Exhibit A
EXECUTION COPY
AMENDED AND RESTATED
FISCAL AGENCY AGREEMENT
Among
THE STATE TREASURY OF THE REPUBLIC OF POLAND
REPRESENTED BY THE MINISTER OF FINANCE
and
CITIBANK N.A., LONDON, Fiscal Agent
and
DEXIA BANQUE INTERNATIONALE A LUXEMBOURG, SOCIETE ANONYME
Luxembourg Listing and Paying Agent
-------------------------
Dated as of July 27, 2009
-------------------------
6.375% NOTES DUE 2019
AMENDED AND RESTATED FISCAL AGENCY AGREEMENT, dated as of July 27,
2009, by and among the State Treasury of the Republic of Poland, represented by
the Minister of Finance (the "State Treasury"), Citibank N.A., London, a banking
corporation organized and existing under the laws of The State of New York, as
Fiscal Agent (defined herein), and Dexia Banque Internationale a Luxembourg,
societe anonyme, as Luxembourg Agent (defined herein).
WHEREAS, the State Treasury, the Fisal Agent and the Luxembourg Agent
entered into a fiscal agency agreement dated as of July 15, 2009 (the "Original
Fiscal Agency Agreement"), under which the State Treasury issued $2,000,000,000
principal amount of 6.375% Notes due 2019.
WHEREAS, the State Treasury, the Fisal Agent and the Luxembourg Agent
agree that the Original Fiscal Agency Agreement is hereby amended and restated
in its entirety to reflect the State Treasury's further issue of $1,500,000,000
principal amount of 6.375% Notes due 2019, which Notes will be fully fungible,
and consolidated to form a single series, with the State Treasury's outstanding
$2,000,000,000 principal amount of 6.375% Notes due 2019.
WHEREAS, upon this Amended and Restated Fiscal Agency Agreement
becoming effective, the Original Fiscal Agency Agreement shall be amended and
restated as provided herein in its entirety.
1. The Notes. The State Treasury has agreed to issue $3,500,000,000
aggregate principal amount of 6.375% Notes due 2019 (the "Notes"). The State
Treasury reserves the right from time to time without the consent of the holders
of the Notes (the "Holders") to issue further securities having identical terms
and conditions, so that such securities may be consolidated with, form a single
series with and increase the aggregate principal amount of the Notes. The Notes
have been duly authorized by the State Treasury and when executed and delivered
in accordance with this Agreement will constitute valid and legally binding
obligations of the State Treasury.
The Notes are issuable in registered form, without coupons, in
denominations of $1,000, and shall be represented by a certificate substantially
in the form set forth in Exhibit A hereto, which are hereby incorporated by
reference herein, such certificates representing such aggregate principal amount
of the Notes as shall be specified therein. The Notes may have such letters,
numbers or other marks of identification or endorsements not referred to herein
placed thereon as may be required to comply with any law or with any rules made
pursuant thereto or with the rules of any securities exchange or governmental
agency or as may, consistently herewith, be determined by the authorized
signatory of the State Treasury, as conclusively evidenced by his or her
execution of the Notes. Any such legends or endorsements shall be furnished to
the Fiscal Agent in writing.
The Notes will bear interest at the rate of 6.375% per annum, computed
on the basis of a 360-day year of twelve 30-day months. Interest will be payable
semi-annually in arrears on January 15 and July 15 of each year (each an
"Interest Payment Date"), commencing January 15, 2010, to Holders of record at
the close of business on the preceding January 1 and July 1, respectively
(whether or not a business day) (each a "Record Date"). The principal of the
Notes will be payable on July 15, 2019. Notwithstanding anything to the contrary
provided herein, any payment of principal or interest falling due on a day which
is not a business day for the Fiscal Agent will be payable on the next
succeeding business day and no interest shall accrue for the intervening period.
In the event that Notes are issued in definitive form, interest will be paid by
check mailed to each Holder of record on the Record Date at the address of such
person as shown on the Note Register (defined herein). Any Holder of Notes, the
aggregate principal amount of which equals or exceeds $1,000,000, may, by
written notice to the Fiscal Agent no later than the Record Date, elect to
receive the interest payment in respect of such Notes, as applicable, by wire
transfer in same-day funds to a bank account maintained by such Holder in the
United States.
Principal of a Note will be paid to the Holder at maturity upon presentation of
such Note at the Corporate Trust Office (defined herein) of the Fiscal Agent.
Notwithstanding the foregoing, in the case of a Global Note (defined herein)
payments shall be made to DTC as is customary in arrangements between the Fiscal
Agent and DTC.
All payments of principal and interest in respect of the Notes are
subject in all cases to any applicable fiscal or other laws and regulations of
the Republic of Poland ("Poland").
The Notes will constitute general and unsecured obligations of Poland,
and the full faith and credit of Poland will be pledged for the due and punctual
payment of the principal of, and interest on, the Notes and for the performance
of all obligations of the State Treasury with respect thereto. The Notes will
rank pari passu among themselves and at least pari passu in right of payment
with all other present and future unsecured obligations of Poland, except for
such obligations as may be preferred by mandatory provisions of applicable law.
2. Appointment of Fiscal Agent and Paying Agent. The State Treasury
hereby appoints Citibank N.A., London as fiscal agent in respect of the Notes
upon the terms and subject to the conditions herein set forth. Citibank N.A.,
London, as such fiscal agent hereunder, until a successor fiscal agent shall
have been appointed, and thereafter such successor, is herein called the "Fiscal
Agent". The Fiscal Agent shall have the powers and authority granted to and
conferred upon it in the Notes and such further powers and authority to act on
behalf of the State Treasury as the parties agree in writing. The Fiscal Agent
at present has its corporate trust office at Citigroup Centre, Canada Square,
London E14 5LB, UK (facsimile: x00 0000 000 0000/5877), Attention: Agency &
Trust (the address stated in this Section 2, or the principal corporate trust
office of any successor Fiscal Agent, the "Corporate Trust Office").
The State Treasury hereby appoints Dexia Banque Internationale a
Luxembourg, societe anonyme as Luxembourg listing and paying agent in respect of
the Notes upon the terms and subject to the conditions herein set forth. Dexia
Banque Internationale a Luxembourg, societe anonyme, as such Luxembourg listing
and paying agent hereunder, and any successor Luxembourg listing and paying
agent that shall be appointed by the State Treasury, and thereafter such
successor, is herein called the "Luxembourg Agent". The Luxembourg Agent shall
have the powers and authority granted to and conferred upon it hereby and such
further powers and authority to act on behalf of the State Treasury as the
parties agree in writing. The Luxembourg Agent at present has its principal
corporate trust office at 00 xxxxx x'Xxxx, X 0000 Xxxxxxxxxx, Xxxxxxxxxx (the
address stated in this Section 2, or the principal corporate trust office of any
successor Luxembourg Agent, the "Corporate Luxembourg Office").
In addition, the State Treasury hereby appoints the Fiscal Agent at
the Corporate Trust Office as Paying Agent for it for the payment of principal
and interest on the Notes pursuant to the terms thereof and the State Treasury
hereby appoints the Luxembourg Agent at the Corporate Luxembourg Office as
Paying Agent for it for the payment of principal and interest on the Notes in
Luxembourg. The State Treasury may at any time or from time to time appoint
additional Paying Agents for such payment and vary the terms of or terminate any
such appointment (all such Paying Agents appointed and acting as such at any
given time, including the Fiscal Agent at the Corporate Trust Office and the
Luxembourg Agent at the Corporate Luxembourg Office, being herein called,
collectively, "Paying Agents" and, individually, a "Paying Agent"); provided,
however, that as long as there shall be a Fiscal Agent hereunder, the Fiscal
Agent at the Corporate Trust Office shall remain a Paying Agent and provided
further, that, so long as the Notes are listed on the Luxembourg Stock Exchange
and the rules of the Luxembourg Stock Exchange so require, the State Treasury
will maintain a Paying Agent in Luxembourg. The State Treasury shall give to the
Fiscal Agent prompt notice in writing of the appointment of any additional
Paying Agent, of the terms of such appointment, of any variation of the terms of
or termination
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of the appointment of any Paying Agent and of the location of all Paying Agents
and any change in the location of any Paying Agent.
3. Execution; Authentication and Delivery; Dating. The Notes shall be
executed on behalf of the State Treasury by such official or officials of the
Ministry of Finance of Poland, whose signatures may be manual or facsimile, as
shall be properly authorized by the State Treasury. In the event that any of the
authorized signatories of the State Treasury who shall have signed or whose
facsimile signatures shall appear upon any of the Notes shall cease to be an
official before the Notes so signed shall actually have been authenticated and
delivered, such Notes nevertheless may be authenticated and delivered with the
same force and effect as though the person or persons who signed such Notes had
not ceased to be such official or officials of the State Treasury.
The Fiscal Agent is authorized, upon receipt of Notes duly executed on
behalf of the State Treasury for the purpose of the original issuance of Notes
and the written order of an Authorized Officer (defined herein), to authenticate
by its manual signature the Notes in an aggregate principal amount not in excess
of the aggregate principal amount specified herein and to deliver such Notes to
or upon the written order of Xx. Xxxxxxx Xxxxxxxxx, Undersecretary of State
in the Ministry of Finance (the "Authorized Officer") of the State Treasury,
registered in the names and in the denominations as requested by the
Underwriters named in the Underwriting Agreement dated as of July 20, 2009 (the
"Underwriters"). Thereafter, the Fiscal Agent is authorized to authenticate and
to deliver Notes in accordance with the provisions therein or hereinafter set
forth. The Notes shall be dated the date of their authentication by the Fiscal
Agent. The State Treasury may amend its Authorized Officer from time to time by
delivering a certificate of incumbency to the Fiscal Agent relating to such
Authorized Officer. In the event that Notes are issued in definitive form, the
certificates therefor representing individual securities, each with a
denomination of $1,000, the Fiscal Agent is hereby authorized (at the expense of
the State Treasury) to appoint authenticating agents to authenticate such Notes
in accordance with the terms hereof.
4. Payment. The State Treasury will pay to the Fiscal Agent the
amounts, at the times, and for the purposes, set forth herein and in the Notes.
The State Treasury hereby authorizes and directs the Fiscal Agent, from funds so
paid to it, to make payment through the Paying Agents of principal of and
interest on the Notes as set forth in the Notes. The principal of and interest
on the Notes shall be payable in such coin or currency of the United States as
at the time of payment is legal tender for the payment of public and private
debts. The Fiscal Agent shall arrange with all Paying Agents for the payment,
from funds furnished by the State Treasury to the Fiscal Agent, (i) of principal
of and interest on the Notes in the manner provided for in the Notes, and (ii)
of the agreed compensation of such Paying Agents for their services as such.
5. DTC Book Entry Provisions. Interests in a registered global Note (a
"Global Note") deposited with The Depository Trust Company ("DTC") or its
nominee will be transferable in accordance with the rules and procedures
established for that purpose by DTC. Members of, or participants in, DTC shall
have no rights hereunder with respect to any Global Note, and DTC or its nominee
may be treated by the State Treasury, any agent hereunder and any agent of the
State Treasury as the absolute owner of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
State Treasury, any agent hereunder or any agent of the State Treasury from
giving effect to any written certification, proxy or other authorization
furnished by DTC or impair, as between DTC and its participants, the operation
of customary practices governing the exercise of the rights of a Holder.
6. Redemption. The Notes are not redeemable at any time prior to
maturity.
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7. Limitation Period. The Notes will be subject to the limitation
periods with respect to claims for principal and interest as provided by Article
118 of the Polish Civil Code, dated April 23, 1964, as amended (the "Civil
Code"). The Civil Code provides a ten year limitation period on claims for
principal and a three year limitation period on claims for interest.
8. Duties, Responsibilities and Rights of the Fiscal Agent. The Fiscal
Agent accepts its obligations set forth herein and in the Notes, upon the terms
and conditions hereof, including the following, to all of which the State
Treasury agrees and to all of which the rights and obligations of the Holders of
the Notes are and shall be subject:
(a) The Fiscal Agent shall be entitled to compensation to be agreed upon
from time to time by the Fiscal Agent and the State Treasury in writing for all
services rendered by it hereunder, and the State Treasury agrees (i) to pay such
compensation and (ii) to reimburse the Fiscal Agent for its properly incurred
out-of-pocket expenses (including properly incurred counsel fees) incurred in
connection with the services rendered hereunder, promptly after receipt by the
State Treasury of a statement in the form customarily provided by the Fiscal
Agent, setting forth in reasonable detail the computation of the amounts of
compensation and expenses. The State Treasury also agrees to indemnify the
Fiscal Agent for, and to hold it harmless against, any loss, liability or
expense incurred without gross negligence, willful misconduct or bad faith on
the part of the Fiscal Agent, arising out of or in connection with its acting as
such Fiscal Agent hereunder, as well as the reasonable costs and expenses of
defending against any claim or liability in the premises. This indemnity shall
survive the termination or expiration of this Agreement. In no circumstances
shall the Fiscal Agent be liable to the State Treasury or to any other party to
this Agreement for losses which are not a reasonably foreseeable consequence of
an act or omission of the relevant Fiscal Agent or Paying Agent (for
illustrative purposes only, such losses may include loss of business, goodwill,
opportunity or profit).
(b) The Fiscal Agent shall maintain, as agent of the State Treasury,
at the Corporate Trust Office, a register in which, subject to such reasonable
regulations as the Fiscal Agent may prescribe, the State Treasury shall provide
for the registration of, and the registration of transfers of, and exchanges of,
the Notes (the "Note Register").
(c) In acting hereunder and in connection with the Notes, the Fiscal
Agent is acting solely as agent of the State Treasury and does not assume any
responsibility for the correctness of the recitals in this Agreement or in the
Notes (except for the correctness of the statement in its certificate of
authentication thereon) or any obligation or relationship of agency or trust for
or with any of the owners or Holders of the Notes, except that all funds held by
the Fiscal Agent for payment of principal of or interest on the Notes shall be
held in trust for the Holders of the Notes (money held by the Fiscal Agent need
not be segregated by it from its other funds; provided, however, that such
amounts remaining unclaimed at the end of two years shall (i) be identified in a
notice provided, upon request, by the Fiscal Agent to the State Treasury and
(ii) be repaid to the State Treasury upon the State Treasury's written request
at the end of two years after such principal shall have become due and payable
or after such interest shall have become due and payable, as the case may be
(whether at scheduled maturity of such Note or otherwise), and upon any such
repayment the aforesaid trust shall terminate with respect to such monies and
all liability of the Fiscal Agent or any Paying Agent with respect to such
monies shall thereupon cease.
(d) The State Treasury shall, not later than by 10:00 A.M., London
time, on the day prior to the date of an interest payment or the day prior to
the date of maturity of the Notes, transfer to an account specified by the
Fiscal Agent an amount, in immediately available funds, sufficient for the full
amount of the purpose of such payment in funds settled through such payment
system as the Fiscal Agent may designate. If such amount shall not have been
received by the Fiscal Agent, the Fiscal Agent shall
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give telephonic or telecopied notice of such fact to the State Treasury and the
Paying Agent. The State Treasury shall, on or prior to the business day
preceding the day on which such transfer is to be made, procure that the bank
making such transfer shall confirm the details of such transfer to the Fiscal
Agent. The Fiscal Agent shall not be bound (but shall be entitled) to make
payment if it has not received the full amount of any payment made in accordance
with Section 4 above.
(e) The Fiscal Agent and any Paying Agent may consult as to legal
matters with counsel satisfactory to it, and the opinion of such counsel shall
be full and complete authorization and protection in respect of any action taken
or thing suffered by it hereunder in good faith and in accordance with such
opinion of counsel.
(f) The Fiscal Agent and any Paying Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing suffered by it
in reliance without gross negligence, willful misconduct or bad faith upon any
Note, instruction, notice, direction, consent, certificate, affidavit,
statement, telex, cablegram, telecopy or other paper or document reasonably
believed by it to be genuine and to have been signed or sent by the proper
parties.
(g) The Fiscal Agent and any Paying Agent, and any of their respective
officers, directors and employees may become the owner or Holder of, or acquire
any interest in, any Notes, with the same rights that it or they would have if
the Fiscal Agent or such Paying Agent were not the Fiscal Agent or a Paying
Agent, and may engage or be interested in any financial or other transaction
with the State Treasury or any agency thereof, and may act on behalf of, or as
depositary, trustee or agent for, any Holders of the Notes or holders of other
obligations of the State Treasury, Poland or any agency thereof, or any
committee or body of any thereof, as freely as if the Fiscal Agent or such
Paying Agent were not the Fiscal Agent or a Paying Agent.
(h) Instructions, consistent herewith, concerning the operation of the
provisions of this Agreement and the duties to be carried out by the Fiscal
Agent hereunder may from time to time be issued by the State Treasury, and the
Fiscal Agent shall at all times comply with all such instructions as are for the
time being in force.
(i) The Fiscal Agent shall furnish to the State Treasury such
information by the Fiscal Agent as may be reasonably required by the State
Treasury. The State Treasury may, upon request and reasonable notice during the
normal business hours of the Fiscal Agent, inspect any Notes held by the Fiscal
Agent, the Note Register, and any other books and records maintained by the
Fiscal Agent hereunder.
(j) If the Fiscal Agent shall receive any notice or demand addressed
to the State Treasury by any Holder of a Note, the Fiscal Agent shall promptly
forward such notice or demand to the State Treasury.
(k) The Fiscal Agent shall not be under any liability for interest on
any monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Notes, unless otherwise agreed upon in writing between the
State Treasury and the Fiscal Agent.
(l) The Fiscal Agent agrees that the State Treasury shall, upon
delivery to the Fiscal Agent of any payment of principal, interest or other
payment under the Notes, be relieved, pro tanto, of its obligation to make such
payment to the Fiscal Agent which thereafter shall be responsible therefor;
provided, however, that this subsection relates only to the obligations of the
State Treasury in relation to the Fiscal Agent and shall not relieve the State
Treasury of any obligation to make such payment to the Holders of any Note.
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(m) At the expense of the State Treasury, the Fiscal Agent shall send
notices provided to it by the State Treasury to Holders of the Notes at the
times specified in writing by the State Treasury upon 15 days written notice to
the Fiscal Agent and, at the request of and for the period specified by the
State Treasury, the Fiscal Agent shall provide such notice to each subsequent
Holder of a Note at the time of registration of transfer of such Note.
(n) Any notice to a Holder of a Note required hereunder or under any
of the Notes to be given by the Fiscal Agent shall be sufficient if given in
writing by first class mail (air mail in the case of Holders whose addresses
appearing in the Note Register are in a country other than the United States of
America), postage prepaid, to such Holder at his last address appearing in the
Note Register; notwithstanding the foregoing, in the case of a Holder of a
Global Note notice by the Fiscal Agent shall be sufficient once made to DTC as
is customary in arrangements between the Fiscal Agent and DTC. Such notices
shall be given at the expense of the State Treasury.
(o) All Notes (i) surrendered to the Fiscal Agent for exchange or
transfer or (ii) paid by the Fiscal Agent, as the Paying Agent, shall be
cancelled and destroyed by the Fiscal Agent and a certificate of destruction
shall be forwarded by the Fiscal Agent to the State Treasury upon request.
(p) Whenever in the administration of this Agreement the Fiscal Agent
shall deem it necessary or desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Fiscal Agent
(unless other evidence be herein specifically prescribed) may, in the absence of
bad faith or gross negligence on its part, rely upon a certificate signed by any
authorized official of the State Treasury and delivered to the Fiscal Agent.
(q) The duties and obligations of the Fiscal Agent shall be determined
solely by the express provisions of this Agreement, and the Fiscal Agent shall
not be liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Fiscal Agent.
9. Resignation and Removal; Appointment of Successor. The State
Treasury agrees that there shall at all times be a Fiscal Agent hereunder which
shall be a bank or trust company, organized or licensed and doing business under
the laws of the United States or the State of New York, is in good standing and
has an established place of business in London, United Kingdom, and is
authorized under such laws to act as Fiscal Agent hereunder and, so long as the
Notes are listed on the Luxembourg Stock Exchange and the rules of the
Luxembourg Stock Exchange so require, the State Treasury will maintain a Paying
Agent in Luxembourg until the earlier of (i) the first date on which all the
Notes are no longer outstanding and (ii) two years after the principal of all
the Notes shall have become due and payable and monies for the payment in full
of such principal of, and all accrued interest on, the Notes shall have been
made available at the Corporate Trust Office of the Fiscal Agent.
The Fiscal Agent may resign at any time by giving written notice to
the State Treasury of its resignation, specifying the date on which its
resignation shall become effective (which shall not be less than 60 days after
the date on which notice is given, unless the State Treasury shall agree to a
shorter period); and the State Treasury may remove the Fiscal Agent at any time
by giving notice to the Fiscal Agent specifying the date on which such removal
shall become effective, but in each case only in accordance with the following
provisions:
(a) any resignation or removal of the Fiscal Agent shall be effective
only upon appointment by the State Treasury of a qualified successor Paying
Agent and the latter's acceptance thereof;
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(b) if the Fiscal Agent shall resign, be removed or become incapable
of acting as Paying Agent for any cause, the State Treasury shall promptly
appoint a successor Paying Agent;
(c) any successor Paying Agent appointed by the State Treasury shall
be a bank or trust company legally qualified to act as such successor and having
an established place of business in the Borough of Manhattan, The City and State
of New York;
(d) every successor Paying Agent appointed hereunder shall execute and
deliver to the State Treasury and to the retiring Paying Agent an instrument
accepting such appointment, which shall set forth its agreement to be bound by
the terms hereof, and thereupon the resignation or removal of the retiring
Paying Agent shall become effective and the successor, without further act or
deed, shall become vested with all the rights, powers, trusts and duties of the
retiring Paying Agent. Such retiring Paying Agent shall, at the direction of the
State Treasury and upon payment of its compensation and expenses then unpaid,
promptly deliver to its successor all sums held hereunder together with all
records, unissued Note certificates and other documents necessary or appropriate
in connection with the performance of the duties of the successor Paying Agent
hereunder; and
(e) the State Treasury shall give, or cause to be given, notice of
each resignation and each removal of the Paying Agent and each appointment of a
successor Paying Agent by mailing written notice of such event to the Holders of
the Notes as their names and addresses appear in the Note Register.
In the event that a successor Paying Agent is not appointed within 60
days after notice of resignation or removal (as provided in this Section 9), the
Fiscal Agent may, on behalf of the State Treasury and subject to its approval,
appoint a successor Paying Agent, which Paying Agent will be a bank or trust
company legally qualified to act as such successor and having an established
place of business in the Borough of Manhattan, The City and State of New York.
10. Merger, Consolidation and Sale of Fiscal Agent. In the event of
any merger, consolidation or conversion of the Fiscal Agent into another
corporation or the sale of all or substantially all the Fiscal Agent's corporate
trust business, the corporation resulting from such merger, consolidation or
conversion, or the transferee in the case of any such sale, shall be the Fiscal
Agent hereunder without further act or deed; provided, however, that such
corporation shall be otherwise qualified and eligible hereunder.
11. Stamp Duties. The State Treasury will pay all stamp or other
similar duties, if any, imposed by Poland, the United States of America, the
State of New York or any political subdivision of Poland or the State of New
York, to which this Agreement (or the execution and delivery hereof) or the
original issuance of the Notes shall be or become subject.
12. Submission to Jurisdiction; Waiver of Immunity. The State Treasury
irrevocably submits to the jurisdiction of any court of the State of New York or
any United States Federal court sitting, in each case, in the Borough of
Manhattan, the City of New York, New York, United States, and to the
jurisdiction of any Polish court with respect to any suit, action or proceeding,
and waives any immunity from the jurisdiction of such courts over any suit,
action or proceeding (other than a pre-judgment attachment, immunity from which
is expressly not waived), that may be brought in connection with the Notes or
this Agreement. The State Treasury irrevocably waives, in relation to any such
suit, action or proceeding in any such court, to the fullest extent permitted by
law, any immunity and any objection to any such suit, action, or proceeding on
the grounds of venue or on the ground that any such suit, action or proceeding
has been brought in an inconvenient forum. Such waiver of immunity constitutes
only a limited and specific waiver for the purposes of the Notes and this
Agreement and under
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no circumstances shall it be interpreted as a general waiver by the State
Treasury or a waiver with respect to proceedings unrelated to the Notes or this
Agreement.
Poland reserves the right to plead sovereign immunity under the U.S.
Foreign Sovereign Immunities Act of 1976 with respect to actions brought against
it under U.S. federal or state securities law. Poland does not waive any
immunity in respect of present or future "premises of the mission" as such term
is defined in the Vienna Convention on Diplomatic Relations signed in 1961, or
"consular premises" as such term is defined in the Vienna Convention on Consular
Relations signed in 1963 or military property or military assets of Poland
related thereto. Each of the State Treasury and Poland agrees that final
judgment in any such suit, action or proceeding brought in such court shall be
conclusive and binding upon such party and may be enforced in any court to the
jurisdiction of which such party is subject by a suit upon such judgment;
provided that service of process is effected upon such party in the manner
provided by this Agreement.
Nothing contained in this Agreement shall be deemed to limit the right
of the registered Holders of the Notes to bring proceedings in any other court
of competent jurisdiction; nor will the bringing of proceedings in one or more
jurisdiction preclude the bringing of proceedings in any other jurisdiction,
whether concurrently or not.
13. Agent for Service of Process. The State Treasury agrees that so
long as any of the Notes remain outstanding or this Agreement shall be in effect
it shall maintain a duly appointed agent for the service of writs, process,
summons and other legal process in the Borough of Manhattan, The City of New
York for the purposes of any legal action arising out of or based on the Notes
or this Agreement. The State Treasury hereby appoints the Consul General of the
Republic of Poland, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, as its authorized
agent for service of process (the "Authorized Agent") and represents and
warrants that such person has agreed to act as the State Treasury's Authorized
Agent. The State Treasury agrees that such appointment shall be irrevocable
until the irrevocable appointment by the State Treasury of a successor in The
City of New York as its authorized agent for such purpose and the acceptance of
such appointment by such successor. The State Treasury further agrees to take
any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force
and effect as aforesaid. If such person shall cease to act as the Authorized
Agent, the State Treasury shall appoint without delay another such agent and
provide prompt written notice to the Fiscal Agent of such appointment, of the
location of such successor Authorized Agent and of any change in the location of
any Authorized Agent; and the Fiscal Agent shall keep such notices on file and
available for inspection by any Holder of a Note at the Corporate Trust Office.
With respect to any such action in any court of the State of New York or any
United States Federal court, in each case, in the Borough of Manhattan, The City
of New York, service of process upon such person, as the Authorized Agent of the
State Treasury for service of process, and written notice of such service to the
State Treasury shall be deemed, in every respect, effective service of process
upon the State Treasury.
14. Language. This Agreement may be executed in the Polish and English
languages and each of these texts is authentic. To the extent that there is any
discrepancy between the Polish and English texts, the English version shall
prevail.
15. Meetings. The Fiscal Agent may call a meeting of the Holders of
the Notes at any time regarding this Agreement or the Notes. The Fiscal Agent
will call a meeting of the Holders of the Notes if the State Treasury or the
Holders of at least 10% of the aggregate principal amount of the outstanding
Notes deliver a written request to the Fiscal Agent setting forth the action
they propose be taken. The Fiscal Agent will determine the time and place of the
meeting and notify the Holders of the time, place and purpose of the meeting not
less than 30 and not more than 60 days before the meeting. Only the Holders of
the Notes and their proxies are entitled to vote at a meeting of the Holders of
the
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Notes. One or more Holders or proxies representing at least a majority of
the aggregate principal amount of the outstanding Notes will constitute a
quorum. However, if a meeting is adjourned for a lack of a quorum, then one or
more Holders or proxies representing at least 25% of the aggregate principal
amount of the outstanding Notes will constitute a quorum when the meeting is
reconvened. For purposes of a meeting of the Holders that proposes to discuss a
Reserved Matter (as defined in the Section 16(ii) below), Holders or proxies
representing at least 75% of the aggregate principal amount of the outstanding
Notes will constitute a quorum.
The Fiscal Agent shall follow the provisions for the meetings of the
Holders of the Notes as are set forth in Exhibit B hereto, which is hereby
incorporated by reference herein. The Fiscal Agent may make such other
reasonable and customary regulations as it shall deem advisable for any meeting
of Holders of Notes with respect to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate.
16. Voting; Amendments. (i) The State Treasury and the Fiscal Agent
may generally modify, amend or supplement or take actions with respect to this
Agreement or the terms of the Notes (a) with the affirmative vote of the Holders
of at least 66 2/3% of the aggregate principal amount of the outstanding Notes
that are represented at a meeting of Holders for which there is a quorum or (b)
with the written consent of the Holders of at least 66 2/3% of the aggregate
principal amount of the outstanding Notes.
(ii) Holders of at least 75% of the aggregate principal amount of the
outstanding Notes, voting at a meeting or by written consent, must consent to
any amendment, modification, change or waiver that would:
(a) change the due date for the payment of the principal of, or any
installment or interest on, the Notes;
(b) reduce the principal amount of the Notes;
(c) reduce the portion of the principal amount that is payable in the
event of an acceleration of the maturity of the Notes;
(d) reduce the interest rate on any Note or any premium payable upon
redemption of the Notes;
(e) modify any provision of the terms and conditions of the Notes in
connection with any exchange or substitution of the Notes or the conversion of
the Notes into, any other obligation or securities of the State Treasury or any
other person, which would result in the terms and conditions of the Securities
as so modified being less favorable to the Holders of the Notes which are the
subject of the terms and conditions as so modified than:
(i) the provision of the other obligations or securities of the
State Treasury or any other person resulting from the
relevant exchange or substitution; or
(ii) if more than one series of other obligations or securities
results from the relevant exchange or substitution or
conversion, the provisions of the resulting series having
the largest aggregate principal amount;
(f) change the currency in which any amount in respect of the Notes is
payable;
9
(g) shorten the period during which the State Treasury is not
permitted to redeem the Notes or permit the State Treasury to redeem the Notes
if, prior to such action, the State Treasury is not permitted to do so;
(h) change the definition of "outstanding" with respect to the Notes;
(i) change the governing law provision of the Notes;
(j) change the courts to the jurisdiction of which the State Treasury
has submitted, the State Treasury's obligation under this Agreement or the terms
and conditions of the Notes to appoint and maintain an agent for the service of
process, or the State Treasury's waiver of immunity with respect to any suit,
action or proceeding that may be brought in connection with the Notes or this
Agreement;
(k) reduce the proportion of the principal amount of the Notes that is
required for quorum, any request, demand, authorization, direction, notice,
consent, waiver or other action or that is required to modify, amend or
supplement this Agreement or the terms and conditions of the Notes; or
(l) change the obligation of the State Treasury to pay additional
amounts on the Notes.
Each of the actions set forth in clauses (a) through (l) of the
preceding sentence is referred to as a "Reserved Matter". A change to a Reserved
Matter can be made without the consent of all Holders of the outstanding Notes,
as long as the Holders of at least 75% of the aggregate principal amount of the
outstanding Notes agree to the change.
Any modification, amendment or supplement made in accordance with the
terms of this Agreement or the Notes will be binding on all Holders of the
Notes.
(iii) The State Treasury and the Fiscal Agent may, without the consent
of any Holder of the Notes, modify, amend or supplement this Agreement or the
Notes for the purpose of:
(a) adding to the covenants of the State Treasury;
(b) surrendering any right or power conferred upon the State Treasury;
(c) securing the Notes;
(d) curing any ambiguity, or curing, correcting or supplementing any
defective provision contained in this Agreement or in the Notes; or
(e) amending this Agreement or the Notes in any manner that the State
Treasury and the Fiscal Agent may determine and that does not adversely affect
the interest of any Holder of the Notes in any material respect in the sole
opinion of the State Treasury.
It shall not be necessary for the vote or consent of the Holders of
the Notes to approve the particular form of the proposed modification,
amendment, request, demand, authorization, direction, notice, consent, waiver or
other action, but it shall be sufficient if such vote or consent shall approve
the substance thereof.
17. "Outstanding" Defined; When Notes Are Disregarded. For purposes of
the provisions of this Agreement and the Notes, any Note authenticated and
delivered pursuant to this Agreement shall, as of any date of determination, be
deemed to be "outstanding", except
10
(i) Notes theretofore cancelled by the Fiscal Agent or delivered to
the Fiscal Agent for cancellation or held by the Fiscal Agent for reissuance but
not reissued by the Fiscal Agent;
(ii) Notes which have been called for redemption in accordance with
their terms or which have become due and payable at maturity or otherwise and
with respect to which monies sufficient to pay the principal thereof (and
premium, if any) and any interest thereon shall have been made available to the
Fiscal Agent; or
(iii) Notes in lieu of or substitution for which other Notes shall
have been authenticated and delivered pursuant to this Agreement;
provided, however, that in determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned or controlled, directly or indirectly, by The State
Treasury shall be disregarded and deemed not to be outstanding, except that, for
the purpose of determining whether the Fiscal Agent shall be protected in
relying on any such direction, waiver or consent, only Notes which the Fiscal
Agent knows are so owned shall be so disregarded. Subject to the foregoing, only
Notes outstanding at the time shall be considered in any such determination.
18. Governing Law. This Agreement and the Notes will be governed by
and interpreted in accordance with the laws of the State of New York without
regard to any conflicts of laws principles thereof that would require the
application of the laws of a jurisdiction other than the State of New York,
except that all matters governing the authorization and execution of the Notes
by the State Treasury will be governed by the laws of Poland.
19. Judgment Currency. The State Treasury agrees that if a judgment or
order given or made by any court for the payment of any amount in respect of any
Note is expressed in a currency (the "judgment currency") other than the U.S.
dollar (the "denomination currency"), the State Treasury will pay any deficiency
arising or resulting from any variation in rates of exchange between the date as
of which the amount in the denomination currency is nationally converted into
the amount in the judgment currency for the purposes of such judgment or order
and the date of actual payment thereof. This obligation will constitute a
separate and independent obligation from the other obligations under the Notes,
will give rise to a separate and independent cause of action, will apply
irrespective of any waiver or extension granted from time to time and will
continue in full force and effect notwithstanding any judgment or order for a
liquidated sum or sums in respect of amounts due in respect of the relevant Note
or under any such judgment or order for a liquidated sum or sums in respect of
amounts due in respect of the relevant Note or under any such judgment or order.
20. Notices. Any notices pursuant to, or communications with respect
to, this Agreement or the Notes shall be sufficient if given in writing (by
registered air mail, postage prepaid, return receipt requested) or by telegram,
telex or facsimile transmission (in each case confirmed in writing, by
registered air mail, postage prepaid, return receipt requested, provided,
however, that the failure to give such confirmation shall not affect the
effectiveness of such notice). Notices shall be addressed, in the case of the
State Treasury, to it at Ministry of Finance, xx. Xxxxxxxxxxxxx 00, 00-000
Xxxxxx, Xxxxxx (facsimile: x00 00 000 00 00); Attention: Director of Public Debt
Department, Ministry of Finance, and in the case of the Fiscal Agent, to it at
Citibank N.A., London, Citigroup Centre, Canada Square, London E14 5LB, UK
(facsimile: x00 0000 000 0000/5877), Attention: Agency & Trust; or to each such
person at such other address as shall be specified from time to time in writing
by the person in question to the other party hereto.
11
21. Survival. The Fiscal Agent's rights to compensation, reimbursement
and indemnification shall survive the termination of this Agreement and any
other agreement affecting the right or duties of the Fiscal Agent or the
resignation or removal of the Fiscal Agent.
22. Entire Agreement. This Agreement represents the entire agreement
of the parties with regard to the subject matter hereof and supersedes any prior
or contemporaneous agreement, oral or written, between the parties hereto with
respect to the subject matter hereof.
23. Counterparts. This Agreement may be executed in separate
counterparts, and by each party separately on a separate counterpart, each such
counterpart, when so executed and delivered, to be an original. Such counterpart
shall together constitute but one and the same instrument.
24. Tax Disclosure. Notwithstanding anything herein to the contrary,
each party hereto and the Holders of the Notes (and each employee,
representative or other agent of such party or such Holder) may disclose to any
and all persons, without limitation of any kind, the U.S. tax treatment and U.S.
tax structure of any transaction contemplated herein and all materials of any
kind (including opinions or other tax analyses) that are provided to the Holders
relating to such U.S. tax treatment and U.S. tax structure, other than any
information for which nondisclosure is reasonably necessary in order to comply
with applicable securities laws.
[Remainder of Page Intentionally Left Blank]
12
IN WITNESS WHEREOF, the parties hereto have executed this Fiscal
Agency Agreement as of the date first above written.
THE STATE TREASURY OF THE REPUBLIC
OF POLAND, represented by the
Minister of Finance
By: /s/Xxxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Undersecretary of State in
the Ministry of Finance
CITIBANK N.A., LONDON
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
DEXIA BANQUE INTERNATIONALE A
LUXEMBOURG, SOCIETE ANONYME
By: /s/ Xxxxxx Schammo
-------------------------------
Name: Xxxxxx Schammo
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
00
EXHIBIT A
[FORM OF GLOBAL NOTE]
THE STATE TREASURY OF THE REPUBLIC OF POLAND
REPRESENTED BY THE MINISTER OF FINANCE
6.375% NOTES DUE 2019
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE STATE
TREASURY OF THE REPUBLIC OF POLAND OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PAYABLE AS TO PRINCIPAL AND INTEREST IN LAWFUL MONEY OF
THE UNITED STATES OF AMERICA
FULLY REGISTERED NOTES
CUSIP 731011 AR3
ISIN No. US731011AR30
COMMON CODE No. 043968319
REGISTERED OWNER: CEDE & CO.
PRINCIPAL SUM: FIVE HUNDRED MILLION (5,000,000,000) U.S. DOLLARS
THE STATE TREASURY OF THE REPUBLIC OF POLAND, represented by the
Minister of Finance (the "State Treasury"), for value received, hereby promises
to pay to the registered owner specified above or registered assigns, on July
15, 2019, upon presentation and surrender of this Global Note, the principal sum
specified above in such lawful money of the United States of America at the
office of Citibank N.A., London (the "Fiscal Agent"), and to pay interest
thereon in like money in the manner provided in the terms endorsed on the
reverse hereof from January 15 and July 15, as the case may be, next preceding
the date of the Global Note to which interest has been paid, unless no interest
has been paid on the Notes, in which case from July 15, 2009 such interest to be
payable semi-annually at the rate of 6.375% per annum on January 15 and July 15
of each year (each an "Interest Payment date") until the principal of this
Global Note shall have been paid, the first of such payments of interest to
become due and payable on January 15, 2010. Interest on the Notes shall be
computed on the basis of a 360-day year of twelve 30-day months. Notwithstanding
anything to the contrary provided herein, any payment of principal or interest
falling due on a day which is not a business day for the Fiscal Agent acting
under the Fiscal Agency Agreement described in the terms endorsed on the reverse
hereof will be payable on the next succeeding business day and no interest shall
accrue for the intervening period. The interest so payable on any such Interest
Payment Date will be paid to the person in whose name this Global Note is
A-1
registered at the close of business on January 1 and July 1 (whether or not such
day is a business day) next preceding such Interest Payment Date, respectively
(each a "Record Date").
This Global Note is a general and unsecured obligation of the Republic
of Poland ("Poland"). This Global Note ranks and will rank pari passu among all
Notes or Global Notes and at least pari passu in right of payment with all other
present and future unsecured obligations of Poland, except for such obligations
as may be preferred by mandatory provisions of applicable law.
This Global Note is subject to the terms endorsed on the reverse
hereof and shall not be valid or enforceable for any purpose unless
authenticated by the manual signature of the Fiscal Agent. This Global Note
shall be dated the date of its authentication by the Fiscal Agent.
IN WITNESS WHEREOF, the State Treasury has caused this Global Note to
be duly executed.
THE STATE TREASURY OF THE REPUBLIC
OF POLAND, represented by the
Minister of Finance
By:
--------------------------------
Name:
Title:
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[FORM OF FISCAL AGENT'S CERTIFICATE OF AUTHENTICATION]
This is a permanent global note evidencing one of the Notes referred
to in the aforementioned Fiscal Agency Agreement.
Dated: July 27, 2009 CITIBANK N.A., LONDON,
as Fiscal Agent
By:
--------------------------------
Authorized Signatory
without warranty, recourse or
liability
A-3
[FORM OF REVERSE OF GLOBAL NOTE]
1. This Global Note is a permanent global security evidencing one of a
duly authorized issue of 6.375% Notes due 2019 of the State Treasury (each a
"Note", and collectively and including this Global Note, the "Notes"), limited
in aggregate principal amount to $3,500,000,000 (including $2,000,000,000
aggregate principal amount of Notes originally issued under the fiscal agency
agreement dated July 15, 2009 and issued under the amended and restated fiscal
agency agreement dated July 27, 2009 (as the same may be amended, supplemented
or otherwise modified from time to time, the "Fiscal Agency Agreement") between
the State Treasury, Citibank N.A., London, as Fiscal Agent, and Dexia Banque
Internationale a Luxembourg, societe anonyme, as Listing and Paying Agent (the
"Luxembourg Agent"), to which Fiscal Agency Agreement reference is hereby made
for a statement of the respective rights, duties, limitations of rights,
obligations and immunities thereunder of the State Treasury, Poland, the Fiscal
Agent and the Holders of the Notes. Copies of the Fiscal Agency Agreement are on
file and available for inspection upon request and during the business hours of
the Fiscal Agent at the corporate trust office of the Fiscal Agent in London,
England. The Notes of this issue are issuable as fully registered Notes without
coupons in denominations of $1,000 in lawful money of the United States of
America.
Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Fiscal Agency Agreement.
2. All payments made in respect of a Note, including payments of
principal and interest, to a Holder of a Note that is not a resident of Poland,
will be made by the State Treasury without withholding or deducting for or on
account of any present or future taxes, duties, levies or other governmental
charges of whatever nature imposed or levied by Poland or any political
subdivision or taxing authority within Poland. In the event the State Treasury
is required by law to deduct or withhold any such taxes from payments to the
Holders of the Notes, the State Treasury will pay such additional amounts as may
be necessary so that the net amount received (including any deduction or
withholding with respect to additional amounts) is equal to the amount provided
for in the Note to be paid in the absence of such deduction or withholding.
Additional amounts will not be paid, however, if the tax is:
(a) a tax that would not have been imposed but for such person's
present or former connection (or a connection of such
person's fiduciary, settlor, beneficiary, member,
shareholder or other related party) with Poland, including
such person (or such person's fiduciary, settlor,
beneficiary, member, shareholder or other related party)
being or having been a citizen or resident of Poland or
being or having been engaged in a trade or business or
present in Poland or having, or having had, a permanent
establishment in Poland;
(b) imposed because a Note in definitive form is presented for
payment more than 30 days after the date on which the
payment became due and payable;
(c) an estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental
charge;
(d) a tax, assessment or other governmental charge which is
payable other than by withholding;
(e) a tax that would not have been imposed but for the failure
to comply with certification, information or other reporting
requirements concerning the Holder's nationality, residence
or identity (or the nationality, residence or identity of
the beneficial owner of the Note), if such person's
compliance is required by laws of
X-0
Xxxxxx or of any political subdivision or taxing authority of
Poland to avoid or reduce such tax;
(f) required to be withheld by any paying agent from a payment on
the Note to the extent that such payment can be made without
withholding by another paying agent;
(g) a tax, assessment or other governmental charge which is
required to be withheld or deducted where such withholding
or deduction is imposed on a payment to an individual and is
required to be made pursuant to any European Union Directive
on the taxation of savings income implementing the
conclusions of the ECOFIN Council meeting of June 3, 2003,
or any law implementing or complying with, or introduced in
order to conform to, such directive; or
(h) imposed as a result of any combination of the items listed
above.
Furthermore, no additional amounts will be paid in respect to any Note
to a Holder who is a fiduciary or partnership or other than the sole beneficial
owner of such payment to the extent that the settlors with respect to such
fiduciary, partner or beneficial owner, as the case may be, would not have been
entitled to payment of such additional amounts if they held the Note themselves.
In the event that such deduction or withholding is required, the State
Treasury will make such deduction or withholding and remit the full amount
deducted or withheld to the relevant authority in accordance with applicable
law. The State Treasury will furnish, upon request, within a reasonable period
of time after the payment of any taxes due pursuant to applicable law, certified
copies of tax receipts evidencing such payment by the State Treasury.
Any reference herein to principal or interest on the Notes includes
any additional amounts which may be payable on those Notes.
3. So long as any of the Notes remain outstanding, Poland will not
create or permit (to the extent Poland has the power to refuse such permission)
the creation of any Security Interest on any of its present or future assets or
revenues, or any part thereof, to secure any Public External Indebtedness of
Poland, unless Poland shall procure that all amounts payable under the Notes are
secured equally and ratably.
Notwithstanding the above, Poland may create or permit the creation of
(a) any Security Interest which secures Poland's $934.67 million Collateralized
Par Bonds due 2024 and $891.07 million Collateralized RSTA Bonds due 2024 each
issued (in part) on October 27, 1994 and which is either existing on the date
hereof in relation to, or contemplated by the terms of, such bonds; or (b) any
Security Interest upon property to secure Public External Indebtedness incurred
for the purpose of financing the acquisition of such property (or property which
forms part of a class of assets of a similar nature where the Security Interest
is by reference to the constituents of such class from time to time); or (c) any
Security Interest existing on property at the time of its acquisition; or (d)
any Security Interest arising by operation of law which has not been foreclosed
or otherwise enforced against the assets to which it applies; or (e) any
Security Interest securing or providing for the payment of Public External
Indebtedness incurred in connection with any Project Financing provided that
such Security Interest applies to only (i) properties which are the subject of
such Project Financing or (ii) revenues or claims which arise from the
operation, failure to meet specifications, exploitation, sale or loss of, or
failure to complete, or damage to, such properties; or (f) the renewal or
extension of any Security Interest described in subparagraphs (a) to (e) above,
provided that the principal amount of the Public External Indebtedness secured
thereby is not increased.
A-5
For purposes of the foregoing the following terms have the following
meanings:
"Person" means any individual, company, corporation, firm,
partnership, joint venture, association, unincorporated organization, trust or
any other jurisdiction or entity, including without limitation, a state or an
agency of a state or other entity, whether or not having separate legal
personality.
"Project Financing" means any arrangements for the provision of funds
which are to be used solely to finance a project for the acquisition,
construction, development or exploitation of any property pursuant to which the
persons providing such funds agree that the principal source of repayment of
such funds will be the project and the revenues (including insurance proceeds)
generated by such project.
"Public External Indebtedness" means any obligations for borrowed
money (a) evidenced by bonds, notes or other securities which are or may be
quoted, listed or ordinarily purchased and sold on any stock exchange, automated
trading system or over-the-counter or other securities market and (b)
denominated or payable, or at the option of the holder thereof payable, in a
currency other than the lawful currency of Poland.
"Security Interest" means any mortgage, charge, pledge, lien, security
interest or other encumbrance securing any obligation of Poland or any other
type of preferential arrangement having similar effect over any assets or
revenues of Poland.
4. In case one or more of the following events ("Events of Default")
shall have occurred and be continuing:
(a) the State Treasury fails to pay the principal of or any interest
on any of the Notes when due and such failure continues for a period of 30 days
of the date due for payment thereof; or
(b) the State Treasury fails duly to perform or observe any of its
other material obligations under or in respect of this Global Note which failure
continues unremedied for 45 days after written notice thereof has been delivered
by the registered Holder to the State Treasury at the specified office of the
Fiscal Agent.
Fiscal Agent shall, upon receipt of written requests to the State
Treasury at the specified office of the Fiscal Agent from the registered Holders
of not less than 25% in aggregate outstanding principal amount of the Notes,
declare the Notes due and payable, in each case at their principal amount
together with accrued interest without further formality.
Upon such declaration by the Fiscal Agent, the Fiscal Agent shall give
notice thereof in the manner provided in the Fiscal Agency Agreement to the
State Treasury and to the registered Holders of this Global Note in accordance
with such Agreement. After any such declaration by the Fiscal Agent, if all
amounts then due with respect to the Notes are paid (other than amounts due
solely because of such declaration) and all other defaults with respect to the
Notes are cured, such declaration may be annulled and rescinded by the
registered Holders of not less than 50% in aggregate outstanding principal
amount of the Notes (the "Required Percentage") by a written notice thereof to
the State Treasury at the specified office of the Fiscal Agent or by the passing
of a resolution by the registered Holders of not less than the Required
Percentage.
5. The Fiscal Agent may call a meeting of the Holders of the Notes at
any time regarding the Fiscal Agency Agreement or the Notes. In addition, the
Fiscal Agent will call a meeting of the Holders of the Notes if the State
Treasury or the Holders of at least 10% of the aggregate principal
A-6
amount of the outstanding Notes deliver a written request to the Fiscal Agent
setting forth the action they propose be taken. The Fiscal Agent will determine
the time and place of the meeting and notify the Holders of the time, place and
purpose of the meeting not less than 30 and not more than 60 days before the
meeting. Only the Holders of the Notes and their proxies are entitled to vote at
a meeting of the Holders of the Notes. One or more Holders or proxies
representing at least a majority of the aggregate principal amount of the
outstanding Notes will normally constitute a quorum. However, if a meeting is
adjourned for a lack of a quorum, then one or more Holders or proxies
representing at least 25% of the aggregate principal amount of the outstanding
Notes will constitute a quorum when the meeting is reconvened. For purposes of a
meeting of the Holders that proposes to discuss a Reserved Matter (as defined in
paragraph 6 below), Holders or proxies representing at least 75% of the
aggregate principal amount of the outstanding Notes will constitute a quorum.
6. The State Treasury and the Fiscal Agent may generally modify, amend
or supplement or take actions with respect to the Fiscal Agency Agreement or the
terms of the Notes (a) with the affirmative vote of the Holders of at least 66
2/3% of the aggregate principal amount of the outstanding Notes that are
represented at a meeting of Holders for which there is a quorum or (b) with the
written consent of the Holders of at least 66 2/3% of the aggregate principal
amount of the outstanding Notes.
However, the Holders of at least 75% of the aggregate principal amount
of the outstanding Notes, voting at a meeting or by written consent, must
consent to any amendment, modification, change or waiver that would:
(a) change the due date for the payment of the principal of, or any
installment or interest on, the Notes;
(b) reduce the principal amount of the Notes;
(c) reduce the portion of the principal amount that is payable in the
event of an acceleration of the maturity of the Notes;
(d) reduce the interest rate on any Note or any premium payable upon
redemption of the Notes;
(e) modify any provision of the terms and conditions of the Notes in
connection with any exchange or substitution of the Notes or the conversion of
the Notes into, any other obligation or securities of the State Treasury or any
other person, which would result in the terms and conditions of the Securities
as so modified being less favorable to the Holders of the Notes which are the
subject of the terms and conditions as so modified than:
(i) the provision of the other obligations or securities of the
State Treasury or any other person resulting from the relevant
exchange or substitution; or
(ii) if more than one series of other obligations or securities
results from the relevant exchange or substitution or
conversion, the provisions of the resulting series having the
largest aggregate principal amount;
(f) change the currency in which any amount in respect of the Notes is
payable;
(g) shorten the period during which the State Treasury is not
permitted to redeem the Notes or permit the State Treasury to redeem the Notes
if, prior to such action, the State Treasury is not permitted to do so;
A-7
(h) change the definition of "outstanding" with respect to the Notes;
(i) change the governing law provision of the Notes;
(j) change the courts to the jurisdiction of which the State Treasury
has submitted, the State Treasury's obligation under this Fiscal Agency
Agreement or the terms and conditions of the Notes to appoint and maintain an
agent for the service of process or the State Treasury's waiver of immunity with
respect to any suit, action or proceeding in connection with the Notes or this
Agreement;
(k) reduce the proportion of the principal amount of the Notes that is
required for any request, demand, authorization, direction, notice, consent,
waiver or other action or that is required to modify, amend or supplement the
Fiscal Agency Agreement or the terms and conditions of the Notes; or
(l) change the obligation of the State Treasury to pay additional
amounts on the Notes.
Each of the actions set forth in clauses (a) through (l) is referred
to as a "Reserved Matter". A change to a Reserved Matter can be made without the
consent of all Holders of the outstanding Notes, as long as the Holders of at
least 75% of the aggregate principal amount of the outstanding Notes agree to
the change.
Any modification, amendment or supplement made in accordance with the
terms of the Notes will be binding on all Holders of the Notes.
The State Treasury and the Fiscal Agent may, without the consent of
any Holder of the Notes, modify, amend or supplement the Fiscal Agency Agreement
or the Notes for the purpose of:
(a) adding to the covenants of the State Treasury;
(b) surrendering any right or power conferred upon the State Treasury;
(c) securing the Notes;
(d) curing any ambiguity, or curing, correcting or supplementing any
defective provision contained in the Fiscal Agency Agreement or in the Notes; or
(e) amending the Agency Agreement or the Notes in any manner that the
State Treasury and the Fiscal Agent may determine and that does not adversely
affect the interest of any Holder of the Notes in any material respect in the
sole opinion of the State Treasury.
7. As more fully set forth in the Fiscal Agency Agreement, the State
Treasury hereby irrevocably waives, to the fullest extent permitted by law, any
immunity from jurisdiction to which it might otherwise be entitled in any suit,
action or proceeding (other than a pre-judgment attachment, immunity from which
is expressly not waived) that may be brought in connection with the Notes or the
Fiscal Agency Agreement in any court of the State of New York or any United
States Federal court sitting, in each case, in the Borough of Manhattan, the
City of New York, New York, United States, or any competent court in Poland. As
more fully set forth in the Fiscal Agency Agreement, the State Treasury has
appointed the Consul General of the Republic of Poland, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, as its authorized agent upon whom process may be served in any
action arising out of or based on the Notes which may be instituted by the
registered Holder of any Notes in any court of the State of New York or any
United States Federal court sitting, in each case, in the Borough of Manhattan,
the City
X-0
xx Xxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx. Such appointment shall be irrevocable
until all amounts in respect of the principal and interest, due or to become due
on or in respect of all the Notes issued under the Fiscal Agency Agreement have
been paid by the State Treasury to the Fiscal Agent or unless and until a
successor shall have been appointed as the State Treasury's authorized agent and
such successor shall have accepted such appointment. The State Treasury agrees
that it will at all times maintain an authorized agent to receive such service,
as provided above.
Because Poland has not waived its sovereign immunity in connection
with any action arising out of or based on United States federal or state
securities laws, it will not be possible to obtain a United States judgment
against Poland based on such laws unless a court were to determine that Poland
is not entitled under the Foreign Sovereign Immunities Act of 1976 (the "Act")
to sovereign immunity with respect to such actions.
Poland reserves the right to plead sovereign immunity under the U.S.
Foreign Sovereign Immunities Act of 1976 with respect to actions brought against
it under U.S. federal or state securities law. Poland does not waive any
immunity in respect of present or future "premises of the mission" as such term
is defined in the Vienna Convention on Diplomatic Relations signed in 1961, or
"consular premises" as such term is defined in the Vienna Convention on Consular
Relations signed in 1963 or military property or military assets of Poland
related thereto. The State Treasury agrees that final judgment in any such suit,
action or proceeding brought in such court shall be conclusive and binding upon
such party and may be enforced in any court to the jurisdiction of which such
party is subject by a suit upon such judgment; provided that service of process
is effected upon such party in the manner provided by the Fiscal Agency
Agreement.
Nothing contained in this Note shall be deemed to limit the right of
the registered Holders to bring proceedings in any other court of competent
jurisdiction; nor will the bringing of proceedings in one or more jurisdictions
preclude the bringing of proceedings in any other jurisdiction, whether
concurrently or not.
The waiver in the preceding paragraphs is intended to be effective
upon execution of this Global Note without further act by the State Treasury
before any such court, and introduction of this Global Note into evidence shall
be final and conclusive evidence of such waiver.
8. This Global Note will be governed by and interpreted in accordance
with the laws of the State of New York without regard to any conflicts of laws
principles thereof that would require the application of the laws of a
jurisdiction other than the State of New York, except that all matters governing
the authorization and execution of the Notes by the State Treasury will be
governed by the laws of the Republic of Poland.
9. Except as set forth in this Section 9 and in Section 12, the Notes
are issuable only as fully registered global securities, without coupons, each
registered in the name of DTC, a nominee thereof or a successor to DTC or a
nominee thereof (each, a "Global Note"), and (i) no Global Note may be
transferred, except in whole and not in part, and only to DTC, one or more
nominees of DTC or one or more respective successors of DTC and its nominees,
and (ii) no Global Note may be exchanged for any Note other than another Global
Note, except as provided below. Notwithstanding any other provisions of the
Fiscal Agency Agreement or this Global Note, a Global Note may be transferred
to, or exchanged for registered Notes registered in the name of, a person other
than DTC, a nominee of DTC or a successor of DTC or its nominee if (i) DTC (a)
notifies the State Treasury that it is unwilling or unable to continue as
depository for such Global Note or (b) ceases to be a clearing agency registered
under the Securities Exchange Act of 1934, as amended, at a time when it is
required to be so registered, and in either such case (a) or (b) a replacement
depository is not appointed by the State Treasury within 90 days after
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receiving such notice or becoming aware that DTC is no longer so registered,
(ii) the State Treasury, in its sole discretion at any time, determines not to
have all of the related Notes represented by this Global Note and instructs the
Fiscal Agent in writing that a Global Note shall be so transferable and
exchangeable or (iii) there shall have occurred and be continuing an Event of
Default in respect of the Notes evidenced by this Global Note. Registered Notes
issued in exchange for this Global Note will be issued in the denomination of
$1,000 each, registered in such names as an authorized representative of DTC
shall request, and represented by certificates, each such certificate
representing such aggregate principal amount of the Notes as shall be specified
therein.
So long as DTC, or its nominee, is the registered owner of this Global
Note, DTC or such nominee, as the case may be, will be considered the sole owner
and Holder of the Notes represented by this Global Note for all purposes of the
underlying Notes. Ownership of beneficial interests in this Global Note will be
limited to institutions that have accounts with DTC or its nominee
("participants") or persons that may hold interests through participants.
Ownership of beneficial interests in this Global Note will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
DTC or its nominee (with respect to interests of participants) and on the
records of participants (with respect to interests of persons other than
participants). Except as provided above, owners of beneficial interests in this
Global Note will not be entitled to have the Notes represented by this Global
Note registered in their names, will not receive or be entitled to receive
physical delivery of Notes in definitive form upon exchange or otherwise and
will not be considered the owners or Holders of any Notes represented by this
Global Note. Accordingly, such person owning a beneficial interest in this
Global Note must rely on the procedures of DTC and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest, to exercise any right of a Holder of Notes. The laws of some
States within the United States require that certain purchasers of securities
take physical delivery of such securities in definitive form. Such limits and
such laws may impair the ability to own, transfer or pledge beneficial interests
in this Global Note.
10. Any payment of principal or interest due on the Notes represented
by this Global Note on any Interest Payment Date or at maturity will be made
available by the State Treasury to the Fiscal Agent on such date in accordance
with the provisions of the Fiscal Agency Agreement. As soon as possible
thereafter, the Fiscal Agent will make such payments to DTC or its nominee, as
the case may be, as the registered owner of this Global Note in accordance with
arrangements between the Fiscal Agent and DTC. Neither the State Treasury nor
the Fiscal Agent will have any responsibility or liability for any aspect of the
records relating to payments made on account of beneficial ownership interests
in this Global Note or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
11. The Notes will be subject to the limitation periods with respect
to claims for principal and interest as provided by Article 118 of the Polish
Civil Code, dated April 23, 1964, as amended (the "Civil Code"). The Civil Code
provides a ten year limitation period on claims for principal and a three year
limitation period on claims for interest.
12. The State Treasury will maintain in the Borough of Manhattan, Xxx
Xxxx xxx Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America, a Paying Agent for the
Notes. The State Treasury will cause the Fiscal Agent to maintain a register or
registers in which shall be entered the names and addresses of the Holders of
the Notes of this issue and the particulars of the Notes held by them
respectively and in which, subject to Section 9 above, transfers of the Notes
shall be registered. Such Fiscal Agent and Paying Agent shall be Citibank N.A.,
London, unless and until the State Treasury appoints a different Fiscal Agent
and Paying Agent in the same city. In the event of any such change, the State
Treasury shall give notice of such change to the Holders of the Notes by mailing
written notice of such event to the Holders of the Notes as their names and
addresses appear in the register maintained pursuant to this Section 12.
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13. Subject to Section 9 above, this Global Note is transferable upon
presentation for such purpose at the aforesaid office, accompanied by a written
instrument of transfer in form approved by the State Treasury executed by the
registered Holder hereof or by his duly authorized attorney, whereupon this
Global Note will be canceled and one or more Notes representing an equal
aggregate principal amount of Notes of this issue, comprised of Notes in the
denomination of $1,000 each, will be delivered to the transferee.
Subject to Section 9 above, Notes of this issue upon presentation for
such purpose at the office of the Fiscal Agent referred to in Section 12,
accompanied by a written instrument of transfer in form approved by the State
Treasury executed by the registered Holder or by his duly authorized attorney,
may be exchanged for a Note or Notes representing an equal aggregate principal
amount of other Notes of this issue, comprised of Notes in the denomination of
$1,000 each.
Subject to Section 9 above, the State Treasury will make transfers and
exchanges of Notes of this issue as aforesaid upon compliance by the Holders of
the Notes with such reasonable regulations as may be prescribed by the State
Treasury, and the State Treasury shall not be entitled to make any charge in
respect of transfers and exchanges of Notes of this issue, other than in respect
of transfer taxes, if any.
Each Note shall be dated the date of its authentication by the Fiscal
Agent. Each Note authenticated and delivered upon any transfer or exchange for
or in lieu of the whole or any part of any Note shall carry all the rights, if
any, to interest accrued and unpaid and to accrue which were carried by the
whole or such part of such Note. Notwithstanding anything to the contrary herein
contained, such new Note shall be so dated that neither gain nor loss of
interest shall result from such transfer or exchange.
The Fiscal Agent, as agent of the State Treasury for the purpose,
shall maintain at its Corporate Trust Office, a register for Notes for the
registration and registration of transfers and exchanges of the Notes. Upon
presentation for such purposes at the said office of the Fiscal Agent of any
Note, accompanied by a written instrument of transfer in the form approved by
the State Treasury (it being understood that, until notice to the contrary is
given to Holders of Notes, the State Treasury shall be deemed to have approved
the form of instrument of transfer, if any, printed on any Note), executed by
the registered Holder, in person or by such Holder's attorney thereunto duly
authorized in writing, such Note shall be transferred upon the Note register,
and a new Note of like tenor shall be authenticated and issued in the name of
the transferee. Transfers and exchanges of Notes shall be subject to such
restrictions as shall be set forth in the text of the Notes and such reasonable
regulations as may be prescribed by the State Treasury. Successive registrations
and registrations of transfers and exchanges as aforesaid may be made from time
to time as desired, and each such registration and exchange shall be noted on
the Note register.
14. Interest on the Notes of this issue shall be computed on the basis
of a 360-day year of twelve 30-day months. Payments of interest on this Global
Note will be made by check drawn on a bank or trust company in The City of New
York payable to the order of the registered Holder, or, in the case of joint
Holders, to the order of all such joint Holders or to such person as the joint
Holders may request in writing no later than the third business day preceding
any such payment, provided that payment of principal will be made only upon
prior presentation and surrender of this Global Note at the office of the Paying
Agent of the State Treasury referred to in Section 12. Such check shall be
mailed to the address of the registered Holder as such address shall appear on
the register maintained by the Fiscal Agent pursuant to Section 12 hereof, or,
in the case of joint Holders, to such registered address of that one of such
joint Holders who is first named in the register as one of such joint Holders or
to such address specified in the aforementioned request of such joint Holders.
The registered Holder hereof or his legal personal
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representatives will be regarded as exclusively entitled to the principal moneys
hereby secured, and in the case of joint registered Holders of this Global Note
the said principal moneys shall be deemed to be owing to them on joint account.
Any Holder of Notes, the aggregate principal amount of which equals or exceeds
$1,000,000, may, by written notice to the Paying Agent no later than the Record
Date therefor, elect to receive the interest payment in respect of such Notes by
wire transfer in same-day funds to a bank account maintained by such Holder in
the United States.
15. In case any Note shall at any time become mutilated or destroyed
or stolen or lost, and such Note, or evidence of the loss, theft or destruction
thereof (together with the indemnity hereinafter referred to and such other
documents or proof as may be required in the premises) shall be delivered to the
Fiscal Agent referred to in Section 12 above, a new Note of like tenor and date
will be issued by the State Treasury in exchange for the Note so mutilated, or
in lieu of the Note so destroyed or stolen or lost, but, in the case of any
destroyed or stolen or lost Note, only upon receipt of evidence satisfactory to
the State Treasury that such Note was destroyed or stolen or lost, and, upon
receipt also of indemnity (including, without limitation, an indemnity bond)
satisfactory to the State Treasury and the Fiscal Agent. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note including, without
limitation, the fees and reasonable expenses of the Fiscal Agent and its
counsel, shall be borne by the owner of the Note mutilated, destroyed, stolen or
lost.
16. The State Treasury agrees that if a judgment or order given or
made by any court for the payment of any amount in respect of any Note is
expressed in a currency (the "judgment currency") other than the U.S. dollar
(the "denomination currency"), the State Treasury will pay any deficiency
arising or resulting from any variation in rates of exchange between the date as
of which the amount in the denomination currency is nationally converted into
the amount in the judgment currency for the purposes of such judgment or order
and the date of actual payment thereof. This obligation will constitute a
separate and independent obligation from the other obligations under the Notes,
will give rise to a separate and independent cause of action, will apply
irrespective of any waiver or extension granted from time to time and will
continue in full force and effect notwithstanding any judgment or order for a
liquidated sum or sums in respect of amounts due in respect of the relevant Note
or under any such judgment or order for a liquidated sum or sums in respect of
amounts due in respect of the relevant Note or under any such judgment or order.
17. Any notices or communications to the registered Holder of this
Note shall be sufficient if given in writing in the English language and
delivered by depositing such notice or communication by first class mail (air
mail in the case of Holders whose addresses appearing in the Note register are
in a country other than the United States of America), postage prepaid,
addressed to such registered Holder at its address as it then appears on the
Note register.)
Any notices or communications by the registered Holder of this Note to
the Fiscal Agent shall be sufficient if given in writing in the English language
and delivered by depositing such notice or communication by first class mail
(air mail in the case of Holders whose addresses appearing in the Note register
are in a country other than the United States of America), postage prepaid,
addressed to the Fiscal Agent, or by telegram, telex or facsimile transmission
(in each case confirmed in writing, by United States Mail or air mail, as
applicable, first class postage prepaid; provided, however, that the failure to
give such confirmation shall not affect the effectiveness of such notice).
Notices or communications shall be addressed to the Citigroup Centre, Canada
Square, London E14 5LB, UK (facsimile: x00 0000 000 0000/5877), Attention:
Agency & Trust, or to such other address as shall be specified from time to time
in writing by the Fiscal Agent to the Holders of the Notes.
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EXHIBIT B
PROVISIONS FOR MEETINGS OF HOLDERS
1. DEFINITIONS
In this Exhibit B and the terms and conditions of the Notes, the following
expressions have the following meanings:
"Block Voting Instruction" means, in relation to any Meeting, a document in
the English language issued by a Paying Agent:
(a) certifying that certain specified Notes (the "deposited Notes") have
been deposited with such Paying Agent (or to its order at a bank or
other depositary) or blocked in an account with a clearing system and
will not be released until the earlier of:
(i) the conclusion of the Meeting; and
(ii) the surrender to such Paying Agent, not less than 48 hours before
the time fixed for the Meeting (or, if the Meeting has been
adjourned, the time fixed for its resumption), of the receipt for
the deposited or blocked Notes and notification thereof by such
Paying Agent to the State Treasury;
(b) certifying that the depositor of each deposited Note or a duly
authorized person on its behalf has instructed the relevant Paying
Agent that the votes attributable to such deposited Note are to be
cast in a particular way on each resolution to be put to the Meeting
and that, during the period of 48 hours before the time fixed for the
Meeting, such instructions may not be amended or revoked;
(c) listing the total number and (if in definitive form) the certificate
numbers of the deposited Notes, distinguishing for each resolution
between those in respect of which instructions have been given to vote
for, or against, the resolution; and
(d) authorising a named individual or individuals to vote in respect of
the deposited Notes in accordance with such instructions;
"Chairman" means, in relation to any Meeting, the individual who takes the
chair in accordance with Clause 7 below;
"Meeting" means a meeting of Holders of the Notes (whether originally
convened or resumed following an adjournment);
"Proxy" means, in relation to any Meeting, a person appointed to vote under
a Block Voting Instruction other than:
(a) any such person whose appointment has been revoked and in relation to
whom the Fiscal Agent has been notified in writing of such revocation
by the time which is 48 hours before the time fixed for such Meeting;
and
(b) any such person appointed to vote at a Meeting which has been
adjourned for want of a quorum and who has not been re-appointed to
vote at the Meeting when it is resumed;
"Relevant Fraction" means:
(a) for voting on any Resolution other than one relating to a Reserved
Matter, 51%; and
(b) for voting on any Resolution relating to a Reserved Matter, 75%;
provided, however, that, in the case of a Meeting which has resumed after
adjournment for want of a quorum it means:
(i) for all business other than voting on a Resolution relating to a
Reserved Matter, 25%; and
(ii) for voting on any Resolution relating to a Reserved Matter, 75%;
"Reserved Matter" has the meaning given to such term in the Fiscal Agency
Agreement.
"Resolution" means a resolution passed at a Meeting duly convened and held
in accordance with this Exhibit B by an affirmative vote of Holders of at
least 66 2/3% of the aggregate principal amount of the outstanding Notes
that are represented at a Meeting for which there is a quorum, and with
relation to a "Reserved Matter", Holders of at least 75% of the aggregate
principal amount of the outstanding Notes;
"Voter" means, in relation to any Meeting, the bearer of a Voting
Certificate, a Proxy or the bearer of a Definitive Note who produces such
Definitive Note at the Meeting;
"Voting Certificate" means, in relation to any Meeting, a certificate in
the English language issued by a Paying Agent and dated, in which it is
stated:
(a) that certain specified Notes (the "deposited Notes") have been
deposited with such Paying Agent (or to its order at a bank or other
depositary) or blocked in an account with a clearing system and will
not be released until the earlier of:
(iii) the conclusion of the Meeting; and
(iv) the surrender of such certificate to such Paying Agent; and
(b) that the bearer of such certificate is entitled to attend and vote at
the Meeting in respect of the deposited Notes;
"Written Resolution" means a consent in writing signed by or on behalf of
66 2/3% of Holders of the aggregate principal amount of outstanding Notes
with respect to any Resolution other than one relating to a Reserved Matter
and on behalf of 75% of the aggregate principal amount of the outstanding
Notes with respect to any Resolution relating to a Reserved Matter, whether
contained in one document or several documents in the same form, each
signed by or on behalf of one or more such Holders of the Notes;
"24 hours" means a period of 24 hours including all or part of a day upon
which banks are open for business in both the places where the relevant
Meeting is to be held and in each of the places where the Paying Agents
have their respective offices specified in the Fiscal Agency Agreement
(disregarding for this purpose the day upon which such Meeting is to be
held) and such period
B-2
shall be extended by one period or, to the extent necessary, more periods
of 24 hours until there is included as aforesaid all or part of a day upon
which banks are open for business as aforesaid; and
"48 hours" means two consecutive periods of 24 hours.
2. ISSUE OF VOTING CERTIFICATES AND BLOCK VOTING INSTRUCTIONS
The Holder of a Note may obtain a Voting Certificate from any Paying Agent
or require any Paying Agent to issue a Block Voting Instruction by
depositing such Note with such Paying Agent or arranging for such Note to
be (to its satisfaction) held to its order or under its control or blocked
in an account with a clearing system not later than 48 hours before the
time fixed for the relevant Meeting. A Voting Certificate or Block Voting
Instruction shall be valid until the release of the deposited Notes to
which it relates. So long as a Voting Certificate or Block Voting
Instruction is valid, the bearer thereof (in the case of a Voting
Certificate) or any Proxy named therein (in the case of a Block Voting
Instruction) shall be deemed to be the Holder of the Notes to which it
relates for all purposes in connection with the Meeting. A Voting
Certificate and a Block Voting Instruction cannot be outstanding
simultaneously in respect of the same Note.
3. REFERENCES TO DEPOSIT/RELEASE OF NOTES
Where Notes are represented by a Global Note or are held in definitive form
within a clearing system, references to the deposit, or release, of Notes
shall be construed in accordance with the usual practices (including
blocking the relevant account) of such clearing system.
4. VALIDITY OF BLOCK VOTING INSTRUCTIONS
A Block Voting Instruction shall be valid only if it is deposited at the
specified office of the Fiscal Agent, or at some other place approved by
the Fiscal Agent, at least 24 hours before the time fixed for the relevant
Meeting or the Chairman decides otherwise before the Meeting proceeds to
business. If the Fiscal Agent requires, a notarized copy of each Block
Voting Instruction and satisfactory proof of the identity of each Proxy
named therein shall be produced at the Meeting, but the Fiscal Agent shall
not be obliged to investigate the validity of any Block Voting Instruction
or the authority of any Proxy.
5. CONVENING OF MEETING
The Fiscal Agent may convene a Meeting at any time, and shall be obliged to
do so upon the request in writing of the State Treasury or Holders of at
least 10% of the aggregate principal amount of the outstanding Notes.
6. NOTICE
At least 30 days' notice but not more than 60 days' notice (exclusive of
the day on which the notice is given and of the day on which the relevant
Meeting is to be held) specifying the date, time and place of the Meeting
shall be given to the Holders of the Notes and the Paying Agents (with a
copy to the State Treasury). The notice shall set out the full text of any
resolutions to be proposed and shall state that the Notes may be deposited
with, or to the order of, any Paying Agent for the purpose of obtaining
Voting Certificates or appointing Proxies not later than 48 hours before
the time fixed for the Meeting.
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7. CHAIRMAN
An individual (who may, but need not, be a Holder) nominated in writing by
the State Treasury may take the chair at any Meeting but, if no such
nomination is made or if the individual nominated is not present within 15
minutes after the time fixed for the Meeting, those present shall elect one
of themselves to take the chair failing which, the State Treasury may
appoint a Chairman. The Chairman of an adjourned Meeting need not be the
same person as was the Chairman of the original Meeting.
8. QUORUM
The quorum at any Meeting shall be the Relevant Fraction of the aggregate
principal amount of the outstanding Notes.
9. ADJOURNMENT FOR WANT OF QUORUM
If within 45 minutes after the time fixed for any Meeting a quorum is not
present, then:
(a) in the case of a Meeting requested by Holders of the Notes, it shall
be dissolved; and
(b) in the case of any other Meeting, it shall be adjourned for such
period (which shall be not less than 14 days and not more than 42
days) and to such place as the Chairman determines; provided, however,
that:
(i) the Meeting shall be dissolved if the State Treasury so decides;
and
(ii) no Meeting may be adjourned more than once for want of a quorum.
10. ADJOURNED MEETING
The Chairman may, with the consent of (and shall if directed by) any
Meeting, adjourn such Meeting from time to time and from place to place,
but no business shall be transacted at any adjourned Meeting except
business which might lawfully have been transacted at the Meeting from
which the adjournment took place.
11. NOTICE FOLLOWING ADJOURNMENT
Clause 6 above shall apply to any Meeting which is to be resumed after
adjournment for want of a quorum save that:
(a) 10 days' notice (exclusive of the day on which the notice is given and
of the day on which the Meeting is to be resumed) shall be sufficient;
and
(b) the notice shall specifically set out the quorum requirements which
will apply when the Meeting resumes.
It shall not be necessary to give notice of the resumption of a Meeting
which has been adjourned for any other reason.
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12. PARTICIPATION
The following may attend and speak at a Meeting:
(a) Voters, one designated financial adviser and one designated legal
counsel on their behalf;
(b) representatives of the State Treasury and the Fiscal Agent;
(c) the financial advisers of the State Treasury;
(d) the legal counsel to the State Treasury and the Fiscal Agent; and
(e) any other person approved by the Meeting.
13. SHOW OF HANDS
Every question submitted to a Meeting shall be decided in the first
instance by a show of hands, except for a question on a Reserved Matter,
which shall be decided by a poll. Unless a poll is validly demanded before
or at the time that the result is declared, the Chairman's declaration that
on a show of hands a Resolution has been passed, passed by a particular
majority, rejected or rejected by a particular majority shall be
conclusive, without proof of the number of votes cast for, or against, the
Resolution.
14. POLL
A demand for a poll shall be valid if it is made by the Chairman, the State
Treasury or one or more Voters representing or holding not less than one
fiftieth of the aggregate principal amount of the outstanding Notes. The
poll may be taken immediately or after such adjournment as the Chairman
directs, but any poll demanded on the election of the Chairman or on any
question of adjournment shall be taken at the Meeting without adjournment.
A valid demand for a poll shall not prevent the continuation of the
relevant Meeting for any other business as the Chairman directs.
15. VOTES
Every Voter shall have: (a) on a show of hands, one vote; and (b) on a
poll, the number of votes obtained by dividing that fraction of the
aggregate principal amount of the outstanding Note(s) represented or held
by such Holder by the lowest denomination of the Notes.
In the case of a voting tie the Chairman shall have a casting vote,
provided that the Chairman is a Holder. If the Chairman is not a Holder,
matters shall not be deemed approved in the event of a tie.
Unless the terms of any Block Voting Instruction state otherwise, a Voter
shall not be obliged to exercise all the votes to which such Voter is
entitled or to cast all the votes which such Voter exercises in the same
way.
16. VALIDITY OF VOTES BY PROXIES
Any vote by a Proxy in accordance with the relevant Block Voting
Instruction shall be valid even if such Block Voting Instruction or any
instruction pursuant to which it was given has been amended or revoked,
provided that the Fiscal Agent has not been notified in writing of such
amendment or revocation by the time which is 24 hours before the time fixed
for the relevant
B-5
Meeting. Unless revoked, any appointment of a Proxy under a Block Voting
Instruction in relation to a Meeting shall remain in force in relation to
any resumption of such Meeting following an adjournment; provided, however,
that no such appointment of a Proxy in relation to a Meeting originally
convened which has been adjourned for want of a quorum shall remain in
force in relation to such Meeting when it is resumed. Any person appointed
to vote at such a Meeting must be re-appointed under a Block Voting
Instruction Proxy to vote at the Meeting when it is resumed.
17. POWERS
A Meeting shall have power (exercisable by Resolution), without prejudice
to any other powers conferred on it or any other person:
(a) to approve any Reserved Matter;
(b) to approve any proposal by the State Treasury for any modification,
abrogation, variation or compromise of any of the conditions or any
arrangement in respect of the obligations of the State Treasury under
or in respect of the Notes;
(c) to approve any proposal by the State Treasury for any modification,
amendment or supplement of any provision of or to take action with
respect to the Fiscal Agency Agreement or any arrangement in respect
of the obligations of the State Treasury thereunder;
(d) to approve the substitution of any person for the State Treasury (or
any previous substitute) as principal obligor under the Notes;
(e) to waive any breach or authorize any proposed breach by the State
Treasury of its obligations under or in respect of the Notes or any
act or omission which might otherwise constitute an event of default
under the Notes;
(f) to authorize the Fiscal Agent or any other person to execute all
documents and do all things necessary to give effect to any
Resolution;
(g) to give any other authorisation or approval which is required to be
given by Resolution; and
(h) to appoint any persons as a committee to represent the interests of
the Holders of the Notes and to confer upon such committee any powers
which the Holders of the Notes could themselves exercise by
Resolution.
18. RESOLUTION BINDS ALL HOLDERS
A Resolution shall be binding upon all Holders of the Notes whether or not
present at such Meeting and each of the Holders of the Notes shall be bound
to give effect to it accordingly. Notice of the result of every vote on a
Resolution shall be given to the Holders of the Notes and the Paying Agents
(with a copy to the State Treasury) within 14 days of the conclusion of the
Meeting.
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19. MINUTES
Minutes shall be made of all resolutions and proceedings at each Meeting.
The Chairman shall sign the minutes, which shall be prima facie evidence of
the proceedings recorded therein. Unless and until the contrary is proved,
every such Meeting in respect of the proceedings of which minutes have been
summarized and signed shall be deemed to have been duly convened and held
and all resolutions passed or proceedings transacted at it to have been
duly passed and transacted.
20. WRITTEN RESOLUTION
A Written Resolution shall take effect as if it were a Resolution.
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