LIMITED LIABILITY PARTNERSHIP EXECUTION COPY
Exhibit 10.3
 |
LIMITED LIABILITY PARTNERSHIP
EXECUTION COPY |
8 May 2006
XXXXXXX EUROPEAN FINANCE S.A.
as Issuer
XXXXXXX CORPORATION
as Guarantor
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
as Arranger
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XXXXXX BROTHERS INTERNATIONAL (EUROPE)
as Dealer
relating to a U.S.$ 2,200,000,000
EURO-COMMERCIAL PAPER PROGRAMME
CONTENTS
| Clause |
Page | |||
| 1. | Interpretation | 2 | ||
| 2. | Issue | 4 | ||
| 3. | Representations And Warranties | 7 | ||
| 4. | Covenants And Agreements | 10 | ||
| 5. | Conditions Precedent | 14 | ||
| 6. | Termination And Appointment | 15 | ||
| 7. | Nomination Of New Issuer | 15 | ||
| 8. | Notices | 16 | ||
| 9. | Third Party Rights | 16 | ||
| 10. | Law And Jurisdiction | 16 | ||
| SCHEDULE 1 Condition Precedent Documents |
18 | |||
| SCHEDULE 2 Selling Restrictions |
20 | |||
| SCHEDULE 3 Programme Summary |
23 | |||
| SCHEDULE 4 Increase Of Maximum Amount |
26 | |||
| SCHEDULE 5 Appointment Of New Dealer |
28 | |||
| SCHEDULE 6 Form Of Calculation Agency Agreement |
30 | |||
THIS AGREEMENT is made on 8 May 2006
BETWEEN
| (1) | XXXXXXX EUROPEAN FINANCE S.A. (the “Issuer”); |
| (2) | XXXXXXX CORPORATION, (the “Guarantor”); |
| (3) | XXXXXX BROTHERS INTERNATIONAL (EUROPE) (the “Arranger”); and |
| (4) | XXXXXX BROTHERS INTERNATIONAL (EUROPE), as Dealer. |
IT IS AGREED as follows:
| 1. | INTERPRETATION |
| 1.1 | Definitions |
In this Agreement:
“Agency Agreement” means the issuing and paying agency agreement, dated the date hereof, between the Issuer, the Guarantor and the Issuing and Paying Agent, providing for the issue of and payment on the Notes, as such agreement may be amended or supplemented from time to time;
“Agreements” means this Agreement (as amended or supplemented from time to time), any agreement reached pursuant to Clause 2.1, the Deed of Covenant, the Guarantee and the Agency Agreement;
“Dealer” means the institution specified as a Dealer in the Programme Summary together with any additional institution or institutions appointed pursuant to Clause 6.2 but excluding any institution or institutions whose appointment has been terminated pursuant to Clause 6.1;
“Deed of Covenant” means the deed of covenant, dated the date hereof, executed by the Issuer in respect of Global Notes issued pursuant to the Agency Agreement, as such deed may be amended or supplemented from time to time;
“Definitive Note” means a security printed Note in definitive form;
“Disclosure Documents” means, at any particular date, (a) the Information Memorandum, (b) the most recently published audited consolidated financial statements of the Guarantor and, if financial statements have been published by the Issuer, the most recently published audited unconsolidated financial statements of the Issuer and any subsequent quarterly unaudited financial statements of the Issuer and the Guarantor (in the case of the Guarantor each having been filed with the United States Securities and Exchange Commission (the “SEC”)), and (c) any other document delivered by the Issuer or the Guarantor to the Dealer which the Issuer or the Guarantor (as the case may be) has expressly authorised to be distributed in connection with transactions contemplated by this Agreement;
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“Dollars” and “U.S.$” denote the lawful currency of the United States of America; and “Dollar Note” means a Note denominated in Dollars;
“Dollar Equivalent” means, on any day:
| (a) | in relation to any Dollar Note, the nominal amount of such Note; and |
| (b) | in relation to any Note denominated or to be denominated in any other currency, the amount in Dollars which would be required to purchase the nominal amount of such Note as expressed in such other currency at the spot rate of exchange for the purchase of such other currency with Dollars quoted by the Issuing and Paying Agent at or about 11.00 a.m. (London time) on such day; |
“Euro”, “euro”, “EUR” or “€” means the lawful currency of member states of the European Union that adopt the single currency introduced in accordance with the Treaty; and “Euro Note” means a Note denominated in Euro;
“FSMA” means the Financial Services and Markets Xxx 0000;
“Global Note” means a Note in global form, representing an issue of commercial paper notes of a like maturity which may be issued by the Issuer from time to time pursuant to the Agency Agreement;
“Guarantee” means the guarantee dated on or about the date of this Agreement and executed as a deed by the Guarantor in respect of the obligations of the Issuer under the Notes and the Deed of Covenant;
“Index Linked Note” means a Note, the redemption or coupon amount of which is not fixed at the time of issue, but which is to be calculated in accordance with such formula or other arrangement as is agreed between the Issuer and the Dealer at the time of reaching agreement under Clause 2.1;
“Information Memorandum” means the most recent information memorandum, as the same may be amended or supplemented from time to time, containing information about the Issuer, the Guarantor and the Programme, the text of which has been prepared by or on behalf of the Issuer and the Guarantor for use by the Dealer in connection with the transactions contemplated by this Agreement;
“Issuing and Paying Agent” means Deutsche Bank AG, London Branch and any successor Issuing and Paying Agent appointed in accordance with the Agency Agreement;
“Note” means a commercial paper note of the Issuer purchased or to be purchased by a Dealer under this Agreement, in bearer global or definitive form, substantially in the relevant form scheduled to the Agency Agreement or such other form(s) as may be agreed from time to time between the Issuer and the Issuing and Paying Agent and, unless the context otherwise requires, includes the commercial paper notes represented by the Global Notes;
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“Programme” means the Euro-commercial paper programme established by this Agreement;
“Programme Summary” means the summary of the particulars of the Programme as set out in Schedule 3, as such summary may be amended or superseded from time to time;
“Securities Act” means the United States Securities Act of 1933, as amended;
“Subsidiary” means, with respect to any person, (i) any corporation, association or other business entity of which more than 50% of the total voting power of shares of capital stock or other equity interest entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other subsidiaries of that person (or a combination thereof) and (ii) any partnership (a) the sole general partner or managing general partner of which is such person or a subsidiary or such person or (b) the only general partners of which are such person or of one or more subsidiaries of such person (or any combination thereof);
“Treaty” means the Treaty establishing the European Community, as amended; and
“USCP Program” means the Guarantor’s U.S. commercial paper program established on 5 May 2006 by the Guarantor, as issuer and Xxxxxxx, Xxxxx & Co., as U.S. dealer, concerning notes to be issued pursuant to an Issuing and Paying Agency Agreement between the Guarantor and Deutsche Bank Trust Company Americas, dated 5 May 2006.
| 1.2 | Programme Summary |
Terms not expressly defined herein shall have the meanings set out in the Programme Summary.
| 1.3 | Legislation |
Any reference in this Agreement to any legislation (whether primary legislation or regulations or other subsidiary legislation made pursuant to primary legislation) shall be construed as a reference to such legislation as the same may have been, or may from time to time be, amended or re-enacted.
| 1.4 | Clauses and Schedules |
Any reference in this Agreement to a Clause, sub-clause or a Schedule is, unless otherwise stated, to a clause or sub-clause hereof or a schedule hereto.
| 1.5 | Headings |
Headings and sub-headings are for ease of reference only and shall not affect the construction of this Agreement.
| 2. | ISSUE |
| 2.1 | Basis of agreements to issue; uncommitted facility |
Subject to the terms hereof, the Issuer may issue Notes to the Dealer from time to time at such prices and upon such terms as the Issuer and the Dealer may agree, provided
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that the Issuer has, and shall have, no obligation to issue Notes to the Dealer, except as agreed, and the Dealer has, and shall have, no obligation to subscribe Notes from the Issuer, except as agreed. The Issuer acknowledges that the Dealer may resell Notes subscribed by the Dealer. The tenor of each Note shall not be less than the Minimum Term nor greater than the Maximum Term specified in the Programme Summary, calculated from (and including) the date of issue of such Note to (but excluding) the maturity date thereof. Definitive Notes (if any) shall be issued in the Denomination(s) specified in the Programme Summary. Each issue of Notes having the same issue date, maturity date, currency or denomination, yield and redemption basis will be represented by a Global Note or by Definitive Notes having the aggregate nominal amount of such issue as may be agreed between the Issuer and the Dealer.
| 2.2 | Procedures |
If the Issuer and the Dealer shall agree on the terms of the subscription of any Note by the Dealer (including agreement with respect to the issue date, maturity date, currency, denomination, yield, redemption basis, aggregate nominal amount and purchase price), then:
| 2.2.1 | Instruction to Issuing and Paying Agent: the Issuer shall instruct the Issuing and Paying Agent to issue such Note and deliver it in accordance with the terms of the Agency Agreement; |
| 2.2.2 | Payment of purchase price: the Dealer shall subscribe such Note on the date of issue: |
| (a) | Dollar Note: in the case of a Dollar Note, by transfer of funds settled through the New York Clearing House Interbank Payments System (or such other same-day value funds as at the time shall be customary for the settlement in New York City of international banking transactions denominated in Dollars) to such account of the Issuing and Paying Agent in New York City denominated in Dollars as the Issuing and Paying Agent shall have specified for this purpose; or |
| (b) | Euro Note: in the case of a Euro Note, by transfer of funds settled through the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System to such account of the Issuing and Paying Agent denominated in Euro as the Issuing and Paying Agent shall have specified for this purpose; or |
| (c) | Other Notes: in all other cases, by transfer of freely transferable same-day funds in the relevant currency to such account of the Issuing and Paying Agent at such bank in the principal domestic financial centre for such currency as the Issuing and Paying Agent shall have specified for this purpose, |
or, in each case, by such other form of transfer as may be agreed between the Dealer and the Issuer; and
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| 2.2.3 | Delivery Instructions: the Dealer shall notify the Issuer and the Issuing and Paying Agent of the Issuer of the payment and delivery instructions applicable to such Note in accordance with prevailing market practice and in sufficient time to enable the Issuing and Paying Agent to deliver such Note (or, in the case of any Sterling Definitive Note, make the same available for collection) on its issue date. |
| 2.3 | Failure of agreed issuance |
If for any reason (including, without limitation, the failure of the relevant trade) a Note agreed to be purchased pursuant to Clause 2.1 is not to be issued, each of the Issuer and the Dealer shall immediately notify the Issuing and Paying Agent thereof.
| 2.4 | Issuance currencies |
The parties acknowledge that Notes issued under the Programme may be denominated in Dollars or, subject as provided below, in any other currency. Any agreement reached pursuant to Clause 2.1 to sell and purchase a Note denominated in a currency other than Dollars shall be conditional upon:
| 2.4.1 | Compliance: it being lawful and in compliance with all requirements of any relevant central bank and any other relevant fiscal, monetary, regulatory or other authority, for deposits to be made in such currency and for such Note to be issued, offered for sale, sold and delivered; |
| 2.4.2 | Convertibility: such other currency being freely transferable and freely convertible into Dollars; and |
| 2.4.3 | Amendments: any appropriate amendments which the Dealer, the Issuer or the Issuing and Paying Agent shall require having been made to this Agreement and/or the Agency Agreement. |
| 2.5 | Maximum Amount |
The Issuer shall ensure that the outstanding nominal amount of all Notes issued under the Programme, when taken together with the aggregate principal amount outstanding from time to time under the USCP Program, does not exceed the Maximum Amount. For the purposes of calculating the Maximum Amount, the nominal amount of any outstanding Note or Notes denominated in any currency other than Dollars shall be taken as the Dollar Equivalent of such nominal amount as at the date of the agreement for the issue of the Note or Notes then to be issued provided that in calculating the nominal amount of Notes outstanding on the date of issue of such Note or Notes there shall be disregarded Notes which mature on that date. The Issuer may increase the Maximum Amount by giving at least ten days’ notice by letter, substantially in the form set out in Schedule 4, to the Dealer, the Issuing and Paying Agent and the Paying Agents. Such increase will not take effect until the Dealer has received from the Issuer the documents listed in such letter (if required by the Dealer), in each case in form and substance acceptable to the Dealer.
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| 2.6 | Calculation Agent |
If Index Linked Notes are to be issued, the Issuer will appoint either the Dealer or the Issuing and Paying Agent (subject to the consent of the Dealer or the Issuing and Paying Agent, as the case may be, thereto) or some other person (subject to the consent of the Dealer and the Paying Agent to such person’s appointment) to be the calculation agent in respect of such Index Linked Notes and the following provisions shall apply:
| 2.6.1 | Dealer: if the Dealer is to be the calculation agent, its appointment as such shall be on the terms of the form of agreement set out in Schedule 6, and the Dealer will be deemed to have entered into an agreement in such form for a particular calculation if it is named as calculation agent in the redemption calculation attached to or endorsed on the relevant Note; |
| 2.6.2 | Issuing and Paying Agent: if the Issuing and Paying Agent is to be the calculation agent, its appointment as such shall be on the terms set out in the Agency Agreement; and |
| 2.6.3 | Other Calculation Agent: if the person nominated by the Dealer or by the Issuing and Paying Agent as calculation agent is not the Dealer, that person shall execute (if it has not already done so) an agreement substantially in the form of the agreement set out in Schedule 6 and the appointment of that person shall be on the terms of that agreement. |
| 3. | REPRESENTATIONS AND WARRANTIES |
| 3.1 | Representations and warranties |
Each of the Issuer (in respect of itself) and the Guarantor (in respect of itself and the Issuer) represents and warrants to the Dealer at the date of this Agreement, each date upon which the Maximum Amount is increased, each date upon which an agreement for the issue and subscription of Notes is made by the Issuer and each date upon which Notes are, or are to be, issued by the Issuer (by reference to the facts and circumstances then existing):
| 3.1.1 | Authorisation; valid, binding and enforceable: each of: |
| (a) | the establishment of the Programme and the execution, delivery and performance by the Issuer and the Guarantor of the Agreements and the Notes; |
| (b) | the entering into and performance by the Issuer and the Guarantor of any agreement for the subscription of Notes reached pursuant to Clause 2.1; and |
| (c) | the issue and sale of the Notes by the Issuer and the Guarantor under the Agreements, |
has been duly authorised by all necessary action and the same constitute, or, in the case of Notes, will, when issued in accordance with the Agency
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Agreement, constitute, valid and binding obligations of each of the Issuer and the Guarantor enforceable against them in accordance with their respective terms (subject, as to enforceability, to bankruptcy, insolvency, reorganisation and similar laws of general applicability relating to or affecting creditors’ rights and to general principles of equity);
| 3.1.2 | Status: the obligations of the Issuer and the Guarantor under each of the Agreements to which it is a party and the Notes will rank (other than in the case of obligations preferred by mandatory provisions of law) pari passu with all other present and future unsecured and unsubordinated indebtedness of (i) the Issuer or guaranteed by the Issuer and (ii) the Guarantor, or guaranteed by the Guarantor, as the case may be; |
| 3.1.3 | Incorporation, capacity: each of the Issuer and the Guarantor are duly incorporated and validly existing under the laws of its jurisdiction of incorporation and: |
| (a) | the establishment of the Programme, the execution, delivery and performance by the Issuer and the Guarantor of the Agreements and the Notes; |
| (b) | the entering into and performance by the Issuer and the Guarantor of any agreement for the issue and subscription of Notes reached pursuant to Clause 2.1; and |
| (c) | the issue and subscription of the Notes by the Issuer and Guarantor under the Agreements, |
will not infringe any of the provisions of the Issuer’s or the Guarantor’s certificate of incorporation, as amended, and amended and restated by-laws and will not contravene any law, regulation, order or judgement to which the Issuer or the Guarantor or any of its assets is subject nor result in the breach of any term of, or cause a default under, any instrument to which the Issuer or the Guarantor is a party or by which it or any of its assets may be bound, in each case, in any material respect, in the context of the Programme and of the Notes issued thereunder;
| 3.1.4 | Approvals: all consents, authorisations, licences or approvals of and registrations and filings with any governmental or regulatory authority required in connection with the issue by the Issuer and the Guarantor of Notes under the Agreements and the performance of the Issuer’s and the Guarantor’s obligations under the Agreements and the Notes have been obtained and are in full force and effect, and copies thereof have been supplied to the Dealer except for such consents, authorisations, licences, approvals, restrictions and filings as could reasonably be expected to be material in the context of this Agreement; |
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| 3.1.5 | Disclosure: in the context of this Agreement and the transactions contemplated hereby, the information contained or incorporated by reference in the Disclosure Documents is true and accurate in all material respects and is not misleading in any material respect and there are no other facts in relation to the Issuer, the Guarantor or any Notes the omission of which makes, in the context of the issue of the Notes, the Disclosure Documents as a whole or any such information contained or incorporated by reference therein misleading in any material respect; |
| 3.1.6 | Financial Statements: the audited financial statements of the Issuer (if such financial statements are available), consolidated audited financial statements of the Guarantor and any quarterly unaudited financial statements of the Issuer or the Guarantor (in the case of the Guarantor each having been filed with the SEC and incorporated by reference in the Information Memorandum), present fairly and accurately the financial position of the Issuer and the Guarantor (consolidated in the case of the Guarantor) as of the respective dates of such statements and the results of operations of the Issuer and the Guarantor (consolidated in the case of the Guarantor) for the periods they cover or to which they relate and such financial statements have been prepared in accordance with the relevant laws of the relevant jurisdiction of incorporation of each of the Issuer and the Guarantor and with generally accepted accounting principles of the relevant jurisdiction of incorporation of each of the Issuer and the Guarantor applied on a consistent basis throughout the periods involved (unless and to the extent otherwise stated therein); |
| 3.1.7 | No material adverse change, No litigation: since the date of the most recent audited unconcolidated financial statements of the Issuer (if such financial statements are available) and audited consolidated financial statements of the Guarantor supplied to the Dealer and, in relation to any date on which this warranty falls to be made after the date hereof, save as otherwise disclosed by any Disclosure Document subsequently delivered by the Issuer or Guarantor (as the case may be) to the Dealer: |
| (a) | there has been no adverse change in the business, financial or other condition of the Issuer or the Guarantor or any of its Subsidiaries taken as a whole; and |
| (b) | there is no litigation, arbitration or governmental proceeding pending or, to the knowledge of the Issuer or the Guarantor, threatened against or affecting the Issuer, the Guarantor or any of the Guarantor’s Subsidiaries, |
which in any case could reasonably be expected to be material in the context of this Agreement and the transactions contemplated hereby;
| 3.1.8 | No default: neither the Issuer nor the Guarantor are in default in respect of payment of any indebtedness for borrowed money where such indebtedness is in an aggregate amount greater than U.S. $50,000,000; |
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| 3.1.9 | No ratings downgrade: there has been no downgrading, nor any notice to the Issuer or the Guarantor of any intended downgrading, in the rating accorded to the Guarantor’s short-term or long-term debt by Standard & Poor’s Ratings Services, a division of the XxXxxx-Xxxx Companies Inc., and Xxxxx’x Investors Service, Inc., or any other rating agency which has issued a rating in connection with the Guarantor or any security of the Guarantor; |
| 3.1.10 | Taxation: subject to compliance with the terms of the Agreements, neither the Issuer nor the Guarantor are required by any law or regulation or any relevant taxing authority in the United States to make any deduction or withholding from any payment due under the Notes, the Agency Agreement or the Deed of Covenant for or on account of any income, registration, transfer or turnover taxes, customs or other duties or taxes of any kind; |
| 3.1.11 | Maximum Amount not exceeded: the outstanding nominal amount of all Notes on the date of issue of any Note, when taken together with the aggregate principal amount outstanding from time to time under the USCP Program, does not and will not exceed the Maximum Amount set out in the Programme Summary (as increased from time to time pursuant to Clause 2.5) and for this purpose the nominal amount of any Note denominated in any currency other than Dollars shall be taken as the Dollar Equivalent of such nominal amount as at the date of the agreement for the issue of such Note provided that in calculating the nominal amount of the Notes outstanding on the date of issue of such Note there shall be disregarded Notes which mature on that date; and |
| 3.1.12 | Investment Company: neither the Issuer nor the Guarantor is an investment company as defined in the United States Investment Company Act of 1940. |
| 3.1.13 | No Trade or Business by the Issuer in the United States: the Issuer is not engaged, and has not since its formation been engaged, in any trade or business within the United States, as determined for United States federal tax purposes. |
| 3.2 | Notice of inaccuracy |
If, prior to the time a Note is issued and delivered to or for the account of the Dealer, an event occurs which would render any of the representations and warranties set out in Clause 3.1 immediately, or with the lapse of time, untrue or incorrect, the Issuer will inform the Dealer in writing as soon as practicable of the occurrence of such event. In either case, the Dealer shall inform the Issuer in writing without any undue delay whether it wishes to continue or discontinue the issuance and delivery of the respective Notes.
| 4. | COVENANTS AND AGREEMENTS |
| 4.1 | Issuer |
The Issuer and the Guarantor covenant and agree that:
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| 4.1.1 | Delivery of published information: whenever the Issuer or the Guarantor publishes or makes available to its shareholders or to the public (by filing with any regulatory authority, securities exchange or otherwise) any information which could reasonably be expected to be material in the context of this Agreement and the transactions contemplated hereby, the Issuer or the Guarantor (as the case may be) shall notify the Dealer as to the nature of such information, shall make a reasonable number of copies of such information available to the Dealer upon request to permit distribution to investors and prospective investors and shall take such action as may be necessary to ensure that the representation and warranty contained in sub-clause 3.1.5 is true and accurate in all material respects on the dates contemplated by such sub-clause. Such notification may be by means of electronic communication, including, but not limited to, by email and/or directing the Dealer’s attention to information on-line; |
| 4.1.2 | Indemnity: the Issuer, failing which the Guarantor, shall indemnify and hold harmless on demand the Dealer against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax) which it may incur arising out of, in connection with or based upon: |
| (a) | the Issuer’s failure to make due payment under the Notes; or |
| (b) | Notes not being issued for any reason (other than as a result of the failure of the Dealer to pay for such Notes) after an agreement for the sale of such Notes has been made; |
| (c) | the Guarantor’s failure to make due payment under the Guarantee; or |
| (d) | any breach or alleged breach of the representations, warranties, covenants or agreements made by the Issuer or the Guarantor in this Agreement unless in the case of an alleged breach only, the allegation is being made by a person other than the Dealer or any untrue statement or alleged untrue statement of any material fact contained in the Disclosure Documents or the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect unless in the case of an alleged breach only, the allegation is being made by a person other than the Dealer; |
| 4.1.3 | Procedure for indemnification: The Dealer will promptly notify the Issuer and the Guarantor in writing of any claim in respect of which indemnification may be sought under Clause 4.1.2 of this Agreement against the Issuer or the Guarantor, as the case may be, provided that (i) the omission so to notify the Issuer or the Guarantor will not relieve the Issuer or the Guarantor, as the case may be, from any liability which it may have hereunder unless and except to the extent it did not otherwise learn of such claim and such failure results in the forfeiture by the Issuer or the Guarantor, as the case may be, of |
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substantial rights and defences, and (ii) the omission to notify the Issuer or the Guarantor, as the case may be, will not relieve it from liability which it may have to the Dealer otherwise than on account of Clause 4.1.2.
In the event that any such claim is made against the Dealer and it notifies the Issuer and/or the Guarantor of the existence thereof, the Issuer or the Guarantor, as the case may be, will be entitled to participate therein, and to the extent that it may elect by written notice delivered to the Dealer, to assume the defence thereof, with counsel reasonably satisfactory to the Dealer; provided that if the defendants in any such claim include both the Dealer and the Issuer or the Guarantor, as the case may be, and the Dealer shall have concluded that there may be legal defences available to it which are different from or additional to those available to the Issuer or the Guarantor, as the case may be, the Issuer or the Guarantor shall not have the right to direct the defence of such claim on behalf of the Dealer, and the Dealer shall have the right to select separate counsel to assert such legal defences on behalf of the Dealer.
Upon receipt of notice from the Issuer or the Guarantor, as the case may be, to the Dealer of the Issuer’s or the Guarantor’s election so to assume the defence of such claim and approval by the Dealer of counsel, neither the Issuer nor the Guarantor will be liable to the Dealer for expenses incurred thereafter by the Dealer in connection with the defence thereof (other than reasonable costs of investigation) unless (i) the Dealer shall have employed separate counsel in connection with the assertion of legal defences in accordance with the proviso to the next preceding sentence (it being understood, however, that neither the Issuer nor the Guarantor, as the case may be, shall be liable for the expenses of more than one separate counsel (in addition to any local counsel in the jurisdiction in which any claim is brought), approved by the Dealer, representing the Dealer who is party to such claim), (ii) the Issuer or the Guarantor, as the case may be, shall not have employed counsel reasonably satisfactory to the Dealer to represent the Dealer within a reasonable time after notice of existence of the claim, or (iii) the Issuer or the Guarantor, as the case may be, has authorised in writing the employment of counsel for the Dealer.
The Issuer and the Guarantor agree that without the Dealer’s prior written consent, it will not settle compromise or consent to the entry of any judgment in any claim in respect of which indemnification may be sought under Clause 4.1.2 of this Agreement (whether or not the Dealer is an actual or potential party to such claim), unless such settlement, compromise or consent includes an unconditional release of the Dealer from all liability arising out of such claim.
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| 4.1.4 | Expenses, stamp duties, amendments: the Issuer, failing which the Guarantor, will: |
| (a) | Arranger’s expenses: pay, or reimburse the Arranger for, all reasonable out-of-pocket costs and expenses (including United Kingdom value added tax and any other taxes or duties thereon and fees and disbursements of counsel to the Arranger) incurred by the Arranger in connection with the preparation, negotiation, printing, execution and delivery of this Agreement and all documents contemplated by this Agreement; |
| (b) | Dealer’s expenses: pay, or reimburse the Dealer for, all reasonable out-of-pocket costs and expenses (including United Kingdom value added tax and any other taxes or duties thereon and fees and disbursements of counsel to the Dealer) incurred by the Dealer in connection with the enforcement or protection of its rights under this Agreement; |
| (c) | Stamp duties: pay all stamp, registration and other taxes and duties (including any interest and penalties thereon or in connection therewith) except those arising solely as a result of the Dealer’s default which may be payable upon or in connection with the creation and issue of the Notes and the execution, delivery and performance of the Agreements and the Issuer shall indemnify the Dealer against any claim, demand, action, liability, damages, cost, loss or reasonable expense (including, without limitation, legal fees and any applicable value added tax) which it may incur as a result or arising out of or in relation to any failure to pay or delay in paying any of the same; |
| (d) | Amendments: notify the Dealer of any change in the identity of or the offices of the Issuing and Paying Agent and any material change or amendment to or termination of the Agency Agreement, the Guarantee or the Deed of Covenant not later than five days prior to the making of any such change or amendment or such termination; and it will not permit to become effective any such change, amendment or termination which could reasonably be expected to affect adversely the interests of the Dealer or the holder of any Notes then outstanding; and |
| 4.1.5 | No deposit-taking: the Issuer will issue Notes only if the following conditions apply (or the Notes can otherwise be issued without contravention of section 19 of the FSMA): |
| (a) | Selling restrictions: the Dealer represents, warrants and agrees in the terms set out in sub-clause 3.1 of Schedule 2; and |
| (b) | Minimum denomination: the redemption value of each such Note is not less than £100,000 (or an amount of equivalent value denominated wholly or partly in a currency other than sterling), and no part of any |
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| Note may be transferred unless the redemption value of that part is not less than £100,000 (or such an equivalent amount). |
| 4.1.6 | No Trade or Business by the Issuer in the United States: the Issuer will not engage in any trade or business within the United States, as determined for United States federal tax purposes. |
| 4.2 | Compliance |
The Issuer shall take such steps (in conjunction with the Dealer, where appropriate) to ensure that any laws and regulations or requirements of any governmental agency, authority or institution which may from time to time be applicable to any Note shall be fully observed and complied with and in particular (but without limitation) that neither the Issuer, nor any of its affiliates (as defined in Rule 405 under the Securities Act) nor any person acting on its or its affiliates behalf have engaged or will engage in any directed selling efforts with respect to the Notes, and they have complied and will comply with the offering restrictions requirement of Regulation S. Terms used in this sub-clause have the meanings given to them by Regulation S under the Securities Act.
| 4.3 | Selling restrictions |
The Dealer represents, covenants and agrees that it has complied with and will comply with the selling restrictions set out in Schedule 2. Subject to compliance with those restrictions, the Dealer is hereby authorised by the Issuer and the Guarantor to circulate the Disclosure Documents to purchasers or potential purchasers of the Notes.
| 4.4 | Dealers’ obligations several |
The obligations of each Dealer contained in this Agreement are several.
| 4.5 | Status of Arranger |
The Dealer agrees that the Arranger has only acted in an administrative capacity to facilitate the establishment and/or maintenance of the Programme and has no responsibility to it for (a) the adequacy, accuracy, completeness or reasonableness of any representation, warranty, undertaking, agreement, statement or information in the Information Memorandum, this Agreement or any information provided in connection with the Programme or (b) the nature and suitability to it of all legal, tax and accounting matters and all documentation in connection with the Programme or any issue of Notes thereunder.
| 5. | CONDITIONS PRECEDENT |
| 5.1 | Conditions precedent to first issue |
The Issuer and the Guarantor, as the case may be, agree to deliver to the Dealer, prior to the first issue of Notes, each of the documents set out in Schedule 1 in form, substance and number reasonably requested by the Dealer.
| 5.2 | Conditions precedent to each issue |
In relation to each issue of Notes, it shall be a condition precedent to the subscription thereof by the Dealer that (a) the representations and warranties in Clause 3.1 shall be true and correct on each date upon which an agreement for the sale of Notes is made hereunder and on the date on which such Notes are issued by reference to the facts and circumstances then existing and that (b) there is no other material breach of the Issuer’s or Guarantor’s obligations under any of the Agreements or the Notes.
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| 5.3 | Sterling Definitive Notes |
In relation to an issue of Sterling Definitive Notes (and if so agreed between the Issuer and the Dealer), it shall be a condition precedent to the subscription thereof by any Dealer that the Issuer supplies to each Dealer, not less than five days prior to the first issue of such Notes to that Dealer confirmation from the Issuing and Paying Agent that the relevant agreed forms of Definitive Note have been security printed and the same delivered to the Issuing and Paying Agent.
| 6. | TERMINATION AND APPOINTMENT |
| 6.1 | Termination |
The Issuer may terminate the appointment of the Dealer, and the Dealer may resign, on not less than ten days’ written notice to the Dealer or the Issuer, as the case may be. The Issuer shall promptly inform the Issuing and Paying Agent and the Paying Agent of any such termination or resignation. The rights and obligations of each party hereto shall not terminate in respect of any rights or obligations accrued or incurred before the date on which such termination takes effect and the provisions of sub-clause 4.1.2 and 4.1.4 shall survive termination of this Agreement and delivery against payment for any of the Notes.
| 6.2 | Additional Dealers |
Nothing in this Agreement shall prevent the Issuer from appointing one or more additional Dealers upon the terms of this Agreement provided that any additional Dealer shall have first confirmed acceptance of its appointment upon such terms in writing to the Issuer in substantially the form of the letter set out in Schedule 5, whereupon it shall become a party to this Agreement vested with all the authority, rights, powers, duties and obligations as if originally named as a Dealer hereunder. The Issuer shall promptly inform the Dealer, the Guarantor, the Issuing and Paying Agent and the Paying Agent of any such appointment. The Issuer hereby agrees to supply to such additional Dealer, upon such appointment, such legal opinions as are specified in paragraph 6 of Schedule 1, if requested, or reliance letters in respect thereof.
| 7. | NOMINATION OF NEW ISSUER |
The Guarantor may, with the Dealer’s prior consent, at any time and from time to time nominate one or more issuers (each, an “Issuer”) under the Programme provided that such new Issuer so notifies the Dealer in writing and provides to the Dealer not less than three business days prior to the first issue of Notes by the new Issuer (a) copies of documents corresponding to those referred to in paragraph 1, 2, 3 (c) and (d), 4(a)(if relevant), 7, 8 and 9 of Schedule 1 in relation to the new Issuer, (b) the new Issuer’s written agreement to be bound by the terms of this Agreement and the Agency Agreement in form and substance satisfactory to the Dealer, (c) a legal opinion from counsel acceptable to the Dealer and qualified in the law of the jurisdiction of incorporation of the new Issuer and (d) a supplemental Information Memorandum.
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The Guarantor shall procure that the new Issuer shall comply with and discharge its obligations under this Agreement, the Agency Agreement, the Deed of Covenant executed by it and the Notes issued by it.
| 8. | NOTICES |
| 8.1 | Addressee for notices |
All notices and other communications hereunder shall, save as otherwise provided in this Agreement, be made in writing and in English (by letter or fax) and shall be sent to the intended recipient at the address or fax number and marked for the attention of the person (if any) from time to time designated by that party to the other parties hereto for such purpose. The initial address and fax number so designated by each party are set out in the Programme Summary.
| 8.2 | Effectiveness |
Any communication from any party to any other party under this Agreement shall be effective if sent by letter or fax upon receipt by the addressee, provided that any such notice or other communication which would otherwise take effect after 4.00 p.m. on any particular day shall not take effect until 10.00 a.m. on the immediately succeeding business day in the place of the addressee.
| 9. | THIRD PARTY RIGHTS |
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this Agreement.
| 10. | LAW AND JURISDICTION |
| 10.1 | Governing law |
This Agreement and all matters arising from or connected with it are governed by, and shall be construed in accordance with, English law.
| 10.2 | English courts |
The courts of England have exclusive jurisdiction to settle any dispute (a “Dispute”), arising from or connected with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement) or the consequences of its nullity.
| 10.3 | Appropriate forum |
The parties agree that the courts of England are the most appropriate and convenient courts to settle any Dispute and, accordingly, that they will not argue to the contrary.
| 10.4 | Rights of the Dealer to take proceedings outside England |
Clause 10.2 is for the benefit of the Dealer only. As a result, nothing in this Clause 10 prevents the Dealer from taking proceedings relating to a Dispute (“Proceedings”) in any other courts with jurisdiction. To the extent allowed by law, the Dealer may take concurrent Proceedings in any number of jurisdictions.
| 10.5 | Process agent |
The Issuer and the Guarantor agree that the documents which start any Proceedings and any other documents required to be served in relation to those Proceedings may be
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served on it by being delivered to Xxxxxx-Xxxx Finance Company at Xxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx, Xxxxxx XX0 0XX, Xxxxxx Xxxxxxx, marked for the attention of the Manager, Corporate Finance and the Vice President or, if different, its registered office for the time being or at any address of the Issuer in Great Britain at which process may be served on it in accordance with Part XXIII of the Companies Xxx 0000. If such person is not or ceases to be effectively appointed to accept service of process on behalf of the Issuer or the Guarantor (as the case may be), the Issuer or the Guarantor shall, on the written demand of the Dealer addressed and delivered to the Issuer or the Guarantor appoint a further person in England to accept service of process on its behalf and, failing such appointment within 15 days, the Dealer shall be entitled to appoint such a person by written notice addressed to the Issuer or the Guarantor and delivered to the Issuer or the Guarantor (as the case may be). Nothing in this paragraph shall affect the right of the Dealer to serve process in any other manner permitted by law. This clause applies to Proceedings in England and to Proceedings elsewhere.
| 10.6 | Counterparts |
This Agreement may be signed in any number of counterparts (including facsimile copies), all of which when taken together shall constitute a single agreement.
AS WITNESS the hands of the duly authorised representatives of the parties hereto the day and year first before written.
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SCHEDULE 1
CONDITION PRECEDENT DOCUMENTS
| 1. | Certified copies of the Issuer’s and Guarantor’s certificate of incorporation, as amended, and amended and restated by by-laws. |
| 2. | Certified copies of all documents evidencing the internal authorisations and approvals required to be granted by the Issuer and the Guarantor in connection with the Programme. |
| 3. | Certified or conformed copies of: |
| (a) | the Dealer Agreement, as executed; |
| (b) | the Agency Agreement, as executed; |
| (c) | the Deed of Covenant, as executed; and |
| (d) | the Guarantee, as executed. |
| 4. | Copies of: |
| (a) | the confirmation of acceptance of appointment from the agent for service of process; and |
| (b) | the confirmation that the Deed of Covenant and the Guarantee have been delivered to the Issuing and Paying Agent. |
| 5. | Legal opinions from: |
| (a) | Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel to the Guarantor as to the laws of the State of incorporation of the Guarantor; |
| (b) | Xxxxxx & Xxxxxxxxx, counsel to the Issuer as to the laws of Luxembourg; and |
| (c) | Xxxxxxxx Chance LLP, counsel to the Dealer as to the laws of England. |
| 6. | The Information Memorandum. |
| 7. | A list of the names, titles and specimen signatures of the persons authorised: |
| (a) | to sign on behalf of the Issuer and the Guarantor (as applicable), the Notes and Agreements to which they are a party; |
| (b) | to sign on behalf of each of the Issuer and the Guarantor all notices and other documents to be delivered in connection therewith; and |
| (c) | to take any other action on behalf of the Issuer and the Guarantor in relation to the Programme. |
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| 8. | Confirmation from the Issuer or the Issuing and Paying Agent that the relevant forms of Global Note have been prepared and the same delivered to the Issuing and Paying Agent. |
| 9. | Confirmation that Standard & Poor’s Ratings Services, a division of the XxXxxx-Xxxx Companies Inc. and Xxxxx’x Investors Service, Inc. respectively have granted ratings for the Programme. |
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SCHEDULE 2
SELLING RESTRICTIONS
| 1. | General |
By its purchase and acceptance of Notes issued under this Agreement, the Dealer represents, warrants and agrees that it will observe all applicable laws and regulations in any jurisdiction in which it may offer, sell, or deliver Notes; and that it will not directly or indirectly offer, sell, resell, reoffer or deliver Notes or distribute any Disclosure Document, circular, advertisement or other offering material in any country or jurisdiction except under circumstances that will result, to the best of its knowledge and belief, in compliance with all applicable laws and regulations.
No action has been or will be taken in any jurisdiction by the Issuer, the Guarantor, the Arranger or the Dealer that would permit a public offering of Notes, or possession or distribution of the Information Memorandum or any other offering material, in any county or jurisdiction where action for that purpose is required.
| 2. | The United States of America |
| 2.1 | Regulation S Restrictions |
The Notes and the Guarantee have not been and will not be registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons. The Dealer represents and agrees that it has offered and sold, and will offer and sell, Notes only outside the United States to non-U.S. persons in accordance with Rule 903 of Regulation S under the Securities Act. Accordingly, the Dealer represents and agrees that neither it, its affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts with respect to the Notes, and that it and they have complied and will comply with the offering restrictions requirement of Regulation S. The Dealer also agrees that, at or prior to confirmation of sale of Notes, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Notes from it a confirmation or notice to substantially the following effect:
“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the “Securities Act”) and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons. Terms used above have the meanings given to them by Regulation S under the Securities Act.”
Terms used in this paragraph have the meanings given to them by Regulation S under the Securities Act.
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| 2.2 | Tax Restrictions |
| 2.2.1 | Except to the extent permitted under U.S. Treas. Reg. §1.163-5(c)(2)(i)(D) (the “D Rules”), the Dealer (A) represents that it has not offered or sold, and agrees that during the restricted period it will not offer or sell, Notes (or interests therein) to a person who is within the United States or its possessions or to a United States person, and (B) represents that it has not delivered and agrees that it will not deliver within the United States or its possessions definitive Notes that are sold during the restricted period; |
| 2.2.2 | the Dealer represents that it has in effect, and agrees that throughout the restricted period it will have in effect, procedures reasonably designed to ensure that its employees and agents who are directly engaged in selling Notes (or interests therein) are aware that such Notes (or interests therein) may not be offered or sold during the restricted period to a person who is within the United States or its possessions or to a United States person, except as permitted by the D Rules; |
| 2.2.3 | if it is a United States person, the Dealer represents that it is acquiring the Notes (or interests therein) for purposes of resale outside of the United States and its possessions in connection with their original issue and that if it retains Notes (or interests therein) for its own account, it will only do so in accordance with the requirements of U.S. Treas. Reg. §1.163-5(c)(2)(i)(D)(6); and |
| 2.2.4 | with respect to each affiliate of the Dealer that acquires Notes (or interests therein) for the purpose of offering or selling such Notes (or interests therein) during the restricted period, the Dealer either (A) repeats and confirms the representations and agreements contained in subparagraphs 2.2.1 through 2.2.3 on the affiliate’s behalf or (B) agrees that it will obtain from such affiliate for the benefit of the Issuer and the Guarantor the representations and agreements contained in subparagraphs 2.2.1 through 2.2.3. |
Terms used in this paragraph 2.2 and not defined herein have the meanings given to them by the U.S. Internal Revenue Code and regulations thereunder, including the D Rules.
| 3. | The United Kingdom |
In relation to each issue of Notes, the Dealer subscribing such Notes represents, warrants and undertakes to the Issuer and the Guarantor that:
| 3.1 | No deposit-taking |
| 3.1.1 | it is a person whose ordinary activities involve it in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of its business: and |
| 3.1.2 | it has not offered or sold and will not offer or sell any such Notes other than to persons: |
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| (a) | whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses; or |
| (b) | who it is reasonable to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses, |
where the issue of the Notes would otherwise constitute a contravention of Section 19 of FSMA by the Issuer and the Guarantor;
| 3.2 | Financial promotion: it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of FSMA) received by it in connection with the issue or sale of any Notes in circumstances in which section 21(1) of FSMA does not apply to the Issuer or the Guarantor; and |
| 3.3 | General compliance: it has complied and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to any Notes in, from or otherwise involving the United Kingdom. |
4. Japan
The Notes have not been and will not be registered under the Securities and Exchange Law of Japan and, accordingly, the Dealer undertakes that it will not offer or sell any Notes, directly or indirectly, in Japan or to, or for the benefit of any Japanese Person or to others for re-offering or resale, directly or indirectly, in Japan or to any Japanese Person expect under circumstances which will result in compliance with all applicable laws, regulations and guidelines promulgated by the relevant Japanese governmental and regulatory authorities and in effect at the relevant time. For the purposes of this paragraph, “Japanese Person” shall mean any person resident in Japan, including any corporation or other entity organised under the laws of Japan.
| 5. | Luxembourg |
The Dealer agrees that the Notes may not be offered or sold to the public in or from the Grand Duchy of Luxembourg unless the requirements of Luxembourg law concerning public offerings and any applicable regulatory requirements and other laws and regulations have been complied with.
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SCHEDULE 3
PROGRAMME SUMMARY
| Issuer | ||||
| Xxxxxxx European Finance S.A. | ||||
| Address: | 00, Xxxxxx Xxxxxxxx, X-0000, Xxxxxxxxxx |
|||
| Telephone: | + 000 00 00 00 00 00 | |||
| Fax: | + 000 00 00000 00 00 | |||
| Contact: | The Director | |||
| Guarantor | ||||
| Xxxxxxx Corporation | ||||
| Address: | 0000 Xxxxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Xxxxxx Xxxxxx of America |
|||
| Telephone: | x0 000 000 0000 | |||
| Fax: | x0 000 000 0000 | |||
| Contact: | The Treasurer | |||
| Dealer and Arranger | ||||
| Xxxxxx Brothers International (Europe) | ||||
| Address: | 00 Xxxx Xxxxxx | |||
| Xxxxxx X00 0XX | ||||
| Telephone: | + 00 00 0000 0000 | |||
| Fax: | + 00 00 0000 0000 | |||
| Contact: | European Medium Term Notes and Money Markets | |||
| Issue and Paying Agent | ||||
| Deutsche Bank AG, London Branch | ||||
| Address: | Xxxxxxxxxx Xxxxx 0 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxx XX0X 0XX |
|||
| Telephone: | x00 00 0000 0000 | |||
| Fax: | x00 00 0000 0000 | |||
| Contact: | Trust & Securities Services | |||
| Maximum Amount: | Denominations: | |||
| U.S.$2,200,000,000 | U.S.$500,000 €500,000 | |||
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| £100,000 ¥100,000,000 | ||||
| (or other conventionally accepted Denominations in other currencies) provided that the Dollar Equivalent of any Note must be at least U.S.$500,000 determined based on the spot rate of exchange on the issue date. | ||||
| Governing Law: | Form of Notes: | |||
| Agreements: | English | Exchangeable Global Notes with Definitive Notes available on default or in certain other limited circumstances
Sterling Definitive Notes | ||
| Notes: | English | Notes may be issued at a discount to face value or may bear interest or may be Index Linked Notes | ||
| Minimum Term: | Maximum Term: | |||
| One day | 183 days | |||
| Clearing Systems: | Selling Restrictions: | |||
| Euroclear Bank S.A./N.V., as operator of the Euroclear system, Euroclear France S.A. as operator of the Euroclear France clearing system, Clearstream Banking, société anonyme, Luxembourg (or such other recognised clearing system as may be agreed between the Issuer and the Issuing and Paying Agent and in which Notes may from time to time be held) | U.S.A. United Kingdom Japan Luxembourg | |||
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Agent for Service of Process:
Xxxxxx-Xxxx Finance Company
| Address: | Xxxxxx Xxxxx Xxxxxx Xxxx Xxxxxxxx Xxxxxx XX0 0XX Xxxxxx Xxxxxxx | |
| Telephone: | x00 00 0000 0000 | |
| Fax: | x00 00 0000 0000 | |
| Contact: | Vice President and Manager, Corporate Finance | |
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SCHEDULE 4
INCREASE OF MAXIMUM AMOUNT
[Letterhead of Issuer]
[Date]
| To: | [•] (as Dealer) |
[•] (as Issuing and Paying Agent)
Dear Sirs
U.S.$ • Euro-commercial paper programme
We refer to a dealer agreement dated [•] May 2006 (the “Dealer Agreement”) between ourselves as the Issuer, Xxxxxxx Corporation as the Guarantor, the Arranger and you as Dealer relating to a U.S.$ 2,200,000,000 Euro-commercial paper programme (the “Programme”). Terms used in the Dealer Agreement shall have the same meaning in this letter.
In accordance with Clause 2.5 of the Dealer Agreement, we hereby notify each of the addressees listed above that the Maximum Amount of the Programme is to be increased from U.S.$2,200,000,000 to U.S.$[•],000,000,000 with effect from [date], subject to delivery of the following documents:
| (a) | an updated or supplemental Information Memorandum reflecting the increase in the Maximum Amount of the Programme. |
| (b) | certified copies of all documents evidencing the internal authorisations and approvals required to be granted by the Issuer and the Guarantor for such increase in the Maximum Amount; |
| (c) | certified copies of [specify any governmental or other consents required by the Issuer or the Guarantor for such increase]; |
| (d) | legal opinions from (i) Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel to the Guarantor, as to the laws of the State of incorporation of the Guarantor, (ii) Xxxxxx & Xxxxxxxxx, counsel to the Issuer, as to the laws of Luxembourg and (iii) Xxxxxxxx Chance LLP relating to such increase; |
| (e) | a list of names, titles and specimen signatures of the persons authorised to sign on behalf of the Issuer and the Guarantor all notices and other documents to be delivered in connection with such an increase in the Maximum Amount; and |
| (f) | written confirmation that [Standard & Poor’s Ratings Services, a division of the XxXxxx-Xxxx Companies Inc.] [Xxxxx’x Investors Service, Inc.] [Fitch IBCA, Inc.] [Duff & Xxxxxx Credit Rating Co.] respectively are maintaining their current ratings for the Programme. |
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From the date on which such increase in the Maximum Amount becomes effective, all references in the Dealer Agreement to the Maximum Amount or the amount of the Programme shall be construed as references to the increased Maximum Amount as specified herein.
Yours faithfully
|
for and on behalf of |
| Xxxxxxx European Finance S.A. |
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SCHEDULE 5
APPOINTMENT OF NEW DEALER
[Letterhead of Issuer]
[Date]
| To: | [Name of new Dealer] |
Dear Sirs
U.S.$ 2,200,000,000 Euro-commercial paper programme
We refer to a dealer agreement dated [•] May 2006 (the “Dealer Agreement”) between ourselves as Issuer, Xxxxxxx Corporation as the Guarantor, the Arranger and the Dealer relating to a U.S.$ 2,200,000,000 Euro-commercial paper programme (the “Programme”). Terms used in the Dealer Agreement shall have the same meaning in this letter.
In accordance with Clause 6.2 of the Dealer Agreement, we hereby appoint you as an additional dealer for the Programme upon the terms of the Dealer Agreement with [immediate effect/effect from [date]]. Please confirm acceptance of your appointment upon such terms by signing and returning to us the enclosed copy of this letter, whereupon you will, in accordance with Clause 6.2 of the Dealer Agreement, become a party to the Dealer Agreement vested with all the authority, rights, powers, duties and obligations as if originally named as a Dealer thereunder.
Yours faithfully
|
for and on behalf of |
| Xxxxxxx European Finance S.A. |
[On copy]
We hereby confirm acceptance of our appointment as a Dealer upon the terms of the Dealer Agreement referred to above. For the purposes of Clause 8 (Notices), our contact details are as follows:
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[Name of Dealer]
| Address: | [ ] | |||
| Telephone: | [ ] | |||
| Fax: | [ ] | |||
| Telex: | [ ] | |||
| Contact: | [ ] | |||
| Dated: |
| Signed: |
| for [Name of new Dealer] |
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SCHEDULE 6
FORM OF CALCULATION AGENCY AGREEMENT
THIS AGREEMENT is made on [date]
BETWEEN
| (1) | XXXXXXX EUROPEAN FINANCE S.A. (the “Issuer”); |
| (2) | XXXXXXX CORPORATION as guarantor (the “Guarantor”); |
| (3) | [CALCULATION AGENT], as the calculation agent appointed pursuant to Clause 6 hereof (the “Calculation Agent”, which expression shall include any successor thereto). |
WHEREAS:
| (A) | Under a dealer agreement (as amended, supplemented and/or restated from time to time, the “Dealer Agreement”) dated [•] 2006 and made between the Issuer, the Guarantor, the Arranger and the Dealer referred to therein, and an issuing and paying agency agreement (as amended, supplemented and/or restated from time to time, the “Agency Agreement”) dated [•] 2006 and made between the Issuer and the agents referred to therein, the Issuer established a Euro-commercial paper programme (the “Programme”). |
| (B) | The Dealer Agreement contemplates, among other things, the issue under the Programme of index linked notes and provides for the appointment of calculation agents in relation thereto. Each such calculation agent’s appointment shall be on substantially the terms and subject to the conditions of this Agreement. |
IT IS AGREED as follows:
| 1. | INTERPRETATION |
| 1.1 | Definitions |
Terms not expressly defined herein shall have the meanings given to them in the Dealer Agreement or the Agency Agreement.
| 1.2 | Legislation |
Any reference in this Agreement to any legislation (whether primary legislation or regulations or other subsidiary legislation made pursuant to primary legislation) shall be construed as a reference to such legislation as the same may have been, or may from time to time be, amended or re-enacted.
| 1.3 | Index Linked Notes |
“Relevant Index Linked Notes” means such Index Linked Notes in respect of which the Calculation Agent is appointed.
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| 2. | APPOINTMENT OF CALCULATION AGENT |
The Issuer appoints the Calculation Agent as its agent for the purpose of calculating the redemption amount and/or, if applicable, the amount of interest in respect of the Relevant Index Linked Notes upon the terms and subject to the conditions of this Agreement. The Calculation Agent accepts such appointment.
| 3. | DETERMINATION AND NOTIFICATION |
| 3.1 | Determination |
The Calculation Agent shall determine the redemption amount of, and/or, if applicable, the amount of interest payable on, each Relevant Index Linked Note in accordance with the redemption and/or interest calculation applicable thereto.
| 3.2 | Notification |
The Calculation Agent shall as soon as it has made its determination as provided for in Clause 3.1 above (and, in any event, no later than the close of business on the date on which the determination is made) notify the Issuer and the Issuing and Paying Agent (if other than the Calculation Agent) of the redemption amount and/or, if applicable, the amount of interest so payable.
| 4. | STAMP DUTIES |
The Issuer will pay all stamp, registration and other taxes and duties (including any interest and penalties thereon or in connection therewith) payable in connection with the execution, delivery and performance of this Agreement.
| 5. | INDEMNITY AND LIABILITY |
| 5.1 | Indemnity |
The Issuer shall indemnify and hold harmless on demand the Calculation Agent against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax) which it may incur arising out of, in connection with or based upon the exercise of its powers and duties as Calculation Agent under this Agreement, except such as may result from its own negligence or bad faith or that of its officers, employees or agents.
| 5.2 | Liability |
The Calculation Agent may consult as to legal matters with lawyers selected by it, who may be employees of, or lawyers to, the Issuer. If such consultation is made, the Calculation Agent shall be protected and shall incur no liability for action taken or not taken by it as Calculation Agent or suffered to be taken with respect to such matters in good faith, without negligence and in accordance with the opinion of such lawyers.
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| 6. | CONDITIONS OF APPOINTMENT |
The Calculation Agent and the Issuer agree that its appointment will be subject to the following conditions:
| (a) | No obligations: in acting under this Agreement, the Calculation Agent shall act as an independent expert and shall not assume any obligations towards or relationship of agency or trust for the Issuer or the owner or holder of any of the Relevant Index Linked Notes or any interest therein; |
| (b) | Notices: unless otherwise specifically provided in this Agreement, any order, certificate, notice, request, direction or other communication from the Issuer made or given under any provision of this Agreement shall be sufficient if signed or purported to be signed by a duly authorised employee of the Issuer; |
| (c) | Duties: the Calculation Agent shall be obliged to perform only those duties which are set out in this Agreement and in the redemption and/or interest calculation relating to the Relevant Index Linked Notes; |
| (d) | Ownership, interest: the Calculation Agent and its officers and employees, in its individual or any other capacity, may become the owner of, or acquire any interest in, any Relevant Index Linked Notes with the same rights that the Calculation Agent would have if it were not the Calculation Agent hereunder; and |
| (e) | Calculations and determinations: all calculations and determinations made pursuant to this Agreement by the Calculation Agent shall (save in the case of manifest error) be binding on the Issuer, the Calculation Agent and (if other than the Calculation Agent) the holder(s) of the Relevant Index Linked Notes and no liability to such holder(s) shall attach to the Calculation Agent in connection with the exercise by the Calculation Agent of its powers, duties or discretion under or in respect of the Relevant Index Linked Notes in accordance with the provisions of this Agreement, except such as may result from the Calculation Agent’s own negligence or bad faith or that of its officers, employees or agents. |
| 7. | ALTERNATIVE APPOINTMENT |
If, for any reason, the Calculation Agent ceases to act as such or fails to comply with its obligations under Clause 3, the Issuer shall appoint the Issuing and Paying Agent as calculation agent in respect of the Relevant Index Linked Notes.
| 8. | THIRD PARTY RIGHTS |
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this Agreement.
| 9. | NOTICES |
Clause 8 (Notices) of the Dealer Agreement shall apply to this Agreement mutatis mutandis.
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| 10. | LAW AND JURISDICTION |
| 10.1 | Governing law |
This Agreement and all matters arising from or connected with it are governed by, and shall be construed in accordance with, English law.
| 10.2 | English courts |
The courts of England have exclusive jurisdiction to settle any dispute (a “Dispute”), arising from or connected with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement) or the consequences of its nullity.
| 10.3 | Appropriate forum |
The parties agree that the courts of England are the most appropriate and convenient courts to settle any Dispute and, accordingly, that they will not argue to the contrary.
| 10.4 | Rights of the Calculation Agent to take proceedings outside England |
Clause 10.2 is for the benefit of the Calculation Agent only. As a result, nothing in this Clause 10 prevents the Calculation Agent from taking proceedings relating to a Dispute (“Proceedings”) in any other courts with jurisdiction. To the extent allowed by law, the Calculation Agent may take concurrent Proceedings in any number of jurisdictions.
| 10.5 | Process agent |
The Issuer and the Guarantor agree that the documents which start any Proceedings and any other documents required to be served in relation to those Proceedings may be served on it by being delivered to Vedeer Root Finance Company at Xxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx, Xxxxxx XX0 0XX, Xxxxxx Xxxxxxx for the attention of the Vice President and the Managers, Corporate Finance or, if different, its registered office for the time being or at any address of the Issuer or the Guarantor in Great Britain at which process may be served on it in accordance with Part XXIII of the Companies Xxx 0000. If such person is not or ceases to be effectively appointed to accept service of process on behalf of the Issuer or the Guarantor, the Issuer or the Guarantor, as the case may be, shall, on the written demand of the Dealer addressed and delivered to the Issuer or the Guarantor appoint a further person in England to accept service of process on its behalf and, failing such appointment within 15 days, the Dealer shall be entitled to appoint such a person by written notice addressed to the Issuer or the Guarantor and delivered to the Issuer or the Guarantor, as the case may be. Nothing in this paragraph shall affect the right of the Dealer to serve process in any other manner permitted by law. This clause applies to Proceedings in England and to Proceedings elsewhere.
| 11. | COUNTERPARTS |
This Agreement may be signed in any number of counterparts (including facsimile copies), all of which when taken together shall constitute a single agreement.
AS WITNESS the hands of the duly authorised representatives of the parties hereto the day and year first before written.
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| XXXXXXX EUROPEAN FINANCE S.A. | ||
| By: |
| |
| XXXXXXX CORPORATION | ||
| By: |
| |
| [NAME OF CALCULATION AGENT] | ||
| By: |
| |
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Signature Page
| The Issuer | ||
| XXXXXXX EUROPEAN FINANCE S.A. | ||
| By: | /s/ Xxxxx X. XxXxxxx | |
| The Guarantor | ||
| XXXXXXX CORPORATION | ||
| By: | /s/ Xxxxx X. XxXxxxx | |
| The Arranger | ||
| XXXXXX BROTHERS INTERNATIONAL (EUROPE) | ||
| By: | /s/ Xxxxx XxXxxxxx | |
| The Dealer | ||
| XXXXXX BROTHERS INTERNATIONAL (EUROPE) | ||
| By: | /s/ Xxxxx XxXxxxxx | |
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