EXHIBIT 10.46
14 AUGUST 2006
VISTEON NETHERLANDS FINANCE B.V.
(AS SUBORDINATED VLN FACILITY PROVIDER)
VISTEON FINANCIAL CENTRE P.L.C.
(AS MASTER PURCHASER)
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
(AS SECURITY TRUSTEE)
CITIBANK INTERNATIONAL PLC
(AS FUNDING AGENT)
----------
SUBORDINATED VLN FACILITY
AGREEMENT
----------
(SEAL) FRESHFIELDS BRUCKHAUS XXXXXXXX
CONTENTS
CLAUSE PAGE
------ ----
1. INTERPRETATION....................................................... 1
2. THE SUBORDINATED VLN FACILITY........................................ 2
3. PURPOSE.............................................................. 2
4. CONDITIONS PRECEDENT TO ISSUE........................................ 3
5. UTILISATION OF THE SUBORDINATED VLN FACILITY......................... 3
6. APPLICATION OF ADVANCES.............................................. 5
7. CONSTITUTION OF EACH SUBORDINATED VLN................................ 6
8. PAYMENTS............................................................. 6
9. REPRESENTATIONS AND WARRANTIES....................................... 7
10. ILLEGALITY AND MITIGATION............................................ 10
11. NO LIABILITY AND NO PETITION......................................... 10
12. NO PETITION.......................................................... 11
13. LIMITED RECOURSE..................................................... 11
14. BENEFIT OF AGREEMENT................................................. 12
15. EVIDENCE OF DEBT..................................................... 12
16. COUNTERPARTS......................................................... 12
17. RIGHTS OF THIRD PARTIES.............................................. 12
18. GOVERNING LAW........................................................ 12
19. JURISDICTION......................................................... 12
SCHEDULE 1 FORM OF SUBORDINATED VLN...................................... 14
SCHEDULE 2 TERMS AND CONDITIONS.......................................... 19
SCHEDULE 3 FORM OF SUBORDINATED VLN HOLDER ACCESSION LETTER.............. 31
SCHEDULE 4 REPRESENTATIONS AND WARRANTIES OF THE MASTER PURCHASER........ 34
SCHEDULE 5 FORM OF SUBORDINATED VLN INITIAL FUNDING REQUEST.............. 37
SCHEDULE 6 REPRESENTATIONS AND WARRANTIES OF THE SUBORDINATED VLN
FACILITY PROVIDER..................................................... 38
I
THIS AGREEMENT is made on 14 August 2006
BETWEEN
(1) VISTEON NETHERLANDS FINANCE B.V., a private company with limited liability,
incorporated and existing under the laws of the Netherlands, having its
corporate seat at Rotterdam, the Netherlands and having its offices at
Weena 340, 3012 NJ Rotterdam, the Netherlands (the SUBORDINATED VLN
FACILITY PROVIDER);
(2) VISTEON FINANCIAL CENTRE P.L.C., a company incorporated in Ireland,
registered in Ireland with the Companies Registration Office with number
423820, whose registered office is at Xxxxx Xxxxx, 0 Xxxxxxxx Xxxxx,
International Financial Services Centre, Xxxxxx 0, Xxxxxxx (the MASTER
PURCHASER);
(3) THE LAW DEBENTURE TRUST CORPORATION P.L.C., a company incorporated in
England and Wales with limited liability whose registered office is at
Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX (the SECURITY TRUSTEE); and
(4) CITIBANK INTERNATIONAL PLC, a company incorporated in England and Wales
whose registered office is at Citigroup Centre, Canada Square, Xxxxxx
Xxxxx, Xxxxxx X00 0XX (the FUNDING AGENT),
(together the PARTIES).
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 Capitalised terms in this Agreement shall, except where the context
otherwise requires and save where otherwise defined herein, bear the meanings
ascribed to them in the Master Definitions and Framework Deed (the FRAMEWORK
DEED) executed by, among others, each of the parties hereto dated on or about
the date hereof (as the same may be amended, varied or supplemented from time to
time with the consent of the parties thereto unless, in relation to any such
amendment, variation or supplement, such persons expressly state in writing that
such amendment, variation or supplement is not to apply hereto) and this
Agreement shall be construed in accordance with the principles of construction
set out therein.
1.2 In addition, the provisions set out in Clauses 3 to 6 and 12 to 28 of the
Framework Deed (the FRAMEWORK PROVISIONS) shall be expressly and specifically
incorporated into this Agreement, as though they were set out in full in this
Agreement. In the event of any conflict between the provisions of this Agreement
and the Framework Provisions, the provisions of this Agreement shall prevail.
1.3 This Agreement is the Subordinated VLN Facility Agreement referred to in the
Framework Deed.
1.4 The Security Trustee has agreed to become a party to this Agreement solely
for the better enforcement and preservation of its rights, to receive benefit of
the representations, warranties, covenants, undertakings, indemnities and other
obligations expressed to be in its favour hereunder and to agree amendments to
this Agreement. The parties hereto acknowledge and agree that the Security
Trustee shall not assume any obligation or incur any liability whatsoever to any
Party by virtue of the provisions contained in this Agreement.
2. THE SUBORDINATED VLN FACILITY
GRANT OF THE SUBORDINATED VLN FACILITY
2.1 The Subordinated VLN Facility Provider hereby grants to the Master Purchaser
upon and subject to the terms and conditions of this Agreement a committed note
issuance facility in each of the Agreed Currencies pursuant to which the Master
Purchaser shall issue to the Subordinated VLN Facility Provider:
(a) a Subordinated VLN denominated in Euro (the EUR SUBORDINATED VLN);
(b) a Subordinated VLN denominated in Sterling (the GBP SUBORDINATED VLN); and
(c) a Subordinated VLN denominated in US Dollars (the USD SUBORDINATED VLN),
upon and subject to the terms and conditions of this Agreement.
SECURITY
2.2 It is hereby acknowledged and agreed that upon the Subordinated VLN Facility
Provider making a payment of Subordinated VLN Initial Subscription Price
following receipt by it of a Subordinated VLN Initial Funding Request for a
Subordinated VLN in accordance with this Agreement, it:
(a) shall become a beneficiary of the security created by or pursuant to the
Master Purchaser Deed of Charge in respect of all sums payable to it under
this Agreement and in its capacity as Subordinated VLN Holder; and
(b) shall be bound by the terms of the Master Purchaser Deed of Charge.
3. PURPOSE
PURPOSE
3.1 The Subordinated VLN Facility is intended to provide the Master Purchaser
with financing to fund:
(a) in part, the payment of the Purchase Price in respect of the Purchased
Receivables;
Page 2
(b) to enable the Issuer to repay advances made under the Variable Funding
Agreement and the Notes from time to time; and
(c) in part, the payment of the initial subscription price and any further
subscription price for the FCC Units,
and accordingly, the Master Purchaser shall apply all amounts raised by it under
the Subordinated VLN Facility only for such purposes.
NO OBLIGATION TO MONITOR USE OF PROCEEDS
3.2 Without in any way affecting the obligations of the Master Purchaser, the
Subordinated VLN Facility Provider is not bound to monitor or verify the
application of amounts raised by the Master Purchaser under this Agreement.
4. CONDITIONS PRECEDENT TO ISSUE
The entitlement of the Master Purchaser to issue and the obligations of the
Subordinated VLN Facility Provider to fund the Subordinated VLNs under this
Agreement shall be subject in all respects to Clause 18 (Conditions Precedent)
of the Framework Deed.
5. UTILISATION OF THE SUBORDINATED VLN FACILITY
SUBORDINATED VLN INITIAL FUNDING REQUEST
5.1 The Master Purchaser shall make a request for funding in respect of the
Subordinated VLNs to the Subordinated VLN Facility Provider by delivering the
Subordinated VLN Initial Funding Request to the Subordinated VLN Facility
Provider on or before the Funding Date.
5.2 The Subordinated VLN Initial Funding Request delivered by the Master
Purchaser pursuant to Clause 5.1 must specify:
(a) the initial par value of each Subordinated VLN; and
(b) the Subordinated VLN Initial Subscription Price of each Subordinated VLN
(the aggregate USD Equivalent of which shall not be less than the Aggregate
Subordinated VLN Required Amount calculated as at the Funding Date).
5.3 Upon receipt of the Subordinated VLN Initial Funding Request made in
accordance with Clause 5.1, the Subordinated VLN Facility Provider shall (i)
subscribe for a Subordinated VLN in each Agreed Currency with a par value equal
to the Subordinated VLN Required Amount for that Agreed Currency as at the
Funding Date and (ii) pay to, or to the order of, the Master Purchaser by no
later than 11.00 a.m. London time (or in relation to any Subordinated VLN
Subscription Price payable in USD, by no later than 11.00 a.m. (New York time))
on the Funding Date the Subordinated VLN Subscription Price in respect of each
Subordinated VLN stated in the Subordinated VLN Initial Funding Request to be
subscribed for by that Subordinated VLN Facility Provider.
Page 3
5.4 Delivery of a Subordinated VLN Initial Funding Request pursuant to this
Clause 5 shall constitute:
(a) an irrevocable agreement by the Master Purchaser binding upon it to accept
the payment of each Subordinated VLN Initial Subscription Price described
in it on the Funding Date; and
(b) a representation by the Master Purchaser that the conditions precedent
described in Clause 4 have been satisfied.
FURTHER SUBORDINATED ADVANCES
5.5 USD SUBORDINATED VLNS: The Subordinated VLN Facility Provider shall, on each
Settlement Date during the Securitisation Availability Period, make a further
advance to the Master Purchaser in respect of the USD Subordinated VLN held by
it in an amount equal to the amount by which:
(a) the USD Subordinated VLN Required Amount on the Determination Date
immediately preceding such Settlement Date; exceeds
(b) the aggregate Subordinated VLN Principal Amount Outstanding of the USD VLNs
as at such Determination Date, or
such other higher amount as shall otherwise be shown as required in respect of
the USD Subordinated VLN in any Servicer Report,
(each such advance, a USD FURTHER SUBORDINATED ADVANCE).
5.6 EUR SUBORDINATED VLNS: The Subordinated VLN Facility Provider shall, on each
Settlement Date during the Securitisation Availability Period, make a further
advance to the Master Purchaser in respect of the EUR Subordinated VLN held by
it in an amount equal to the amount by which:
(a) the EUR Subordinated VLN Required Amount on the Determination Date
immediately preceding such Settlement Date; exceeds
(b) the aggregate Subordinated VLN Principal Amount Outstanding of the EUR
Subordinated VLN as at such Determination Date, or
such other higher amount as shall otherwise be shown as required in respect of
the EUR Subordinated VLNs in any Servicer Report,
(each such advance, a EUR FURTHER SUBORDINATED ADVANCE).
5.7 GBP SUBORDINATED VLNS: The Subordinated VLN Facility Provider shall, on each
Settlement Date during the Securitisation Availability Period, make a further
advance to the Master Purchaser in respect of the GBP Subordinated VLN held by
it in an amount equal to the amount by which:
(a) the GBP Subordinated VLN Required Amount on the Determination Date
immediately preceding such Settlement Date; exceeds
Page 4
(b) the aggregate Subordinated VLN Principal Amount Outstanding of the GBP
Subordinated VLNs as at such Determination Date, or
such other higher amount as shall otherwise be shown as required in respect of
the GBP Subordinated VLN in any Servicer Report,
(each such advance, a GBP FURTHER SUBORDINATED ADVANCE and, together with any
USD Further Subordinated Advances and EUR Further Subordinated Advances, the
FURTHER SUBORDINATED ADVANCES).
5.8 Upon payment by the Subordinated VLN Facility Provider of any Further
Subordinated Advance, the Subordinated VLN Principal Amount Outstanding of the
relevant Subordinated VLN shall be increased automatically by the amount of the
Further Subordinated Advance made by the Subordinated VLN Facility Provider in
the applicable Agreed Currency without the need for any further action by the
Subordinated VLN Holder or the Master Purchaser by the amount of such payments.
5.9 Each Subordinated VLN shall evidence the outstanding indebtedness owed by
the Master Purchaser to the relevant Subordinated VLN Holder in respect of that
Subordinated VLN from time to time. The Master Purchaser authorises and
instructs the Subordinated VLN Holder to record on the Grid attached to each
Subordinated VLN held by it and also authorises and instructs the Subordinated
VLN Facility Provider (which instruction the Subordinated VLN Facility Provider
hereby acknowledges and undertakes so to do) to record in its internal books and
records:
(a) the date and amount of the funding of:
(i) the initial Subordinated VLN Principal Amount Outstanding of that
Subordinated VLN; and
(ii) each increase in the Subordinated VLN Principal Amount
Outstanding of that Subordinated VLN; and
(b) the date and amount of each repayment of the principal amount represented
by the Subordinated VLN and corresponding reduction in its Subordinated VLN
Principal Amount Outstanding,
provided that the failure to record, or any error in recording, any of these
matters on the Grid or in the internal books or records referred to above shall
not adversely affect the right of the Subordinated VLN Holder to receive
principal and interest in respect of its Subordinated VLN to the extent there is
sufficient evidence otherwise available to determine the then current
Subordinated VLN Principal Amount Outstanding of that Subordinated VLN.
6. APPLICATION OF ADVANCES
The obligation of the Subordinated VLN Facility Provider to fund any increase in
the Subordinated VLN Principal Amount Outstanding of any Subordinated VLN in
accordance with Clause 5.4, Clause 5.5 or Clause 5.6 on any Settlement Date
shall be satisfied by a payment by the Subordinated VLN Facility Provider of the
applicable
Page 5
amount of the Further Subordinated Advance to the Master Purchaser Transaction
Account denominated in the applicable Agreed Currency on the relevant Settlement
Date.
7. CONSTITUTION OF EACH SUBORDINATED VLN
7.1 The Master Purchaser hereby constitutes each Subordinated VLN and covenants
in favour of the Subordinated VLN Facility Provider (and any successor
Subordinated VLN Holder) that it will duly perform and comply with the
obligations expressed to be undertaken by it in each Subordinated VLN and in the
Subordinated VLN Conditions (and for this purpose any reference in the
Subordinated VLN Conditions to any obligation or payment under or in respect of
a Subordinated VLN shall be construed to include a reference to any obligation
or payment under or pursuant to this provision).
7.2 Each Subordinated VLN issued by the Master Purchaser pursuant to this
Agreement shall be:
(a) in definitive registered form in the form set out in Schedule 1 or in such
other form as may from time to time be agreed between the Master Purchaser,
the relevant Subordinated VLN Holder, the Security Trustee and the Funding
Agent and executed by, or on behalf of, the Master Purchaser; and
(b) denominated in an Agreed Currency and shall be the same currency in which
the Receivables which are or are proposed to be purchased with the proceeds
of the issue of such Subordinated VLNs are denominated; and
(c) subject to Clause 7.3 and Subordinated VLN Condition 2, transferable.
7.3 The Subordinated VLN shall only be transferable if each of the Master
Purchaser, the Collateral Monitoring Agent, the Funding Agent and the Security
Trustee shall have given their prior written consent thereto.
7.4 The Master Purchaser covenants with the Subordinated VLN Facility Provider
that it will register the Subordinated VLN Facility Provider as the Subordinated
VLN Holder in the Register in respect of each Subordinated VLN subscribed by it
immediately upon issue thereof and as the sole person with rights to payment of
principal of, and interest on, such Subordinated VLN. The Register shall be held
and maintained by or on behalf of the Master Purchaser in Ireland.
8. PAYMENTS
8.1 The currency of account in respect of the Subordinated VLNs and payment for
each and every sum at any time payable by the Issuer in respect of the
Subordinated VLN or under this Agreement is as follows:
(a) EUR, in respect of the EUR Subordinated VLNs;
(b) GBP, in respect of the GBP Subordinated VLNs; and
Page 6
(c) USD, in respect of the USD Subordinated VLNs.
8.2 On each date on which this Agreement requires an amount denominated in an
Agreed Currency to be paid by the Subordinated VLN Facility Provider hereunder,
the Subordinated VLN Facility Provider shall make the same available to the
Master Purchaser by payment in such Agreed Currency and in immediately available
cleared funds to the Master Purchaser Transaction Account denominated in the
applicable Agreed Currency.
8.3 On each date on which this Agreement or the Subordinated VLN Conditions of
any Subordinated VLN require an amount denominated in an Agreed Currency to be
paid by the Master Purchaser, the Master Purchaser shall make the same available
to the Subordinated VLN Facility Provider as Subordinated VLN Holder by payment
in such Agreed Currency and in immediately available, freely transferable,
cleared funds to the Subordinated VLN Facility Provider's Subordinated VLN
Holder Account denominated in the Agreed Currency in which the payment is to be
made.
8.4 The calculation of the Subordinated VLN Interest Rate (as defined in
Subordinated VLN Condition 3.4) in respect of each Subordinated VLN will be
undertaken by the Funding Agent. The Funding Agent agrees to notify the Master
Purchaser and the Subordinated VLN Facility Provider of each Subordinated VLN
Interest Rate by no later than 12 noon London time on the day falling two (2)
Business Days prior to each Monthly Settlement Date (in respect of the
Subordinated VLN Interest Rate applicable to the USD Subordinated VLN and the
EUR Subordinated VLN) and by no later than 12 noon London time on each Monthly
Settlement Date (in respect of the Subordinated VLN Interest Rate applicable to
the GBP Subordinated VLN).
9. REPRESENTATIONS AND WARRANTIES
BY THE MASTER PURCHASER
9.1 The Master Purchaser represents and warrants to and agrees with the
Subordinated VLN Facility Provider on the date of this Agreement and on each
Settlement Date that each of the statements set out in Schedule 4 to this
Agreement is true and accurate by reference to the facts and circumstances then
existing and the Master Purchaser undertakes to notify the Funding Agent and the
Subordinated VLN Facility Provider (and any successor Subordinated VLN Holder)
as soon as it becomes aware of any breach of the representations and warranties
set out in Schedule 4.
9.2 The Master Purchaser hereby covenants in favour of the Subordinated VLN
Facility Provider (and any successor Subordinated VLN Holder) that it shall:
(a) obtain, comply with the terms of and do all that is necessary to maintain
in full force and effect all authorisations, approvals licences and
consents required in or by the laws and regulations of Ireland and any
other applicable law to enable it lawfully to enter into and perform its
obligations under each of the Transaction Documents or to ensure the
legality, validity, enforceability or,
Page 7
subject to the compliance with applicable procedural rules, admissibility
in evidence in Ireland in all material respects of each; and
(b) promptly inform the Subordinated VLN Facility Provider and each
Subordinated VLN Holder of the occurrence of any event which is or may
become (with the passage of time, the giving of notice, the making of any
determination or any combination thereof) a Master Purchaser Event of
Default and, upon receipt of a written request to that effect from the
Subordinated VLN Facility Provider or a Subordinated VLN Holder, confirm to
the Subordinated VLN Facility Provider or a Subordinated VLN Holder (as the
case may be) that, save as previously notified to the Subordinated VLN
Facility Provider or Subordinated VLN Holder (as the case may be) or as
notified in such confirmation, no such event has occurred.
9.3 The Master Purchaser hereby covenants with the Subordinated VLN Facility
Provider (and any successor Subordinated VLN Holder) and save to the extent as
permitted or contemplated by the Transaction Documents not to:
(a) have any employees or premises; or
(b) pay any dividends or make any distributions in respect of its share capital
or issue any additional shares; or
(c) consolidate or merge with any other person or convey or transfer its
properties or assets substantially in their entirety to any person except
as permitted or contemplated by the Transaction Documents; or
(d) incur, create, assume or suffer to exist or otherwise become or be liable
in respect of any indebtedness whether present or future other than
indebtedness in respect of taxes, assessments or governmental charges not
yet overdue or administration, corporate or secretarial expenses, or
indebtedness incurred, created or assumed with the prior consent of the
Subordinated VLN Facility Provider, it being understood that the Master
Purchaser will incur present and future indebtedness under the Notes and
the Variable Funding Agreement to which the Subordinated VLN Facility
Provider hereby consents; or
(e) make, incur, assume or suffer to exist any loan, advance or guarantee
(including any indemnity) to any person (other than in respect of the FCC
Units); or
(f) sell, transfer, release or otherwise dispose of any of, or grant options,
warrants or other rights in respect to, any of its assets to any person
without the prior consent of the Subordinated VLN Facility Provider (other
than payments of amounts of a type permitted under paragraph (d) above); or
(g) have an interest in any bank account, other than the Master Purchaser
Transaction Accounts and those other accounts specified or contemplated in
the Transaction Documents; or
(h) have any subsidiaries; or
Page 8
(i) carry on any business other than that which is contemplated or necessitated
by the operation of the Transaction Documents.
BY THE SUBORDINATED VLN FACILITY PROVIDER
9.4 The Subordinated VLN Facility Provider hereby represents and warrants in
favour of the Master Purchaser on the date of this Agreement and on the Funding
Date in the terms set out in Schedule 6 with reference to the facts and
circumstances then subsisting.
9.5 The Subordinated VLN Facility Provider hereby represents and warrants to,
and covenants with, the Master Purchaser:
(a) it will not make any offer in Ireland in circumstances that would require
the publication of a prospectus in respect of the Subordinated VLNs (and
the offer thereof) in accordance with the Prospectus (Directive 2003/71/EC)
Regulations 2005;
(b) the Subordinated VLNs will not be the subject of a local offer (within the
meaning of section 38(1) of the Investment Funds, Companies and
Miscellaneous Provisions Xxx 0000 of Ireland); and
(c) the Subordinated VLNs will not be offered other than in compliance with all
applicable provisions of the Investment Intermediaries Acts 1995 to 2000 of
Ireland (as amended).
9.6 The Subordinated VLN Facility Provider hereby undertakes to the Master
Purchaser that for so long as it is a Subordinated VLN Holder, it will promptly
inform the Master Purchaser of any change in the identity of its Subordinated
VLN Holder Accounts.
9.7 The Subordinated VLN Facility Provider represents and warrants in favour of
the Master Purchaser on the date of this Agreement and on each Interest Payment
Date that it is a company which is resident in a territory that has a double
taxation treaty with Ireland, under the laws of that territory, or in a Member
State of the European Communities (other than Ireland), under the laws of that
Member State and it does not provide its commitment through or in connection
with a branch or agency in Ireland.
9.8 The Subordinated VLN Facility Provider represents and warrants that (i) it
is either (x) not a US Person and is acquiring the Subordinated VLNs for its own
account or for the account or benefit exclusively of non-US Persons or (y) an
Accredited Investor acquiring the Subordinated VLNs for its own account and not
with a view towards, or for resale in connection with, the public sale or
distribution thereof, except in accordance with a transaction exempt from
registration under the Securities Act (PROVIDED that in making the foregoing
representation, the Subordinated VLN Facility Provider does not agree to hold
its Subordinated VLNs for any minimum or other specific term and reserves the
right to dispose of the Subordinated VLNs (subject always to the provisions of
this Agreement and the Subordinated VLN Conditions) at any time pursuant to an
exemption from the
Page 9
registration requirements of the Securities Act) and (ii) it understands that
the Subordinated VLNs are being offered and sold to in reliance on specific
exemptions from the registration requirements of the United States Federal and
state securities laws and that the Master Purchaser is relying in part upon the
truth and accuracy of the representation made pursuant to (i) above and the
other representations, warranties, agreements, acknowledgments and
understandings of the Subordinated VLN Facility Provider set forth in this
Agreement and the Subordinated VLN Conditions in order to determine the
availability of such exemptions.
CONSEQUENCES OF BREACH
9.9 If the Subordinated VLN Facility Provider (or any successor Subordinated VLN
Holder) becomes aware of any breach of the covenants, representations and
warranties given by the Master Purchaser under Clause 9.1, it shall be entitled
(but not bound) by notice to the Master Purchaser to elect to treat such breach
as releasing and discharging it from its obligations under this Agreement on or
after that date PROVIDED THAT the Subordinated VLN Facility Provider shall not
be entitled so to elect unless a Termination Event shall have occurred and not
been waived or cured and in any event shall not be permitted or entitled to take
any action or exercise any remedy unless all amounts outstanding under the Notes
and the Variable Funding Agreement and all amounts ranking higher in the
applicable Master Purchaser Priorities of Payments have been paid or discharged
in full.
10. ILLEGALITY AND MITIGATION
10.1 If at any time it becomes unlawful for the Subordinated VLN Facility
Provider to maintain, make, or fund a Subordinated VLN or to allow a
Subordinated VLN to remain outstanding, it shall, as soon as reasonably
practicable after becoming aware of that fact, deliver to the Master Purchaser
and to the Funding Agent (copied to the Security Trustee) a certificate to that
effect, and unless such illegality is avoided in accordance with Clause 10.2,
then subject to Clause 10.2, the applicable Subordinated VLN will become
immediately repayable at the amount of its Subordinated VLN Principal Amount
Outstanding plus any accrued interest.
10.2 If circumstances arise which would (with the giving of any requisite notice
or certificate or the lapse of time or the making of any determination or the
satisfaction of any other condition) result in an event specified in Clause 10.1
occurring, the Subordinated VLN Facility Provider shall, as soon as reasonably
practicable upon becoming aware of that fact, notify the Master Purchaser, the
Funding Agent, the Collateral Monitoring Agent and the Security Trustee and take
such steps as may reasonably be open to it to mitigate the effects of such
circumstances, including the transfer of its rights and obligations hereunder to
another entity agreed by the Master Purchaser, the Collateral Monitoring Agent,
the Funding Agent and the Security Trustee as being acceptable to it, such
agreement not to be unreasonably withheld or delayed.
11. NO LIABILITY AND NO PETITION
11.1 No recourse under any obligation, covenant, or agreement of the Master
Purchaser contained in this Agreement or any Subordinated VLN shall be had
against
Page 10
any shareholder, officer, trustee or director of the Master Purchaser, 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 obligation,
covenant and agreement of the Master Purchaser under this Agreement or any other
Transaction Document is a corporate obligation and no personal liability shall
attach to or be incurred by the shareholders, officers, trustees, agents,
employees or directors of the Master Purchaser as such, or any of them, 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, trustee, agent,
employee or director is hereby expressly waived by the other parties as a
condition of and consideration for the execution of this Agreement.
12. NO PETITION
12.1 The Subordinated VLN Facility Provider hereby undertakes to the Master
Purchaser that it shall not, nor shall any party on its behalf, at any time
institute against, or join any person in instituting against the Master
Purchaser or any or all of the revenues or assets of the Master Purchaser any
bankruptcy, winding up, re-organisation, examination, arrangement, insolvency or
liquidation proceeding or other proceeding under any similar law nor petition
for the appointment of a receiver, administrator, examiner, administrative
receiver, trustee, liquidator, sequestrator or similar officer of it nor
participate in any ex parte proceedings.
13. LIMITED RECOURSE
13.1 Notwithstanding any other provision of this Agreement and the other
Transaction Documents, each Party agrees and acknowledges with the Master
Purchaser that, save as otherwise provided for in any Transaction Document:
(a) it will only have recourse in respect of any amount, claim or obligation
due or owing to it by the Master Purchaser (the CLAIMS) only to the extent
of available funds pursuant to the applicable Master Purchaser Priorities
of Payments and subject to the provisos therein, which shall be applied by
the Security Trustee, subject to and in accordance with the terms thereof
and after all other prior ranking claims in respect thereof have been
satisfied and discharged in full; and
(b) following the application of funds following enforcement of the security
interests created under the Master Purchaser Deed of Charge, subject to and
in accordance with the Master Purchaser Post-Enforcement Priorities of
Payments, the Master Purchaser will have no assets available for payment of
its obligations under this Agreement, the Subordinated VLNs, the Master
Purchaser Deed of Charge and the other Transaction Documents other than as
provided for pursuant to the Master Purchaser Deed of Charge, and that any
Claims will accordingly be extinguished to the extent of any shortfall; and
(c) the obligations of the Master Purchaser under this Agreement, each
Subordinated VLN, the Master Purchaser Deed of Charge and the other
Transaction Documents will not be obligations or responsibilities of, or
guaranteed by, any other person or entity.
Page 11
14. BENEFIT OF AGREEMENT
14.1 This Agreement shall be binding upon and enure to the benefit of each Party
and its or any subsequent successors and permitted assigns.
14.2 Other than pursuant to the Master Purchaser Deed of Charge, the Master
Purchaser shall not be entitled to assign or transfer all or part of its rights
and benefits or obligations hereunder.
14.3 The Subordinated VLN Facility Provider shall not be entitled to assign or
transfer all or part of any of its rights and benefits or obligations hereunder
or to transfer any Subordinated VLN to another party unless the Master
Purchaser, the Collateral Monitoring Agent, the Funding Agent and the Security
Trustee have given their prior written consent.
15. EVIDENCE OF DEBT
The Subordinated VLN Facility Provider shall maintain, in accordance with usual
accounting practice, accounts evidencing the amounts from time to time owing to
it hereunder and in its capacity as Subordinated VLN Holder (including in
respect of the Subordinated VLN Principal Amount Outstanding and any other sums
due in respect of any Subordinated VLN at any time it is a Subordinated VLN
Holder).
16. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the parties
to it on separate counterparts, each of which shall be an original but all of
which together shall constitute one and the same instrument.
17. RIGHTS OF THIRD PARTIES
A person who is not a party to this Agreement shall have no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any of its terms.
18. GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance with English
law.
19. JURISDICTION
The provisions of Clause 4 of the Framework Deed shall apply to this Agreement
on the basis set out therein.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
Page 12
THE SUBORDINATED VLN FACILITY PROVIDER
SIGNED by XXXXX X. XXXXX ) XXXXX X. XXXXX
for and on behalf of )
VISTEON NETHERLANDS )
FINANCE B.V. )
THE MASTER PURCHASER
SIGNED by XXXX XXXXX ) XXXX XXXXX
for and on behalf of )
VISTEON FINANCIAL CENTRE P.L.C. )
THE SECURITY TRUSTEE
SIGNED by XXXX XXXXXXX ) XXXX XXXXXXX
for and on behalf of )
THE LAW DEBENTURE TRUST )
CORPORATION P.L.C. )
THE FUNDING AGENT
SIGNED by XXXXX XXXXXXXX XXXXXXXX ) XXXXX XXXXXXXX
for and on behalf of ) TACARDON
CITIBANK INTERNATIONAL PLC )
Page 13
SCHEDULE 1
FORM OF SUBORDINATED VLN
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 OR OTHER JURISDICTION, AND ACCORDINGLY MAY NOT BE OFFERED, SOLD,
ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OF AMERICA, OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS (AS DEFINED IN REGULATION S
UNDER THE SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
VISTEON FINANCIAL CENTRE P.L.C.
(incorporated in the Republic of Ireland with limited liability; registered
number 423820)
(the MASTER PURCHASER)
[EUR [_____]/GBP [_____]/USD [_____]] NOTE DUE 20[_____]
issued to: [INSERT SUBORDINATED VLN FACILITY PROVIDER NAME]
(the SUBORDINATED VLN)
This Subordinated VLN has been constituted by the Master Purchaser pursuant to a
Subordinated VLN Facility Agreement (the SUBORDINATED VLN FACILITY AGREEMENT)
dated 14 August 2006 between the Master Purchaser, Visteon Netherlands Finance
B.V. (as the SUBORDINATED VLN FACILITY PROVIDER), The Law Debenture Trust
Corporation p.l.c. (as SECURITY TRUSTEE) and Citibank International plc (as
FUNDING AGENT) and is subject to, and with the benefit of, the attached terms
and conditions (the SUBORDINATED VLN CONDITIONS) and the Subordinated VLN
Facility Agreement.
Capitalised terms used and not otherwise defined in this Subordinated VLN have
the respective meanings specified in the Subordinated VLN Facility Agreement.
The Master Purchaser, for value received, promises, in accordance with the
Subordinated VLN Conditions to pay to the registered holder of this Subordinated
VLN on the Subordinated VLN Final Maturity Date the Subordinated VLN Principal
Amount Outstanding on that date as shown on the Grid attached to this
Subordinated VLN or otherwise recorded in the books and records of the
Subordinated VLN Facility Provider and confirmed in the relevant Servicer
Report, together with accrued interest in accordance with the Subordinated VLN
Conditions and any additional amounts payable thereunder.
Upon any redemption or increase of the Subordinated VLN Principal Amount
Outstanding of the Subordinated VLN in accordance with the Subordinated VLN
Conditions, the Master Purchaser shall procure that the amount so redeemed be
Page 14
recorded on the Subordinated VLN Grid and in the books and records of the
Subordinated VLN Holder and the relevant Servicer Report.
This Subordinated VLN is in registered form and is transferable in whole (but
not in part) only in accordance with Condition 2 and the Subordinated VLN
Facility Agreement.
AS WITNESS the signature of a duly authorised officer on behalf of the Master
Purchaser
SIGNED, SEALED and DELIVERED as a )
DEED by )
as duly authorised attorney )
for and on behalf of )
VISTEON FINANCIAL CENTRE P.L.C. )
in the presence of: )
Witness:
-----------------------------
Name:
-------------------------------
Address:
----------------------------
ISSUED in [Ireland] on [_____] 2006
Page 15
FORM OF NOTE TRANSFER
For value received ____________________________ (the TRANSFEROR) hereby
transfer(s) on the Transfer Date (as defined below) to
________________________________________________________________________________
________________________________________________________________________________
_______________________________________________________________ (the TRANSFEREE)
(Please print or type name and address of transferee)
this Subordinated VLN (which has a Subordinated VLN Principal Amount Outstanding
of [EUR [_____]/ GBP [_____]/USD [_____]] at the date of this transfer) and all
rights hereunder, hereby irrevocably constituting and appointing [_____] as
attorney to transfer such Subordinated VLN in the relevant Register maintained
by or on behalf of the Master Purchaser with full power of substitution.
TRANSFER DATE means _____________________________ (insert effective date for
transfer).
By its transfer hereof, the transferor represents that:
(1) it is transferring this Subordinated VLN, and has offered this Subordinated
VLN for transfer only (i) to a non-U.S. person acquiring this Subordinated
VLN for its own account or for the account or benefit exclusively of
non-U.S. persons and (ii) outside the United States in an offshore
transaction in compliance with Regulation S (REGULATION S) under the U.S.
Securities Act of 1933, as amended (the SECURITIES ACT) or (iii) pursuant
to another exemption from the registration requirements of the Securities
Act and any applicable State securities laws;
(2) it has obtained the prior written consent of the Master Purchaser, the
Funding Agent and the Collateral Monitoring Agent to such transfer (a
signed original of each such consent being delivered herewith to the
Registrar).
Signature of transferor
----------------
----------------
We hereby accept this Subordinated VLN (which has a Subordinated VLN Principal
Amount Outstanding at the date of this transfer) and agree to be bound by the
Subordinated VLN Conditions of this Subordinated VLN. By its acquisition hereof,
the transferee represents that:
(a) (i) it is either (x) not a US Person and is acquiring this Subordinated VLN
for its own account or for the account or benefit exclusively of non-US
Persons outside the United States in an offshore transaction (as defined in
Regulation S) in accordance with Regulation S or (y) an Accredited Investor
acquiring this Subordinated VLN for its own account and not with a view
towards, or for resale in connection with, the public sale or distribution
thereof, except in
Page 16
accordance with a transaction exempt from registration under the Securities
Act and (ii) it understands that the Subordinated VLNs are being offered
and sold to in reliance on specific exemptions from the registration
requirements of the United States Federal and state securities laws and
that the Issuer is relying in part upon the truth and accuracy of the
representation made pursuant to clause (i) and the other representations,
warranties, agreements, acknowledgments and understandings of such
Transferee set forth in the Subordinated VLN Facility Agreement in order to
determine the availability of such exemptions;
(b) it is:
(i) a person which is resident in a territory that has a double
taxation treaty with Ireland, under the laws of that territory,
or in a Member State of the European Communities (other than
Ireland), under the laws of that Member State; or
(ii) a US company, provided that the US company is incorporated in the
US and subject to tax in the US on its worldwide income; or
(iii) a US LLC, provided that the ultimate recipients of the interest
are resident in a territory that has a double taxation treaty
with Ireland, under the laws of that territory, or in a Member
State of the European Communities (other than Ireland) under the
laws of that Member State and the business conducted through the
LLC is so structured for market reasons and not for tax avoidance
purposes,
provided that in the case of each of (i), (ii) and (iii), that where
the person is a company, it does not provide its commitment through or
in connection with a branch or agency in Ireland;
(c) it is a person to whom this Subordinated VLN may be transferred in
accordance with Condition 2.8 and 2.9; and
(d) it has executed a Subordinated VLN Holder Accession Letter in or
substantially in the form set out in Schedule 3 to the Subordinated VLN
Facility Agreement.
Signature(s) of transferee
----------------
----------------
VISTEON FINANCIAL CENTRE P.L.C. hereby approves the transfer.
----------------
Signature of VISTEON FINANCIAL CENTRE P.L.C.
Date:
----------------
Page 17
The Registrar hereby approves the transfer.
Signature of 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 Subordinated VLN 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, under the hand of two of
its officers duly authorised in writing and, the document so authorising 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 Subordinated VLN
Condition 2.5.
Page 18
SCHEDULE 2
TERMS AND CONDITIONS
The following is the text of the terms and conditions of the Subordinated VLNs
which (subject to completion and amendment) will be attached to each
Subordinated VLN.
The [EUR [_____]/ GBP [_____]/USD [_____]] (initial par value) Note (the
SUBORDINATED VLN, and together with each other note issued by the Master
Purchaser pursuant to the Subordinated VLN Facility Provider, the SUBORDINATED
VLNS) due 20[_____] of VISTEON FINANCIAL CENTRE P.L.C. (the MASTER PURCHASER) is
constituted by a variable funding agreement dated 14 August 2006 between the
Master Purchaser, Visteon Netherlands Finance B.V. (the SUBORDINATED VLN
FACILITY PROVIDER), The Law Debenture Trust Corporation p.l.c. (the SECURITY
TRUSTEE) and Citibank International plc (as FUNDING AGENT) (the Subordinated VLN
Facility Agreement). Certain provisions of these Subordinated VLN Conditions are
summaries of the Subordinated VLN Facility Agreement and are subject to its
detailed provisions including without limitation the provisions of Clauses 11,
12 and 13 thereof. The Subordinated VLN Holder (as defined below) is bound by,
and is deemed to have notice of, all the provisions of the Subordinated VLN
Facility Agreement applicable to it. Terms defined in the Subordinated VLN
Facility Agreement (including by cross reference or incorporation) shall, unless
otherwise defined herein or the context requires otherwise bear the same
meanings in these terms and conditions.
1. FORM, DENOMINATION AND STATUS
FORM AND DENOMINATION
1.1 The Subordinated VLN is in definitive registered form with the initial par
value of [EUR [_____]/GBP [_____]/USD [_____]] and thereafter in such other
amount as may from time to time be recorded in the Subordinated VLN Grid
attached to the Subordinated VLN or as recorded on behalf of the Master
Purchaser in the books and records of the Subordinated VLN Facility Provider.
STATUS
1.2 The Subordinated VLN constitutes a direct, secured (on a subordinated basis)
and unconditional obligation of the Master Purchaser.
2. TITLE AND TRANSFERS
TITLE
2.1 The Master Purchaser or the Corporate Administrator on its behalf (in such
capacity, the REGISTRAR) will cause to be kept, at the specified office of the
Registrar in Ireland, a register (the REGISTER) on which shall be entered the
names and addresses of the holders of each of the Subordinated VLNs from time to
time.
Page 19
2.2 Title to the Subordinated VLN will pass by and upon registration of
transfers in the Register. In these Subordinated VLN Conditions the HOLDER of
the Subordinated VLN or the SUBORDINATED VLN HOLDER means the person in whose
name such Subordinated VLN is for the time being registered in the Register.
Registration of ownership of the Subordinated VLN shall be conclusive evidence
(in the absence of manifest error) of absolute ownership of the Subordinated
VLN.
TRANSFERS
2.3 Subject to Subordinated VLN Conditions 2.6 and 2.7 below, the Subordinated
VLN may be transferred in whole (but not in part) upon surrender of the
Subordinated VLN at the specified office of the Registrar, with the form of
transfer endorsed on the Subordinated VLN duly completed and signed by or on
behalf of the transferor and the Master Purchaser and together with such
evidence as the Registrar may reasonably require to prove:
(a) the title of the transferor;
(b) the authority of the individuals who have executed the form of transfer;
(c) the payment of any stamp duty payable on such transfer;
(d) that the transferee is either (x) not a US Person and is acquiring the
Subordinated VLN for its own account or for the account or benefit
exclusively of non-US Persons outside the United States in an offshore
transaction (as defined in Regulation S) in accordance with Regulation S or
(y) an Accredited Investor acquiring the Subordinated VLN for its own
account and not with a view towards, or for resale in connection with, the
public sale or distribution thereof, except in accordance with a
transaction exempt from registration under the Securities Act; and
(e) that the transferee is:
(i) a person which is resident in a territory that has a double
taxation treaty with Ireland, under the laws of that territory,
or in a Member State of the European Communities (other than
Ireland), under the laws of that Member State; or
(ii) a US company, provided that the US company is incorporated in the
US and subject to tax in the US on its worldwide income; or
(iii) a US LLC, provided that the ultimate recipients of the interest
are resident in a territory that has a double taxation treaty
with Ireland, under the laws of that territory, or in a Member
State of the European Communities (other than Ireland) under the
laws of that Member State and the business conducted through the
LLC is so structured for market reasons and not for tax avoidance
purposes;
Page 20
provided that in the case of each of (i), (ii) and (iii), that
where the person is a company, it does not provide its commitment
through or in connection with a branch or agency in Ireland; and
(iv) a person to whom the Subordinated VLN may be transferred in
accordance with Subordinated VLN Conditions 2.8 to 2.10
(inclusive) below.
PROVIDED THAT NO SUBORDINATED VLN MAY BE TRANSFERRED TO ANY PERSON AND ANY
PURPORTED TRANSFER SHALL BE OF NO EFFECT UNLESS AND UNTIL:
1. the prior written consent of each of the Master Purchaser, the Funding
Agent and the Collateral Monitoring Agent has been obtained; and
2. the transferee has executed a Subordinated VLN Holder Accession Letter in
or substantially in the form set out in Schedule 3 to the Subordinated VLN
Facility Agreement.
REGISTRATION AND DELIVERY OF THE SUBORDINATED VLN
2.4 Within 5 Business Days of the surrender of the Subordinated VLN in
accordance with Subordinated VLN Condition 2.3 above (or such longer period as
may be required to comply with any applicable fiscal or other laws or
regulations), the Registrar will register the transfer in question and deliver
at the Registrar's specified office a new Subordinated VLN 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.
NO CHARGE
2.5 Subordinated VLN Holders will not be required to bear the costs and expenses
of effecting any registration of transfer as provided above, except for any
costs or expenses of delivery other than by regular mail and except that the
Master Purchaser will require the payment by a transferee Subordinated VLN
Holder of a sum sufficient to cover any stamp duty, tax or other governmental
charge that may be imposed in relation to the registration.
CLOSED PERIODS
2.6 No Subordinated VLN Holder may require a transfer to be registered during
the period of three (3) Business Days ending on the due date for any payment in
respect of the Subordinated VLN.
REGISTRAR
2.7 The Master Purchaser reserves the right at any time with the consent of the
Security Trustee to vary or terminate the appointment of, or resign as, the
Registrar and to appoint another Registrar. Notice of any resignation,
termination or appointment and of any changes in specified offices will be given
to the Subordinated
Page 21
VLN Holders promptly by the Master Purchaser in accordance with the Framework
Deed.
RESTRICTIONS ON TRANSFEREES
2.8 The Subordinated VLN may not be offered or sold to any person in the United
Kingdom in circumstances which would require a prospectus to be made available
to the public pursuant to Part VI of the Financial Services and Xxxxxx Xxx 0000.
2.9 The Subordinated VLN may not be:
(a) offered in Ireland in circumstances that would require the publication of a
prospectus in respect of the Subordinated VLNs (and the offer thereof) in
accordance with the Prospectus (Directive 2003/71/EC) Regulations 2005;
(b) the subject of a local offer (within the meaning of section 38(1) of the
Investment Funds, Companies and Miscellaneous Provisions Xxx 0000 of
Ireland); and
(c) offered other than in compliance with all applicable provisions of the
Investment Intermediaries Acts 1995 to 2000 of Ireland (as amended).
2.10 This Subordinated VLN may only be transferred to a person that is either
(x) not a US Person and is acquiring this Subordinated VLN for its own account
or for the account or benefit exclusively of non-US Persons or (y) an Accredited
Investor acquiring this Subordinated VLN for its own account and not with a view
towards, or for resale in connection with, the public sale or distribution
thereof, except in accordance with a transaction exempt from registration under
the Securities Act.
2.11 Any transfer to a person other than as permitted in this Condition 2 shall
be null and void.
2.12 The Subordinated VLN 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 OR OTHER JURISDICTION, AND ACCORDINGLY MAY NOT BE
OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED
STATES OF AMERICA, OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
(AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS."
Page 22
3. INTEREST
SETTLEMENT DATES AND INTEREST PERIODS
3.1 The Subordinated VLN bears interest on its Subordinated VLN Principal Amount
Outstanding from (and including) the Funding Date, to (but excluding) the date
on which its Subordinated VLN Principal Amount Outstanding is paid in full.
3.2 Interest on the Subordinated VLN is payable in arrears on each Monthly
Settlement Date in respect of the Interest Period ending on that Monthly
Settlement Date. Interest with respect to each Interest Period shall accrue from
(and including) the first day of such Interest Period to (but excluding) the
last day of such Interest Period. If any Settlement Date would otherwise fall on
a day which is not a Business Day, it shall be postponed to the next day which
is a Business Day unless it would thereby fall into the next calendar month in
which event the Settlement Date shall be the immediately preceding business day.
3.3 Interest shall cease to accrue on the Subordinated VLN as from (and
including) the Subordinated VLN Final Maturity Date or the date on which a
Subordinated VLN Termination Event has occurred and be continuing unless, upon
due presentation payment of principal due is improperly withheld or refused, in
which case it will continue to bear interest in accordance with this
Subordinated VLN Condition 3 (after as well as before judgement) at the rate
from time to time applicable to the Subordinated VLN until the moneys in respect
thereof have been received by the Subordinated VLN Holder and notice to that
effect is given in accordance with the Framework Deed.
RATE OF INTEREST
3.4 The Subordinated VLN will bear interest on the Subordinated Loan Principal
Amount Outstanding at the rate equal to the aggregate of 4.00 per cent. per
annum and [USD LIBOR]/[GBP LIBOR]/[EURIBOR](1) (the SUBORDINATED VLN INTEREST
RATE).
PAYMENT OF INTEREST
3.5 Subject to Subordinated VLN Condition 10 an amount of interest calculated in
accordance with Subordinated VLN Condition 3.6 (the INTEREST AMOUNT) will be
payable in respect of the Subordinated Loan Principal Amount Outstanding in
arrears on the Monthly Settlement Date in respect of the Interest Period ending
on (but excluding) that Monthly Settlement Date.
CALCULATION OF INTEREST AMOUNT
3.6 The Interest Amount for the Subordinated VLN in respect of an Interest
Period shall be calculated by the Funding Agent by applying the Subordinated VLN
Interest Rate for such Interest Period to the then Subordinated VLN Principal
Amount Outstanding of the Subordinated VLN, multiplying the product by [[the
actual number
----------
(1) Delete as applicable.
Page 23
of days in such Interest Period divided by 365](2) /[the actual number of days
in such Interest Period divided by 360](3) / [the actual number of days in such
Interest Period divided by 360](4)].
4. REDEMPTION
OPTIONAL REDEMPTION
4.1 The Subordinated VLN may be redeemed at the option of the Master Purchaser
(with the prior written consent of the Security Trustee) in whole (or in part)
at its Subordinated VLN Principal Amount Outstanding (or a proportion thereof)
on any Settlement Date by the Master Purchaser giving at least ten (10) Business
Days' written notice to the Subordinated VLN Facility Provider prior to the
relevant Settlement Date.
MANDATORY REDEMPTION
4.2 On each Settlement Date, the Subordinated VLN will be subject to mandatory
redemption in part in an amount equal to the amount (if any) by which its
Subordinated VLN Principal Amount Outstanding on that date exceeds the
[EUR/GBP/USD](5) Subordinated VLN Required Amount as at such date provided that
no such amount shall be repayable to the extent that, prior to the Programme
Termination Date, such repayment would result in the Subordinated VLN Principal
Amount Outstanding of the Subordinated VLN being less then [EUR]/[USD]/[GBP]
1,000.
4.3 If a payment of Further Subscription Price is paid to the Master Purchaser
(as Issuer) on a date other than a Settlement Date in respect of Notes
denominated in the same Agreed Currency as the Subordinated VLN, the
Subordinated VLN will on the date of payment of such Further Subscription Price
be subject to mandatory redemption in part in an amount equal to the amount of
such Further Subscription Price multiplied by the fraction calculated by
dividing the Subordinated VLN Principal Amount Outstanding of the Subordinated
VLN by the aggregate of the Subordinated VLN Principal Amount Outstanding of all
Subordinated VLNs denominated in that Agreed Currency.
4.4 Following the Programme Termination Date, the Subordinated VLN will, on each
Settlement Date thereafter, be subject to mandatory redemption in an amount
equal to the lower of (a) its Subordinated VLN Principal Amount Outstanding and
(b) the Master Purchaser Available Funds remaining after satisfaction in full of
all amounts ranking in priority to payment of principal in respect of the
Subordinated VLN in the applicable Master Purchaser Priorities of Payments (each
such payment together with any redemption payment made or to be made in
accordance with
----------
(2) Include if Note is denominated in GBP.
(3) Include if Note is denominated in USD.
(4) Include if Note is denominated in EUR.
(5) Delete as applicable.
Page 24
Subordinated VLN Conditions 4.1, 4.2, and 4.3 a SUBORDINATED VLN PRINCIPAL
PAYMENT)
DETERMINATIONS AND CALCULATIONS
4.5 Following a Subordinated VLN Principal Payment, the Funding Agent (acting
for and on behalf of the Master Purchaser) shall determine the new Subordinated
VLN Principal Amount Outstanding of the Subordinated VLN on the basis of the
Subordinated VLN Grid and the books and records of the Subordinated VLN Facility
Provider. Each determination by the Funding Agent (acting for and behalf of the
Master Purchaser) of the amount of such Subordinated VLN Principal Amount
Outstanding shall (in the absence of wilful default, bad faith or manifest
error) be final and binding on all persons. The Master Purchaser will cause each
determination of such new Subordinated VLN Principal Amount Outstanding to be
reflected in the Subordinated VLN Grid and the books and records of the
Subordinated VLN Facility Provider.
REDEMPTION ON MATURITY
4.6 If not otherwise redeemed and cancelled, the Subordinated VLN will be
redeemed (subject to available funds) at its then Subordinated VLN Principal
Amount Outstanding on the Subordinated Note Final Maturity Date. The
Subordinated VLN may be redeemed in whole or in part prior to such date in
accordance with Subordinated VLN Conditions 4.1 and 4.2, but without prejudice
to Subordinated VLN Condition 6.
PURCHASE
4.7 The Master Purchaser shall not be entitled to purchase the Subordinated VLN
at any time.
CANCELLATION
4.8 If the Subordinated VLN is redeemed in full pursuant to the foregoing
provisions it will be cancelled forthwith and may not be resold or reissued.
EXTENSION OF MATURITY
4.9 The Master Purchaser may request the Subordinated VLN Holder to agree to an
extension of the Subordinated Note Final Maturity Date and if, in the
Subordinated VLN Holder's sole discretion, the Subordinated VLN Holder agrees to
such request in writing, the date agreed shall thereafter be the "Subordinated
VLN Final Maturity Date".
5. TAXES
PAYMENT WITHOUT WITHHOLDING
5.1 All sums payable to the Subordinated VLN Holder in respect of the
Subordinated VLN shall be paid free and clear of, and without withholding or
Page 25
deduction for, or on account of, any Tax unless the Master Purchaser is required
by law to make such a payment subject to the withholding or deduction of Tax.
NOTICE OF OBLIGATION TO WITHHOLD
5.2 If, at any time, the Master Purchaser is required by law to make any
withholding or deduction from any sum payable by it in respect of the
Subordinated VLN (or if thereafter there is any change in the rate at which or
the manner in which such withholding or deduction is calculated), the Master
Purchaser shall promptly notify the Subordinated VLN Holder.
PAYMENT OF WITHHOLDING
5.3 If the Master Purchaser makes any payment hereunder in respect of which it
is required to make any withholding or deduction of Tax, it shall pay the full
amount required to be withheld or deducted to the relevant taxation or other
authority within the time allowed for payment to the applicable authority. An
original receipt (or a certified copy thereof) issued by such authority or other
evidence reasonably satisfactory to the Subordinated VLN Holder shall be
evidence of the payment to such authority of all amounts so required to be
withheld or deducted in respect of such payment and the Master Purchaser shall
deliver such receipt to such Subordinated VLN Holder within thirty (30) days
after it has made such payment or when such receipt is available (whichever is
later).
6. SUBORDINATED VLN TERMINATION EVENTS
SUBORDINATED VLN TERMINATION EVENTS
6.1 Each of the following events is a SUBORDINATED VLN TERMINATION EVENT in
respect of the Subordinated VLN:
(a) a Termination Event has occurred and has not been waived; and
(b) any Subordinated VLN becomes repayable, subject always to Clause 10.2 of
the Subordinated VLN Facility Agreement, in accordance with Clause 10.1 of
the Subordinated VLN Facility Agreement.
COVENANT OF THE MASTER PURCHASER
6.2 So long as any amount remains outstanding under the Subordinated VLN, the
Master Purchaser or the Funding Agent will promptly upon becoming aware of any
Subordinated VLN Termination Event in respect of the Subordinated VLN give
notice in writing thereof to the Subordinated VLN Holder.
7. EFFECT OF SUBORDINATED VLN TERMINATION EVENT
7.1 At any time after:
(a) the occurrence of a Subordinated VLN Termination Event; or
Page 26
(b) the failure on the Subordinated VLN Final Maturity Date of the Subordinated
VLN Holder to have received the Subordinated VLN Principal Amount
Outstanding of the Subordinated VLN in full together with any amount of
interest and other amounts calculated in respect thereof,
and without prejudice to its rights of enforcement in relation to the Master
Purchaser Deed of Charge, and PROVIDED ALWAYS that the Notes issued under the
Variable Funding Agreement shall have become due and payable or shall have been
redeemed in full, the Subordinated VLN Holder may declare by written notice to
the Master Purchaser (copied to the Security Trustee) the Subordinated VLN
Principal Amount Outstanding of the Subordinated VLN to be immediately due and
payable together with accrued interest thereon and any other sums then owed by
the Master Purchaser hereunder. Any amounts then payable will be paid in
accordance with the terms of the Master Purchaser Deed of Charge. The security
under the Master Purchaser Deed of Charge will become enforceable only as
provided in the Master Purchaser Deed of Charge.
7.2 A Subordinated VLN Holder may, at its option, by notice in writing to the
Master Purchaser (copied to the Security Trustee) withdraw any notice previously
given under Subordinated VLN Condition 7.1 whereupon such notice shall cease to
have effect.
7.3 After realisation of the Master Purchaser Secured Property and distribution
of the net proceeds thereof by the Security Trustee in each case in accordance
with the provisions of the Master Purchaser Deed of Charge, the Subordinated VLN
Holder may not take any further steps against the Master Purchaser or any of its
assets to recover any sums unpaid in respect of the Subordinated VLN and all
claims against the Master Purchaser in respect of any such unpaid sum shall be
extinguished.
8. PAYMENTS AND CALCULATIONS
8.1 On each date on which these Subordinated VLN Conditions require an amount to
be paid by the Master Purchaser in respect of the Subordinated VLN, the Master
Purchaser shall make the same available to the Subordinated VLN Holder by
payment in [EUR/GBP/USD](6) and in immediately available cleared funds to the
Subordinated VLN Holder's [EUR/GBP/USD](7) Account.
8.2 If the date on which any payment is to be made under the Subordinated VLN
Conditions is not a Business Day then the Subordinated VLN Holder shall not be
entitled to payment of such amount until the next following Business Day and
shall not be entitled to any further interest or other payment in respect of any
such delay.
8.3 All payments due and payable by the Master Purchaser in accordance with
these Subordinated VLN Conditions shall only be made to the extent that it has
----------
(6) Delete as applicable.
(7) Delete as applicable.
Page 27
sufficient funds available to it in accordance with the terms of the Master
Purchaser Deed of Charge.
9. REPLACEMENT OF NOTE
If a Subordinated VLN issued and outstanding at any time is lost, stolen,
mutilated, defaced or destroyed, it may be replaced at the specified office of
the Master Purchaser, subject to all applicable laws, upon payment by the
claimant of the expenses incurred in connection with such replacement and on
such terms as to evidence, security, indemnity and otherwise as the Master
Purchaser may reasonably require. Mutilated or defaced Notes must be surrendered
before replacements will be issued.
10. CALCULATION OF INTEREST DUE AND PAYABLE
10.1 Interest on the Subordinated VLN shall be payable in accordance with the
provisions of Subordinated VLN Condition 3, subject to the terms in this
Subordinated VLN Condition 10.
10.2 In the event that Master Purchaser Available Funds on any Settlement Date
for application in or towards the payment of interest and principal which is,
other than by virtue of this Subordinated VLN Condition, due on the Subordinated
VLN on such Settlement Date are not sufficient to satisfy in full the aggregate
amount of interest and principal which is, other than by virtue of this
Subordinated VLN Condition, due on the Subordinated VLN on such Settlement Date
(such aggregate amount of unpaid interest and principal being referred to in
this Subordinated VLN Condition as the RESIDUAL AMOUNT) then the Residual Amount
shall not be due and payable on such Settlement Date, but the Master Purchaser
shall create a provision in its accounts equal to the Residual Amount, and such
shortfall shall accrue interest during each Interest Period for which it remains
outstanding at the rate of interest applicable to the Subordinated VLN (as
determined pursuant to these Subordinated VLN Conditions) for such Interest
Period, the Residual Amount and such shortfall and accrued interest thereon
shall be aggregated with the amount of, and treated for the purposes of this
Subordinated VLN Condition as if it were interest due, subject to this
Subordinated VLN Condition on the Subordinated VLN on the next succeeding
Settlement Date.
11. REMEDIES AND WAIVERS
No failure by the Subordinated VLN Holder to exercise, nor any delay by the
Subordinated VLN Holder in exercising any right or remedy in respect of the
Subordinated VLN shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy prevent any further or other exercise
thereof or the exercise of any other right or remedy. The rights and remedies
herein provided are cumulative and not exclusive of any other rights or remedies
(whether provided by law or otherwise).
12. PARTIAL INVALIDITY
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction neither the
legality, validity or
Page 28
enforceability of the remaining provisions hereof nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
13. GOVERNING LAW
These Subordinated VLN Conditions and the Subordinated VLN are governed by, and
shall be construed in accordance with English law. The provisions of Clause 4 of
the Framework Deed shall apply to this Subordinated VLN.
14. MODIFICATION
Any modification to these Subordinated VLN Conditions must be agreed in writing
between the Master Purchaser, the Subordinated VLN Holder, the Funding Agent and
the Security Trustee and will be binding on all future Subordinated VLN Holders.
Page 29
THE SCHEDULE
GRID
FOR RECORDING INCREASES AND REDUCTIONS IN
THE SUBORDINATED VLN PRINCIPAL AMOUNT OUTSTANDING OF THE SUBORDINATED VLN
SUBORDINATED VLN
PRINCIPAL AMOUNT AMOUNT OF DATE OF AMOUNT OF DATE OF
DATE OF CHANGE OUTSTANDING INCREASE INCREASE REDUCTION REDUCTION
-------------- ---------------- --------- -------- --------- ---------
On issue [EUR [_____]/
GBP [_____]/USD
[_____]] -- -- -- --
Page 30
SCHEDULE 3
FORM OF SUBORDINATED VLN HOLDER ACCESSION LETTER
[Date] ____________
To: VISTEON FINANCIAL CENTRE P.L.C.
(the MASTER PURCHASER)
[and other parties]
We refer to the Subordinated VLN Facility Agreement (the SUBORDINATED VLN
FACILITY AGREEMENT) dated 14 August 2006 between the Master Purchaser, Visteon
Netherlands Finance B.V. (the SUBORDINATED VLN FACILITY PROVIDER), The Law
Debenture Trust Corporation p.l.c. (the SECURITY TRUSTEE) and Citibank
International plc (as FUNDING AGENT).
Terms defined in, or incorporated by reference into, the Subordinated VLN
Facility Agreement shall have the same meanings herein as therein.
We confirm that we are in receipt of the following documents and have found them
to our satisfaction:
(a) a copy of the Subordinated VLN Facility Agreement;
(b) a copy of the Framework Deed;
(c) a copy of the Master Purchaser Deed of Charge; and
(d) a copy of current versions of all other Transaction Documents as we have
requested.
For the purposes of Clause 6 of the Framework Deed our notice details are as
follows:
________________________________________________________________________________
[insert name, address, telephone, facsimile and attention].
[_____], being the current registered holder, is proposing to transfer to us in
accordance with Subordinated VLN Condition 2.3 of the Subordinated VLN.
In consideration of our accession to the Subordinated VLN Facility Agreement
pursuant to this letter, we hereby undertake with effect from the date hereof,
for the benefit of the Master Purchaser and each of the other parties to the
Subordinated VLN Facility Agreement, that, in relation to our holding of the
Subordinated VLN, we will perform and comply with all the duties and obligations
expressed to be assumed by the Subordinated VLN Holder under the Subordinated
VLN Facility Agreement and the Master Purchaser Deed of Charge and will have the
benefit of all the provisions of
Page 31
the Subordinated VLN Facility Agreement and the Master Purchaser Deed of Charge
as if we were named in it as the Subordinated VLN Holder.
In addition, we hereby make each of the representations and warranties to be
made by each Subordinated VLN Facility Provider pursuant to Clauses 9.4 through
9.8 of the Subordinated VLN Facility Agreement.
This letter is governed by, and shall be construed in accordance with, English
law.
Signed by
THE ACCEDING SUBORDINATED VLN FACILITY PROVIDER
SIGNED by )
for and on behalf of )
[_____] )
THE EXISTING SUBORDINATED VLN FACILITY PROVIDER
SIGNED by )
for and on behalf of )
[_____] )
THE MASTER PURCHASER
SIGNED by )
for and on behalf of )
VISTEON FINANCIAL CENTRE )
PLC )
THE SECURITY TRUSTEE
SIGNED by )
for and on behalf of )
THE LAW DEBENTURE TRUST )
CORPORATION P.L.C. )
Page 32
THE FUNDING AGENT
SIGNED by )
for and on behalf of )
CITIBANK INTERNATIONAL PLC )
Page 33
SCHEDULE 4
REPRESENTATIONS AND WARRANTIES OF THE MASTER PURCHASER
(a) STATUS: it is duly incorporated with limited liability and validly existing
under the laws of Ireland;
(b) POWERS AND AUTHORISATIONS: 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: 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, reorganisation, 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);
(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 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 organisation
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 which contains or establishes its constitution;
(e) CONSENTS: save in respect of:
(i) the registration of the Master Purchaser Deed of Charge with the
Registrar of Companies in accordance with the ruling in Re Slavenburg
and the provisions of Chapter I of Part XII of the Companies Xxx 0000;
(ii) the delivery of all necessary particulars of the security created
pursuant to the Master Purchaser Security Documents in the prescribed
form to
Page 34
the Registrar of Companies in Ireland within 21 days of the creation
of such security in accordance with section 99 of the Companies Act,
1963 (as amended) of Ireland;
(iii) the delivery of the particulars of such security (constituting a
fixed charge over book debts) to the Revenue Commissioners in Ireland
in accordance with section 1001 of the Taxes Consolidation Act, 1997
(as amended) of Ireland and
(iv) the stamping by the Revenue Commissioners in Ireland of the original
of the Master Purchaser Deed of Charge with E630, each counterpart
thereof with E12.50 and any of the Master Purchaser Security Documents
that are collateral thereto with E12.50 in respect of Irish Stamp
Duty,
no authorisation, approval, consent, exemption, registration,
recording or filing and no payment of any duty or tax and no other
action whatsoever which has not been duly and unconditionally
obtained, made or taken or which is expressly provided in the
Transaction Documents as is only being required to be obtained, made
or taken at a particular time or in certain circumstances is required
to ensure:
(A) the creation, validity, legality, enforceability or priority of
its liabilities and obligations or of the rights of the
Subordinated VLN Facility Provider against it under the
Transaction Documents; or
(B) to perform its obligations under the Transaction Documents; or
(C) to issue the Subordinated VLN;
(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
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,
examinership or reorganisation; 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
Page 35
body or otherwise and which, if adversely determined, could reasonably be
expected to have a Material Adverse Effect on its ability to perform its
obligations under the terms of the relevant Transaction Document exists or
is threatened to exist at the present time; and
(i) FINANCIAL STATEMENTS: its audited financial statements for its most
recently-ended financial year have been prepared in accordance with
generally accepted accounting principles, consistently applied, and present
a true and fair view of its financial condition on such date and the
results of its operations for the financial year ended on such date;
(j) SECURITY: the Master Purchaser Security Documents create the Encumbrances
they purport to create and are not liable to be avoided or otherwise set
aside on the occurrence of an event of insolvency in respect of the Master
Purchaser or otherwise;
(k) NO ADVERSE CLAIM OVER THE MASTER PURCHASER SECURED PROPERTY: no Encumbrance
exists over any Master Purchaser Secured Property other than the security
created under the Master Purchaser Security Documents; and
(l) ACTIVITIES: the Master Purchaser has not engaged in any activities since
the date of its incorporation other than those incidental to its
incorporation and its entry into and exercise of its rights and performance
of its obligations under the Transaction Documents to which it is a party.
Page 36
SCHEDULE 5
FORM OF SUBORDINATED VLN INITIAL FUNDING REQUEST
To: VISTEON NETHERLANDS FINANCE B.V.
From: VISTEON FINANCIAL CENTRE P.L.C.
Date: [_____] 2006
Dear Sirs
SUBORDINATED VLN INITIAL FUNDING REQUEST
1. We refer to the Subordinated VLN Facility Agreement (as from time to time
amended, supplemented or novated) dated 14 August 2006 (the SUBORDINATED VLN
FACILITY AGREEMENT) and made between, inter alios, ourselves and yourselves.
2. Terms defined in (or incorporated by reference into) the Subordinated VLN
Facility Agreement bear the same meaning herein.
3. We hereby request that you subscribe for:
(a) a EUR Subordinated VLN with an initial par value, and for a Subordinated
VLN Initial Subscription Price, of EUR [_____];
(b) a USD Subordinated VLN with an initial par value, and for a Subordinated
VLN Initial Subscription Price, of USD [_____]; and
(c) a GBP Subordinated VLN with an initial par value, and for a Subordinated
VLN Initial Subscription Price, of GBP [_____].
4. The Subordinated VLN Final Maturity Date of the Subordinated VLNs will be
20[_____].
5. We warrant that each of the representations referred to in Schedule 4 of the
Subordinated VLN Facility Agreement is true on and as of the date of this
Subordinated VLN Initial Funding Request.
Yours faithfully
------------------------------------
for and on behalf of
VISTEON FINANCIAL CENTRE P.L.C.
Page 37
SCHEDULE 6
REPRESENTATIONS AND WARRANTIES OF THE
SUBORDINATED VLN FACILITY PROVIDER
(a) STATUS: it is duly incorporated with limited liability and validly existing
under the laws of its jurisdiction of incorporation and is duly qualified
to do business (unless the failure to so qualify would not have a material
and adverse effect on its ability to observe or perform its obligations
under the Transaction Documents to which it is a party) in every
jurisdiction where the nature of its business requires it to be so
qualified;
(b) CAPACITY AND AUTHORISATION: the execution, delivery and performance by it
of this Agreement and each other Transaction Document to which it is a
party and any other documents to be delivered by it hereunder (i) are
within its corporate powers, (ii) have been duly authorised by all
necessary corporate action, (iii) do not contravene (a) its articles of
association, (b) any law, rule or regulation applicable to it, (c) any
contractual restriction binding on or affecting it or its property (unless
such contravention would not have a Material Adverse Affect) or (d) any
order, writ, judgement, award, injunction or decree binding on or affecting
it or its property; and it has duly executed and delivered this Agreement
and each other Transaction Document to which it is a party;
(c) CONSENTS: no authorisation or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by it of this Agreement or
any other Transaction Document to which it is a party or any other document
to be delivered by it hereunder, except for filings of the Security
Trustee's security interests and related actions;
(d) LEGAL VALIDITY: this Agreement and any other Transaction Document to which
it is a party constitutes its legal, valid and binding obligations
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, moratorium or other similar laws affecting the
rights of creditors generally;
(e) NO DEFAULT: no event has occurred which constitutes, or which with the
giving of notice or the lapse of time or the making of a relevant
determination, or some combination of such criteria, would constitute, a
contravention of, or default under, any such law, statute, decree rule,
regulation, order, judgment, injunction, decree, resolution, determination
or award or any agreement, document or instrument by which it or any of its
assets is bound or affected, being a contravention or default which could
reasonably be expected to materially and adversely to affect its ability to
observe or perform its obligations under the Transaction Documents to which
it is a party;
(f) SOLVENCY: it is solvent and able and expects to be 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
Page 38
and will not become insolvent or unable to pay its debts in consequence of
any other obligation or transaction contemplated in the Transaction
Documents to which it is a party;
(g) SUSPECT PERIOD:
(i) the transactions undertaken by it as described in the Transaction
Documents to which it is a party are transactions at an arm's length
consideration and will not be transactions at an undervalue within the
meaning of the insolvency laws of its jurisdiction of incorporation;
(ii) in entering into the transactions as described in the Transaction
Documents to which it is a party, it is acting without the intent to
defraud its creditors within the meaning of the insolvency laws of its
jurisdiction of incorporation;
(iii) in entering into the transactions as described in the Transaction
Documents to which it is a party, its purpose was not to put assets
beyond the reach of a person who is making, or may at some future time
make, a claim against it or of otherwise prejudicing the interests of
such a person in relation to the claim which he is making or may make;
and
(iv) it is entering into the transactions as described in the Transaction
Documents to which it is a party (including all obligations to be
assumed by it in connection therewith) in good faith and for the
purpose of carrying on its business.
(h) NO LITIGATION: no actual, pending or (to the best of its knowledge)
threatened investigation, proceedings or 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 in relation to the
validity of the Agreement in any of the Transaction Documents or the
transactions thereunder and which, if adversely determined will have a
material adverse effect on its ability to perform its obligations under the
terms of the relevant Transaction Documents exists at the present time;
(i) INSOLVENCY PROCEDURES: no corporate action has been taken or is pending,
and, to the knowledge of the Subordinated VLN Facility Provider, no other
steps have been taken and no legal proceedings have been commenced or are
threatened or are pending for:
(i) its winding-up, bankruptcy, suspension of payments, liquidation,
dissolution, administration or reorganisation; 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.
Page 39
No event equivalent to any of the foregoing has occurred in or under
the laws of any relevant jurisdiction; and
Page 40
