder and from time to time upon written request of the US Master Purchaser, a US Internal Revenue Service Form W-9 or W-8BEN, as applicable, or such other documentation as is necessary to claim exemption from US withholding tax on payments of interest on the Xxxxxxxx US Notes. |
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| 10. | US Master Purchaser Events of Default | ||
| (a) | Any of the following events shall constitute a US Master Purchaser Event of Default: | ||
| (i) | Non-Payment: default is made in the payment of any sum due in respect of the Xxxxxxxx US Notes (having given effect to the operation of Clause 12 of the US Master Purchaser Funding Agreement), provided that the failure to pay the Discounted Value of any Xxxxxxxx US Note during the continuation of a US Stop Funding Event shall not constitute a US Master Purchaser Event of Default and such Discounted Value shall remain due and payable; | ||
| (ii) | Breach of Obligations – Xxxxxxxx US Notes: the US Master Purchaser is in breach of any of its other obligations under the Xxxxxxxx US Notes or these Xxxxxxxx US Note Conditions and such failure continues unremedied for a period of 5 Business Days; | ||
| (iii) | Breach of Obligations – Transaction Documents: the US Master Purchaser fails duly to perform or observe its obligations under the US Master Purchaser Funding Agreement or any of the other Transaction Documents to which it is a party; | ||
| (iv) | Insolvency: the US Master Purchaser takes or threatens to take any corporate action or other steps are taken (whether out of court or otherwise) or legal proceedings are started for its bankruptcy, liquidation, suspension of payments, controlled management, winding-up or dissolution, administration or reorganization or for the appointment of a liquidator, receiver, administrator, administrative receiver, conservator, custodian or similar officer of it or any or all of its revenues and assets; | ||
| (v) | Composition: the US Master Purchaser commences negotiation with any one or more of its creditors with a view to the general readjustment or rescheduling of its indebtedness or makes a general assignment for the benefit of or a composition with its creditors; and/or | ||
| (vi) | Proceedings: any material litigation, arbitration, administrative proceedings or governmental or regulatory investigations, proceedings or disputes are commenced against the US Master Purchaser or its assets or revenues. | ||
| (b) | Covenant of the US Master Purchaser | ||
| So long as any amount remains outstanding under the Xxxxxxxx US Notes, the US Master Purchaser will forthwith upon becoming aware of any US Master Purchaser Event of Default or Potential US Master Purchaser Event of Default give immediate notice in writing thereof to the Xxxxxxxx US Noteholders and the Security Agent together, with details of the steps which the US Master Purchaser is taking or proposing to take to remedy such US Master Purchaser Event of Default or Potential US Master Purchaser Event of Default. | |||
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| (c) | Effect of a US Master Purchaser Event of Default | ||
| On the occurrence of a US Master Purchaser Event of Default then, in any such case and at any time thereafter, the Security Agent may (at its sole discretion and shall if instructed by the holders of at least 25 per cent. in Face Value of the Xxxxxxxx US Notes then outstanding) by written notice to the US Master Purchaser (a US Master Purchaser Enforcement Notice) declare the Face Value of the Xxxxxxxx US Note(s) to be immediately due and payable (whereupon the same shall become so payable together with any other sums then owed by the US Master Purchaser hereunder). | |||
| 11. | Enforcement | ||
| 11.1 | At any time after the service of a US Master Purchaser Enforcement Notice and without prejudice to its rights of enforcement in relation to the US Master Purchaser Security Documents, the Security Agent may, at its discretion and without further notice, pursuant to the US Master Purchaser Security Agreement take such proceedings against the US Master Purchaser as it may think fit to enforce payment in respect of the Xxxxxxxx US Notes, but it shall not be bound to take any such proceedings unless: | ||
| (i) | it shall have been requested in writing by the holders of at least 25 per cent. in aggregate of the Face Value of the Xxxxxxxx US Notes; and | ||
| (ii) | it shall have been indemnified to its satisfaction. | ||
| 11.2 | Only the Security Agent may pursue the remedies available under the US Master Purchaser Security Documents and no US Master Purchaser Secured Party is entitled to pursue such remedies unless the Security Agent, having become bound to proceed fails to do so within a reasonable period and such failure shall be continuing provided that, if the Security Agent shall have been directed or requested or required to take action in accordance with Condition 11.1(i), but shall not have been indemnified to its satisfaction and shall not accordingly have taken the relevant action, the holders of at least 50 per cent. of the Face Value of the Xxxxxxxx US Notes for the time being outstanding may proceed against the US Master Purchaser. | ||
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| 12. | Prescription | ||
| The Xxxxxxxx US Notes will become void unless presented for payment within a period of two years from the relevant Redemption Date. | |||
| 13. | US Registrar | ||
| The US Registrar will act solely as agent of the US Master Purchaser and will not otherwise assume any obligation or duty or relationship of agency or trust to or with the Xxxxxxxx US Noteholders unless a US Master Purchaser Event of Default has occurred, when it will act as agent of the Security Agent. Such agreement may be amended by the parties thereto with the prior written approval of the Security Agent subject to its obtaining the consent of the Xxxxxxxx US Noteholders. | |||
| 14. | Replacement of Xxxxxxxx US Note Certificates | ||
| If any Xxxxxxxx US Note Certificate is mutilated, defaced, stolen, destroyed or lost, it may be replaced at the specified office of the US Registrar on payment by the claimant of such costs and expenses as may be incurred in connection therewith and on such terms as to evidence, indemnity and security as the US Master Purchaser may reasonably require. Mutilated or defaced Xxxxxxxx US Notes must be surrendered before replacements will be issued. | |||
| 15. | Notices | ||
| 15.1 | All notices to Xxxxxxxx US Noteholders will be valid if sent by courier, by pre-paid recorded delivery or registered mail or by facsimile to the holders (or to the first named of joint holders) of the Xxxxxxxx US Notes at the addresses or facsimile numbers shown on the Register or at any other addresses or facsimile numbers they may notify to the US Registrar. | ||
| 15.2 | Any such notice shall be deemed to have been given | ||
| (i) | in the case of facsimile transmission or by hand delivery, upon receipt in legible form; and | ||
| (ii) | in the case of mail, when it would be received in the ordinary course of mail delivery. | ||
| 16. | Modification and Xxxxxxxx US Noteholders’ Resolutions | ||
| (a) | Modification | ||
| Any modification to these Xxxxxxxx US Note Conditions shall be agreed in writing between the US Master Purchaser and Xxxxxxxx US Noteholders holding at least 75 per cent. in aggregate of the Face Value of the Xxxxxxxx US Notes, shall be binding on all further Xxxxxxxx US Noteholders, and shall be notified by the US Master Purchaser to the Rating Agencies. | |||
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| (b) | Xxxxxxxx US Noteholders’ Resolutions |
| Any resolution of Xxxxxxxx US Noteholders in relation to these Xxxxxxxx US Note Conditions may be made in writing signed by or on behalf of Xxxxxxxx US Noteholders holding the relevant Face Value of Xxxxxxxx US Notes upon delivery to the US Master Purchaser by each such Xxxxxxxx US Noteholder of such evidence as to its identity and its capacity as Xxxxxxxx US Noteholder as the US Master Purchaser may reasonably require. | |
| 17. | Indemnification of the Security Agent etc. |
| 17.1 | The US Master Purchaser Security Agreement contains provisions for the indemnification of the Security Agent and for its relief from responsibility in certain circumstances. |
| 17.2 | The US Master Purchaser Security Agreement also contains a provision entitling the Security Agent to enter into business transactions with, among others, the US Master Purchaser, without accounting for any profits resulting there from. |
| 18. | Third Party Beneficiaries |
| Nothing in this Agreement shall be construed to create in any person not a party to this Agreement any rights, duties or obligations. | |
| 19. | Governing Law |
| This Agreement shall be construed in accordance with, and all matters arising out of or relating in any way to this Xxxxxxxx US Note shall be governed by, the law of the State of New York. | |
| 20 . | Submission to Jurisdiction |
| The parties hereto hereby irrevocably and unconditionally submit, for themselves and their property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in the Borough of Manhattan and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. | |
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21. US Registrar
Xxxxxxxx Silver US LLC
0 Xxxxxxxxxxxxx Xxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Treasurer
and/or such other or further US Registrar and/or specified office as may from time to time be appointed by the US Master Purchaser and notice of which has been given to the Xxxxxxxx US Noteholders.
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| SCHEDULE 4 REPRESENTATIONS AND WARRANTIES |
| (a) | Status: it is duly organized with limited liability and validly existing under the laws of its jurisdiction of organization; | |
| (b) | Powers and Authorizations: the documents which contain or establish its constitution include provisions which give power, and all necessary corporate authority has been obtained and action taken, for it to own its assets, carry on its business and operations as they are now being conducted and to sign and deliver, and perform the transactions contemplated in, the Transaction Documents to which it is a party; | |
| (c) | Legal Validity/Pari Passu Ranking: its obligations under the Transaction Documents constitute, or when executed by it will constitute, its legal, valid and binding obligations enforceable against it in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law). Its obligations thereunder are and will be direct, unconditional and general obligations which rank equally with all its other unsecured obligations and liabilities, present or future, actual or contingent, save for unsecured obligations and liabilities accorded preference over its other unsecured obligations and liabilities pursuant to any provision of the laws of its country of incorporation; | |
| (d) | Non-Violation: the execution, signing and delivery of the Transaction Documents to which it is a party and the performance of any of the transactions contemplated in any of them do not and will not contravene or breach or constitute a default under, require any consent under, or result in the acceleration or required payment of any indebtedness pursuant to the terms of, or conflict or be inconsistent with or cause to be exceeded any limitation on it or the powers of its directors imposed by or contained in: | |
| (i) | any law, statute, decree, rule or regulation to which it or any of its assets or revenues is subject or of any order, judgment, injunction, decree, resolution, determination or award of any court or any judicial, administrative, or governmental authority or organization which applies to it or any of its assets or revenues; or | |
| (ii) | any agreement, indenture, mortgage, deed of trust, bond, or any other document, instrument or obligation to which it is a party or by which any of its assets or revenues is bound or affected; or | |
| (iii) | any document that contains or establishes its constitution; | |
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| (e) | Consents: no authorization, approval, consent, license, exemption, registration, recording, filing or notarization and no payment of any duty or tax and no other action whatsoever which has not been duly and unconditionally obtained, made or taken is required to ensure (i) the creation, validity, legality, enforceability or priority of its rights, liabilities and obligations under the Transaction Documents; or (ii) the effective transfer of Receivables to it pursuant to the relevant US Contribution Agreement or (iii) for carrying on its business. |
| (f) | Solvency: it is solvent and able to pay its debts as they fall due and has not suspended or threatened to suspend making payments (whether of principal or interest) with respect to all or any class of its debts and will not become insolvent or unable to pay its debts in consequence of any contract concluded by it for the purchase of any Receivables under the Transaction Documents or any other obligation or transaction contemplated in the Transaction Documents; |
| (g) | Insolvency Procedures: no corporate action has been taken or is pending, no other steps have been taken (whether out of court or otherwise) and no legal proceedings have been commenced or are threatened or are pending for (i) its bankruptcy, liquidation, suspension of payments, controlled management, winding-up, liquidation, dissolution, administration or reorganization; or (ii) it to enter into any composition or arrangement with its creditors; or (iii) the appointment of a receiver, administrative receiver, trustee or similar officer in respect of it or any of its property, undertaking or assets. No event equivalent to any of the foregoing has occurred in or under the laws of any relevant jurisdiction; |
| (h) | No Litigation: no litigation to which it is a party or which any third party has brought against it in any court, arbitral tribunal or public or administrative body or otherwise and which, if adversely determined could reasonably be expected to have a Material Adverse Effect; |
| (i) | Investment Company Act: in the case of the US Master Purchaser, it is not an "investment company" within the meaning of the United States Investment Company of 1940, as amended, or is exempt from all of the provisions of such Act; |
| (j) | ERISA: in the case of the US Master Purchaser, no ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to have a Material Adverse Effect; |
| (k) | Ownership: in the case of the US Master Purchaser and the Master Servicer, it is an indirectly-held wholly-owned subsidiary of the Parent; and |
| (l) | US Records: in the case of the US Master Purchaser, it makes each representation with respect to the US Receivables contributed to it by the US Originators set out in Part 3 of Schedule 2 to the US Contribution Agreement. |
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| SCHEDULE 5 Part I |
Form of Xxxxxxxx US Note Purchaser Accession Letter
[Date]
| To: | Xxxxxxxx Silver US LLC |
| (the US Master Purchaser) | |
We refer to the note purchase agreement (the US Master Purchaser Funding Agreement) dated as of September 28, 2001 as amended and restated on July 18, 2002 and November 30, 2005 and made between the US Master Purchaser, the Silver Note Issuer, the MTN Issuer, the Security Agent, Xxxxxxxx Stafdiensten B.V. and Xxxxxxxx N.V. Terms defined in, or incorporated by reference into, the US Master Purchaser Funding Agreement shall have the same meanings herein as therein.
We confirm that we are in receipt of the following documents:
| (i) | a copy of the US Master Purchaser Funding Agreement; and | |
| (ii) | a copy of current versions of all other Transaction Documents as we have requested; and | |
| (iii) | [other], | |
| and have found them to our satisfaction. | ||
| 1. For the purposes of Clause 7 of the Framework Deed our notice details are as follows: | ||
| [insert name, address, telephone, facsimile and attention]. | ||
| 2. For the purposes of Clause 2.1(c) of the US Master Purchaser Funding Agreement, Xxxxxxxx US Notes having a Face Value of up to [specify] may be issued to us during the period commencing on the date hereof and ending on [specify]. | ||
| 3. For the purposes of Clause 7.3 of the US Master Purchaser Funding Agreement, attached is our US Internal Revenue Service Form W-8BEN.. | ||
In consideration of our accession to the US Master Purchaser Funding Agreement we undertake, for the benefit of the US Master Purchaser and each of the other parties to the US Master Purchaser Funding Agreement, that, in relation to the purchase by us of Xxxxxxxx US Notes, we will perform and comply with all the duties and obligations expressed to be assumed by a Xxxxxxxx US Note Purchaser under the US Master Purchaser Funding Agreement.
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This letter shall be construed in accordance with, and all matters arising out of or relating in any way to this Agreement shall be governed by, the law of the State of New York.
In witness of which [New Xxxxxxxx US Note Purchaser] has executed and delivered this letter on [date].
[NEW XXXXXXXX US NOTE PURCHASER]
| By | __________________ |
| Name: | |
| Title: | |
| cc: | Xxxxxxxx US Note Purchasers |
| Security Agent | |
| Master Servicer | |
| Rating Agencies | |
| The Parent |
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| Part II |
Form of Confirmation Letter
[Date]
| To: | [Name and address of New Xxxxxxxx US Note Purchaser] |
Dear Sirs,
We refer to the note purchase agreement (the US Master Purchaser Funding Agreement) dated September 28, 2001 as amended and restated on July 18, 2002 and November 30, 2005 and made between the US Master Purchaser, the Silver Note Issuer, the MTN Issuer, the Security Agent, Xxxxxxxx Stafdiensten B.V. and Xxxxxxxx N.V. and acknowledge receipt of your Xxxxxxxx US Note Purchaser Accession Letter to us dated [specify]. Terms defined in, or incorporated by reference into, the US Master Purchaser Funding Agreement shall have the same meanings herein as therein.
We confirm that, with effect from today’s date, you shall become a Xxxxxxxx US Note Purchaser in accordance with Clause 15 of the US Master Purchaser Funding Agreement.
Yours faithfully
XXXXXXXX SILVER US LLC
By CORPORATE EXPRESS OFFICE PRODUCTS, INC.
its managing member
| By | _______________ |
Name: |
|
| Title: | |
| cc: | Xxxxxxxx US Note Purchasers |
| Security Agent | |
| Master Servicer | |
| Rating Agencies | |
| The Parent |
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CONTENTS
| Page I |
Page II
EXECUTION COPY
Dated as of November 30, 2005
XXXXXXXX SILVER US LLC
(as US Master Purchaser)
XXXXXXXX SILVER FINANCING, LLC
(as Silver Note Issuer)
SILVER FUNDING LIMITED
(as MTN Issuer)
DEUTSCHE TRUSTEE COMPANY LIMITED
(as Security Agent)
XXXXXXXX STAFDIENSTEN B.V.
(as Master Servicer)
XXXXXXXX N.V.
(as Parent)
AMENDED AND RESTATED
US MASTER PURCHASER
FUNDING AGREEMENT
