106762928
DISCOUNT AGREEMENT
(Slovenia)
This Discount Agreement dated as of __________ __, 201_ is between
____________________________ (“Supplier”) and Orbian Financial Services II Limited, as
purchaser (“OFS” and, together with the Supplier, the “Parties”).
Background
A.
The Supplier has entered into commercial transactions with Siemens AG, München and
Berlin, Germany, and/or one or more of its Permitted Affiliates (each a “Buyer”) that
have generated Receivables, and may in the future enter into commercial transactions
with a Buyer that would generate additional Receivables. To facilitate the processing of
such Receivables, the Supplier and OFS have executed the License and Settlement
Agreement dated as of ___________ __, 201_ (as amended, supplemented or otherwise
modified and in effect from time to time, the “License and Settlement Agreement”).
B.
From time to time, the Supplier wishes to sell to OFS and OFS wishes to purchase from
the Supplier, the Receivables, pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, the Supplier and OFS agree as follows:
1.
Definitions.
In this Agreement:
“Affiliate” means any corporation, association or other entity that is directly or indirectly
wholly owned by Siemens AG.
“Agreement” means this Discount Agreement together with any attachments hereto, as
such may be amended, supplemented or otherwise modified in writing and in effect from time to
time in accordance with its terms.
“Auto-Discount Account” - means an account type whereby the Supplier agrees to
automatically sell to OFS all of the Supplier’s Receivables immediately upon issuance of a
Payment Notification for those Receivables being entered into the Orbian System.
“Buyer” means an Affiliate or Siemens AG in its function as a buyer under a Supply
Contract.
“Collateral Security” means all security rights which are related to or arise from the
Eligible Receivable including all retention of title rights and security interests in respect of assets
serving as the Supplier’s security in respect of the Eligible Receivables.
“Documentation” means the information provided to Supplier in connection with use of
the Orbian System.
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“Discount Proceeds” has the meaning given in Annex 2 “Pricing Schedule”.
“Eligible Receivable” means any Receivable that complies with the eligibility criteria
specified in Annex 1.
“Equipment” means all equipment provided by or on behalf of Orbian Management
Limited for the purpose of accessing or using the Orbian System, including, without limitation
all authentication products.
“License and Settlement Agreement” has the meaning given in Clause A of the
Background.
“Licensed Resources” means the Documentation, Equipment and Software.
“Manual-Discount Account” means an account type whereby the Supplier has the option
to manually select which Receivables it would like to assign and sell to OFS and the timing of
such sale of Receivable.
“Offer For Purchase” has the meaning given in Clause 2.
“Orbian System” means the electronic settlement system as specified in the
Documentation made available to the Supplier hereunder and any copyright, trademark, patent,
database, software or other intellectual property rights relating thereto, including any
embodiment of such intellectual property rights.
“Payment Amount” means the amount that is due from a Buyer on the specified date, as
contained in the Payment Notification(s).
“Payment Notification” means, with respect to a Receivable owed by a Buyer, the
notification sent by OFS to the Supplier through the Orbian System, notifying the Supplier that
such Buyer has instructed OFS to make payment from funds to be provided by the Buyer of a
specified amount on a specified date in full or partial payment of such Receivable.
“Prior Encumbrance” shall have the meaning set forth in Clause 6.
“Receivable” means the payment obligation of a Buyer in relation to the (purchase) price
of the goods delivered or the services performed by the Supplier under a Supply Contract.
“Single Purchase and Assignment Agreement” has the meaning given in Clause 3.
“Software” means all software, programming or object code provided by Orbian
Management Limited to Supplier for utilizing the Orbian System on a computer or a like device
to use the Orbian System.
“Supply Chain Finance Program” means the settlement and purchase of Receivables
through the Orbian System in Europe in which various suppliers of the Siemens AG and of the
Affiliates participate.
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“Supply Contract” means a contract for the purchase of goods and/or services between a
Buyer and the Supplier for the purchase of goods and/or services, resulting in payment
obligations owed by such Buyer to the Supplier.
2.
Offer for Purchase. From time to time the Supplier may either (depending on the
option selected via the Orbian System), at its option offer to sell individual Eligible Receivables
(using a Manual-Discount Account), or offer to sell automatically all Eligible Receivables (using
an Auto-Discount Account), for which respectively a Payment Notification is issued, to OFS (an
“Offer for Purchase”) at a price equal to the Discount Proceeds. In case of a Manual-Discount
Account all Offers for Purchase will be made by the Supplier through the Orbian System by
marking the respective Receivable as being for sale.
Each Offer For Purchase will remain open until the earlier of its acceptance by OFS pursuant to
Section 3 below, its revocation in writing or through the Orbian System by the Supplier
(provided that such revocation is received by OFS prior to OFS’s acceptance of such Offer For
Purchase, if any) or its rejection in writing or through the Orbian System by OFS.
3.
Acceptance of Offer for Purchase. OFS, in its sole and absolute discretion, may
accept Supplier’s Offer for Purchase in respect of some or all Eligible Receivables only by
depositing the Discount Proceeds in Supplier’s designated bank account in accordance with the
terms of this Agreement and by marking the concerned Receivables as purchased Receivables in
the Orbian System. Simultaneously with the credit of the Discount Proceeds to Supplier’s
designated bank account and with the respective marking in the Orbian System a single purchase
and assignment agreement is concluded with respect to the Eligible Receivable to which the
deposit relates (“Single Purchase and Assignment Agreement”).
The Single Purchase and Assignment Agreement does not constitute and is not intended to result
in an assumption by OFS of any obligation of the Supplier or any other person or entity arising in
connection with the Eligible Receivables or any other obligations of the Supplier.
The Supplier hereby agrees that its obligations under this Agreement and any Offers For
Purchase issued by it shall – unless otherwise proscribed by non-dispositive legal provisions of
German law - not be affected by the invalidity, unenforceability, existence, performance or nonperformance of the relevant underlying Supply Contract, which (and any liability for which)
shall be between the Supplier and the Buyer only. It is the intention of the Supplier and OFS that
each sale of Receivables shall constitute a true sale, which sale will be absolute and irrevocable
and following to such sale, the Supplier shall have no further right to or in connection with such
Receivable.
Supplier agrees that payments to Supplier by Purchaser shall be inclusive of all taxes with
respect to the sale of any Receivable or any Discount Charge thereon.
4.
Designation of OFS. The Supplier hereby agrees to irrevocably and unconditionally
designate OFS on the Orbian System as the business entity to receive payment of the amount
specified in the related Payment Notification with respect to a Receivable. Subject to sentence 3
of this clause, the Supplier hereby acknowledges that the designation of OFS as the designated
payee on the Orbian System pursuant to this Clause 4 is absolute and final, and hereby covenants
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and agrees not to attempt to challenge, withdraw or revoke such designation. The Supplier
hereby agrees not to designate any other entity other than OFS as a designated payee on the
Orbian System. The Supplier may only revoke such designation in respect to Receivables for
which no Payment Notification was sent by OFS to the Supplier with ten 10 business days prior
written notice after receipt of such notice by OFS.
5.
Assignment of Eligible Receivables. The Supplier hereby assigns in advance to OFS all
Eligible Receivables (whether existing, future, conditional, unconditional, limited and unlimited)
and all of Supplier’s present and future rights, title and interest in, to and under the Eligible
Receivables. Together with the Eligible Receivable the Supplier assigns to OFS (provided they
have not already been subrogated by operation of law) the Collateral Security and all its future
claims against the respective Buyer (or any third party in whom the Collateral Security may be
vested) for the surrender of the Collateral Security which is or will be in its possession.
OFS hereby accepts the above assignments.
Both Parties agree that the Assignment of Eligible Receivables will be governed by the
substantive laws of Slovenia. OFS therefor obtains approval by the Buyer.
The Supplier hereby authorises and empowers OFS to exercise in relation to the Buyer in OFS’s
own name any and all unilateral rights of declaration and independent ancillary rights which (a)
are necessary to enforce payment of the purchased Eligible Receivables and/or realise the related
Collateral Security and (b) have not been transferred by way of assignment to OFS under this
Agreement. This authorisation shall not end upon the termination of this Agreement.
The aforementioned assignments and authorizations are subject to the respective Eligible
Receivable being offered by the Supplier pursuant to Clause 2 and a Single Purchase and
Assignment Agreement for its purchase being concluded pursuant to Clause 3.
For the avoidance of doubt, the Supplier agrees that as a result of the sale, purchase and
assignment of any Eligible Receivable as provided for in this Agreement the Supplier shall have
no further right of whatever nature to such Eligible Receivable and OFS shall have the full
benefits of ownership of such Eligible Receivables. The Supplier agrees to sign all such
documents, and take all such further actions, as OFS may reasonably request from time to time to
evidence this transfer of ownership.
Should the above mentioned advance assignment not be effective with respect to an individual or
all Eligible Receivables for whatever reason, it is hereby agreed that the respective Eligible
Receivables will be assigned to OFS upon conclusion of each Single Purchase and Assignment
Agreement between the Supplier and OFS, whereby the offer and acceptance of such assignment
are part of the Offer for Purchase and its acceptance by OFS.
In the event that the Supplier and OFS agree in writing to sell and purchase Eligible Receivables
which are not governed by Slovenian law, the Parties will ensure for these purposes that any and
all requirements in each applicable foreign jurisdiction for the effective assignment and transfer
of the Receivables and its perfection – including the requirements for a valid assignment vis-àvis debtors and any other third party - will be fulfilled.
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6.
Prior Encumbrance. In the event that any Eligible Receivable which the Supplier
wishes to Offer For Purchase pursuant to Clause 2 hereof has been assigned to any third party or
otherwise encumbered with a right of a third party (“Prior Encumbrance”) prior to such Offer
For Purchase being made with respect to such Eligible Receivable, the Supplier undertakes to (a)
notify OFS of such Prior Encumbrance (b) to identify to OFS the terms of such Prior
Encumbrance; and (c) to obtain a release of the Prior Encumbrance.
7.
Liability for Credit Risk.
Except as is set forth in this Agreement, at the time when OFS becomes the owner of any
Eligible Receivable (it will bear the risk that the Eligible Receivable is not paid by the respective
Buyer (“Credit Risk”).
8.
Representations and Warranties.
(a)
The Parties agree that each sold Receivable to OFS must on a continuing basis
until it is fulfilled comply with the following representations and warranties of the Supplier
(Representations and Warranties):
(i)
each Receivable, including the Collateral Security and ancillary rights,
exists and is legally enforceable, the existence and validity of the Receivable will not be
changed or affected subsequently;
(ii)
the Receivable is assignable and is not and will not be subject to or
affected by any defences or objections ;
(iii) the Receivable is free and clear of any third party rights and, at the time of
its assignment, is owned exclusively by the Supplier;
(iv)
the Supplier has accounted for the Receivable in its books and financial
statements consistent with generally accepted accounting principles; and
(v)
the Receivable is an Eligible Receivable.
(b)
If a Receivable does not fulfil the Representations and Warranties agreed in
Section 8 (a), OFS is entitled to exercise warranty rights. It shall not be required that OFS sets a
deadline prior to exercising its warranty rights.
(c)
In the event that the Credit Risk assumed by OFS shall occur, OFS' warranty
rights under Section 8 and 9 will remain unaffected and fully enforceable.
(d)
The Supplier’s liability for breach of the Representations and Warranties agreed
upon in Section 8 (a) will exist and be enforceable irrespective of whether OFS knew or should
have known (negligent or grossly negligent lack of knowledge) that the receivable does not or
will not at any time comply with the Representations and Warranties.
9.
Supplier's bona fida guarantee and Covenants of the Supplier.
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(a)
With respect to each sold Receivable, the Supplier provides OFS, irrespective of
the Supplier’s fault with the bona fida guarantee that the respective Receivable fulfils and will
fulfil the Representations and Warranties set forth in Section 8 (a) ("Bona Fida Guarantee“). If
the Supplier breaches any of the Bona Fida Guarantee, OFS may cancel the purchase of
Receivables in question and/or claim for damages compensations in lieu of performance,
irrespective of and in addition to any other rights OFS might have. The provisions set forth under
Section 8 (b) to and including (d) shall apply accordingly.
(b)
The Supplier warrants that it did not and will not: (i) sell, assign or transfer any
right, claim or interest in any Eligible Receivable offered by way of Offer for Purchase
hereunder to any person or entity other than OFS or (ii) grant, authorize, consent to, or suffer to
exist any security interest, lien or other claim or encumbrance on any Eligible Receivable offered
by way of Offer for Purchase hereunder other than in favor of OFS.
(c)
The Supplier represents to OFS by issuing an Offer for Purchase that as of the
date of each Offer for Purchase that (i) each Offer for Purchase, and all other transactions
between OFS and the Supplier, have been and will be made in good faith and without intent to
hinder, delay or defraud creditors of the Supplier; and that (ii) the information provided by the
Supplier through the Orbian System related to each Eligible Receivable that has been offered
hereunder to OFS is true and correct.
10.
Information, Data and Access. With respect to Eligible Receivables purchased and
assigned pursuant to Clauses 2 and 3 herein, the Supplier (i) will mark such Eligible Receivables
in its books in an appropriate way to evidence that OFS has purchased the related Eligible
Receivables as provided in this Agreement, and (ii) at OFS’s request, will transfer to OFS
possession and control of copies of all receipts, order slips, acceptances, and other records or
documentation in Supplier’s possession pertaining to the sale of goods and/or services to which
such Eligible Receivables relate. The Supplier will, at its expense, timely and fully perform and
comply with all material provisions required to be observed by it under the Supply Contracts
related to the Eligible Receivables.
11.
Limitation on Liability. The Supplier hereby acknowledges and agrees that OFS shall
have no other duties or obligations other than as specifically provided in Sections 12 and 15 of
this contract to the Supplier whatsoever under this Agreement other than its obligation to pay the
Discount Proceeds if it accepts an Offer For Purchase, in its sole discretion. OFS' liability
towards the Supplier under this Agreement for cases of gross negligence or willful misconduct
shall not be limited. In the event of mere negligence, OFS' liability is limited to typical and
foreseeable damages unless essential obligations of OFS under this Agreement are concerned. In
any event, OFS' liability vis-à-vis the Supplier for mere negligence shall be limited to an amount
of the Eligible Receivable at issue, less Discount Proceeds paid. OFS shall have no liability to
the Supplier hereunder with respect to any obligation of Orbian Management Limited, the Orbian
System or the Licensed Resources. The Supplier hereby acknowledges and agrees that the rights
of OFS under this Agreement (including, but not limited to, its rights with respect to purchased
Receivables) shall be separate and distinct from the obligations of Orbian Management Limited
to the Supplier and that OFS is entering into this Agreement in reliance on the Supplier’s
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undertakings hereunder, including but not limited to Supplier’s undertakings under Clause IV.2
of the License and Settlement Agreement, the acknowledgement under this Clause 11 and its
representations, warranties and undertakings under this Agreement and the License and
Settlement Agreement.
12.
Prohibition on Assignment, Notification.
(a)
In the event that the Supplier and Buyer did not agree upon a contractual
prohibition of assignment in a Supply Contract the Supplier and OFS agree as follows: The
Supplier hereby instructs and authorizes OFS to agree on behalf of the relevant Supplier with
regard to each present and future Supply Contract concluded or to be concluded between the
Supplier and each Buyer that the Supplier is not permitted and will not be permitted to assign
any Eligible Receivable resulting from such Supply Contract to any third party other than OFS
nor to dispose otherwise (e.g. by assignment of security ) of it without prior written consent of
the relevant Buyer and that the Eligible Receivables are and will be kept free and clear by the
Supplier of any third party rights. OFS herewith agrees with such instruction.
(b)
In the event that the Supplier and Buyer did agree upon a contractual prohibition
of assignment in a Supply Contract the Supplier and OFS agree as follows: The Supplier hereby
instructs and authorizes OFS to rescind on behalf of the Supplier a contractual prohibition of
assignment agreed upon between the Supplier and a Buyer under a Supply Contract concerning
the respective Receivable that is offered for purchase with regard to the purchase of OFS and to
agree on behalf of the Supplier with the relevant Buyer that the exclusive competent court for the
assertion of the Receivable against the Buyer shall be at the registered seat of the Buyer. OFS
herewith agrees with such instruction.
(c)
The Supplier hereby instructs and authorizes OFS and Orbian Management
Limited to notify each Buyer of the sale and assignment of each Receivable to OFS also on
behalf of the Supplier e.g. by sending a corresponding email to the Buyer (notification of
assignment) and to demand the Buyer to pay on and in connection with the Receivables
exclusively to OFS. OFS herewith agrees with such instruction. OFS and Siemens AG and its
Affiliates are entitled to demand the Supplier to notify the debtors on its own expenses of the
sale and assignment of all Receivables to OFS without undue delay. The Supplier agrees vis-àvis Siemens AG and its Affiliates that it will not revoke this instruction, authorization and rights
until the termination of this Agreement (third party beneficiary agreement).
13.
No Agent. OFS does exclusively act on its own behalf under and in connection with this
Agreement; Orbian is not entitled or authorized to represent or to act on behalf of Siemens AG or
any of its Affiliates, except for representation and authorization of OFS stipulated in Section 12.
14.
Data Protection. The Supplier agrees that the information and data entered into the
Orbian System by the Supplier may be disclosed to and used by Siemens AG and its Affiliates
for their own statistical and other evaluation purposes in relation to the Supply Chain Finance
Program.
15.
Confidentiality. Except as required by applicable law, the existence and content of this
Agreement, all information related to the Orbian System and all information related to the
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financing transactions in relation to this Agreement shall not be disclosed publicly or made
available to third parties by the Supplier or OFS without the prior written approval of the
respective other party. Buyers and Siemens Financial Services GmbH will not be considered as
third party in the meaning of this Clause 15. The Supplier agrees that Siemens AG and its
Affiliates may in their sole and absolute discretion provide any information and documentation
in relation to the business relationship with the Supplier to OFS and/or Orbian Management
Limited; this provision is concluded in favor of Siemens AG and its Affiliates (third party
beneficiary agreement).
16.
No Assignment. Neither the Supplier nor OFS may assign or delegate any of its rights or
obligations, and OFS may not delegate any of its obligations under this Agreement without the
prior written consent of the other parties hereto; provided, however, that OFS may assign its
rights under this Agreement in whole or in part to any bank for refinancing purposes.
17.
Termination. The Supplier and OFS may terminate this Agreement at will. Upon notice
of termination of this Agreement, the Supplier shall no longer issue Offers for Purchase to OFS
and OFS will no longer accept Offers for Purchase from the Supplier. In the event that the
Supplier becomes subject to any proceeding in insolvency or bankruptcy or the License and
Settlement Agreement terminates, this Agreement shall terminate automatically without notice or
any other action on the part of OFS or the Supplier.
18.
Governing Law; Jurisdiction. This Agreement and all matters arising out of or in any
way relating to this Agreement (the Single Purchase and Assignment Agreement in particular)
will be construed in accordance with and governed by the substantive laws of Slovenia without
regard to its conflicts of laws provisions. The application of the United Nations Convention on
Contracts for the International Sale of Goods of April 11, 1980 and the UNIDROIT Convention
on the International Factoring (Ottawa) shall be excluded.
The exclusive place of jurisdiction for all disputes between the Parties arising out of or in
connection with this Agreement shall be the appropriate courts of Slovenia.
Signatures appear on next page
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IN WITNESS WHEREOF, each of the Parties hereto has executed this Agreement as of the date
first above written.
ORBIAN FINANCIAL SERVICES II
LIMITED
By:
Name:
Title:
James D Houston
Managing Director
[Supplier]
By:
Name:
Title:
Address:
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Annex 1
Eligibility Criteria
A Receivable against the Buyer in relation to the (purchase) price of the goods delivered or the
services performed under a Supply Contract that may be offered for purchase to OFS has to
comply with the following eligibility criteria:
(i) the receivable originate from the sale of goods or the provision of services
(ii) the receivable originates in the Supplier’s ordinary course of business;
(iii) the receivable are undisputed by the relevant Buyer when offered for purchase;
(iv) the receivable is denominated and payable in Euro, US Dollar, Yen, Pounds Sterling or
(v)
(vi)
(vii)
(viii)
Danish Kroner;
the receivable is governed by Slovenian law;
the receivable is not subject to any current account agreement , to any prohibition of
assignment and any similar stipulation;
the receivable is documented through an invoice or any other comparable confirmation
of debt, as well as through other documents (including, without limitation, delivery
notes, confirmations of delivery or supply agreements, as the case may be) so that it can
be separated out and clearly identified at any time and the title of the owner of the
Receivable can be proven unequivocally in a manner capable of submission to local
courts; and
the exclusive place of jurisdiction for the assertion of the receivable is a competent court
of a member state of the European Union or of Slovenia.
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Annex 2
DISCOUNT AGREEMENT – PRICING SCHEDULE
This Pricing Schedule shall be incorporated by reference and made as a part of the Discount
Agreement. OFS reserves the right to modify this Pricing Schedule at any time upon written
notice.
Discount Proceeds means the Payment Amount minus Discount Charge.
Definitions:
“Discount Charge” - means the Payment Amount multiplied by the Discount Rate
multiplied by the Discount Period and divided by 360.
“Discount Period” - means the period starting from (and including) the date the
Discount Proceeds are paid to Supplier until (and excluding) the Payment Due Date.
“Discount Rate” - means the rate, in percent per annum, calculated as the sum of the
Spread and the LIBOR rate prevailing on that day.
“LIBOR”– means the relevant London Interbank Offered Rate (e.g., 3-month EUR) as
quoted that day by the British Bankers’ Association and published the following day in
the Wall Street Journal. The LIBOR rate applied will be derived from the Payment Due
Date of the Payment Notifications being Discounted, using linear interpolation between
rates where necessary.
“Payment Amount” means the amount that is due from a Buyer on the specified date,
as contained in the Payment Notification(s).
“Payment Due Date” means the date for payment by a Buyer of the Payment Amount
specified in the Payment Notification.
“Spread” – The Spread is 1.30% per annum for Suppliers using Auto-Discount Account
and 1.45% per annum for Suppliers using Manual-Discount Account.
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Example for illustration purposes only, actual rates and charges will vary:
Assumptions: a 3-month London LIBOR rate of 0.70% per annum, a Discount Period of
90 days, a Spread of 1.30% per annum and a Payment Amount of EUR 1,000,000.00.
Account Type: Auto-Discount Account
Indicative Discount Rate:
2.00% per annum (0.70% + 1.30%)
Indicative Discount Charge:
EUR 5,000.00, calculated as follows:
EUR 1,000,000.00 x 2.00% x (90 / 360) = EUR 5,000.00
Discount Proceeds received by Supplier would be EUR 995,000.00, calculated as follows:
EUR 1,000,000.00 - EUR 5,000.00 = EUR 995,000.00
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